Filed: Apr. 18, 2017
Latest Update: Apr. 18, 2017
Summary: Unpublished RULING ON ENTITLEMENT 1 NORA BETH DORSEY , Chief Special Master . On May 25, 2016, Deborah Marino ("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 right shoulder injuries as a result of receiving the influenza ("flu") vaccine on September 25, 2014. Petition at 1-4. The case was assigned to the Special Processing Unit ("SPU") of t
Summary: Unpublished RULING ON ENTITLEMENT 1 NORA BETH DORSEY , Chief Special Master . On May 25, 2016, Deborah Marino ("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 right shoulder injuries as a result of receiving the influenza ("flu") vaccine on September 25, 2014. Petition at 1-4. The case was assigned to the Special Processing Unit ("SPU") of th..
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Unpublished
RULING ON ENTITLEMENT1
NORA BETH DORSEY, Chief Special Master.
On May 25, 2016, Deborah Marino ("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 right shoulder injuries as a result of receiving the influenza ("flu") vaccine on September 25, 2014. Petition at 1-4. The case was assigned to the Special Processing Unit ("SPU") of the Office of Special Masters.
I. Summary of Procedural History
On July 7, 2016, the staff attorney assigned to manage this case on behalf of the undersigned held the initial telephonic status conference. Paul Brazil appeared for petitioner. Amy Kokot appeared for respondent. At the conference, respondent asked that petitioner file additional medical records, if available, to corroborate her assertions regarding onset and course. Respondent also requested any available medical records from three years prior to vaccination. Petitioner's counsel stated his belief that all available records had been obtained and filed; however, he agreed to follow up with petitioner on the matter. See Sched. Order, issued July 8, 2016 (ECF No. 8).
On August 11, 2016, petitioner filed additional medical records and a second statement of completion.3 Thereafter, respondent was ordered to file a status report regarding his litigative position. See Sched. Order, issued Aug. 17, 2016 (ECF No. 11). On September 19, 2016, respondent reported that he was not interested in settlement and wished instead to file a Rule 4(c) Report contesting entitlement. (ECF No. 12).
Respondent filed his Rule 4(c) Report on October 28, 2016. In respondent's view, petitioner had failed to provide any "reliable evidence to demonstrate that her flu vaccination on September 25, 2014, caused her right shoulder injury." Rule 4(c) Report, filed Oct. 28, 2016 (ECF No 14), at 6.
On November 4, 2016, the staff attorney convened a status conference to discuss possible next steps. The parties agreed that a fact hearing would be helpful since respondent's opposition centered on the onset of petitioner's symptoms and her seven-month delay in seeking treatment.4 A fact hearing would afford petitioner an opportunity to describe in detail the circumstances of her vaccination, the onset of her symptoms, the nature of her injury, and the reasons for her delay in seeking treatment. See Sched. Order, issued Nov. 4, 2016 (ECF No. 15).
Based on the parties' input, the undersigned scheduled a fact hearing for March 2, 2017, in Washington, D.C. See Pre-Hearing Order, issued Dec. 16, 2016 (ECF No. 19). Petitioner filed a witness list and corresponding affidavits on February 16, 2017. (ECF No. 22). Respondent did not plan to call any witnesses.
II. Fact Hearing
The undersigned held the fact hearing as planned, with petitioner and two other lay witnesses testifying via videoconference.5 At the conclusion of the proceeding, the undersigned informed the parties that she intended to issue a ruling from the bench. See Hearing Transcript ("Tr."), filed Mar. 16, 2017 (ECF No. 25), at 56. Both parties agreed to this proposed action. Id.
After a short recess, the undersigned returned and read her ruling into the record. Tr. at 57-62. The undersigned stated that there were two issues to be resolved: (1) the onset of petitioner's symptoms, and (2) whether petitioner sustained a shoulder injury related to vaccine administration ("SIRVA"). With regard to the onset of symptoms, the undersigned found that petitioner experienced pain "immediately after the flu vaccine was administered." Tr. at 60. With regard to whether petitioner suffered a SIRVA, the undersigned found that petitioner fulfilled all of the criteria for that injury.6 Tr. at 60-61.
Having resolved the pertinent factual issues, the undersigned then found that petitioner had met her burden of proving causation-in-fact under Althen v. HHS, 418 F.3d 1274 (Fed. Cir. 2005). Tr. at 61.
III. Conclusion
On March 20, 2017, the undersigned afforded the parties 14 days in which to file, or request to file, additional relevant evidence in this matter. See Order, issued Mar. 20, 2017 (ECF No. 26). The order advised the parties that after 14 days, the evidence in this matter would be closed and a ruling on entitlement would issue. No additional evidence, or request to file evidence, was submitted.
In view of the submitted evidence, including the medical records, credible witness testimony, and findings of fact, the undersigned finds petitioner entitled to Vaccine Act compensation.
IT IS SO ORDERED.
