Thomas v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-144V
UNPUBLISHED
CYNTHIA THOMAS, Chief Special Master Corcoran
Petitioner, Filed: April 3, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT 1
On January 29, 2019, Cynthia Thomas 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”) as a result of her November 1, 2017 influneza (“flu”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On April 1, 2020, Respondent filed a Rule 4(c) Report Recommending
Compensation and Proffer of Compensation in which he concedes that Petitioner is
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically,
Respondent indicates that
[m]edical personnel at the Division of Injury Compensation Programs,
Department of Health and Human Services (DICP), have reviewed the
facts of this case and concluded that petitioner’s claim meets the Table
criteria for SIRVA. Specifically, petitioner had no history of pain,
inflammation or dysfunction of the affected shoulder prior to intramuscular
vaccine administration that would explain the alleged signs, symptoms,
examination findings, and/or diagnostic studies occurring after vaccine
injection; she more likely than not suffered the onset of pain within forty-
eight hours of vaccine administration; her pain and reduced range of
motion were limited to the shoulder in which the intramuscular vaccine
was administered; and there is no other condition or abnormality present
that would explain petitioner’s symptoms. 42 C.F.R. § 100.3(a), (c)(10).
Therefore, petitioner is entitled to a presumption of vaccine causation.
Id. at 3. Respondent further agrees that
[w]ith respect to other statutory and jurisdictional issues, the records show
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. See 42 U.S.C. §§ 300aa-
11(c)(1)(D)(i). Petitioner also avers that she “never received an award or
settlement for [her] vaccine injuries, nor [has she] filed a civil action.” Ex. 5
at 1. Thus, in light of the information contained in petitioner’s medical
records and affidavit, respondent concedes that entitlement to
compensation is appropriate under the terms of the Vaccine Act.
Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2