Smyth v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1927V
Filed: April 25, 2019
UNPUBLISHED
KIMBERLY SMYTH,
Petitioner, Special Processing Unit (SPU);
v. Ruling on Entitlement; Concession;
Table Injury; Influenza (Flu) Vaccine;
SECRETARY OF HEALTH AND Shoulder Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On December 12, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on November 25,
2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On April 24, 2019, respondent filed his Rule 4(c) report in which he concedes
that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling will be available to anyone with access to the internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management
and Promotion of Electronic Government Services).
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
at 1. Specifically, respondent has “concluded that petitioner’s claim meets the Table
criteria for SIRVA.” Id. at 3. Respondent further agrees that “the case was timely filed,
that the vaccine was received in the United States, and that petitioner satisfies the
statutory severity requirement by suffering the residual effects or complications of her
injury for more than six months after vaccine administration”. Id. Additionally,
respondent notes that “petitioner avers that no civil action or proceedings have been
pursued in connection with the vaccine-related injury.” Id.
In view of respondent’s position and the evidence of record, the
undersigned finds that petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master