UNPUBLISHED
DECISION ON JOINT STIPULATION1
NORA BETH DORSEY, Chief Special Master.
On October 31, 2016, 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 from Shoulder Injury Related to Vaccine Administration ("SIRVA") in her left shoulder following a Tetanus-Diphtheria-acellular Pertussis ("Tdap") vaccination on September 24, 2014. Petition at 1-2; Stipulation, filed January 17, 2018, at ¶¶ 1-2. Petitioner further alleges that the vaccine was administered in the United States, she suffered the effects of the injury for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 3-5. Respondent "denies that petitioner's alleged shoulder injury and residual effects were caused-in-fact by the Tdap vaccine" and "further denies that the Tdap vaccine caused petitioner any other injury or her current condition." Stipulation at ¶ 6.
Nevertheless, on January 17, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
(1) A lump sum of $40,000.00 in the form of a check payable to petitioner.
(2) A lump sum of $885.92, which represents reimbursement of a Medicaid lien for services rendered on behalf of Cheryl Walker, in the form of a check payable jointly to petitioner and:
MD-MDH
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, MD 21203
Attn: Raheem King, Recoveries Officer
MA#: 30-614922-600
Petitioner agrees to endorse this payment to the State.
These amounts represent compensation for all items of damages that would be available under 42 U.S.C. § 300aa-15(a). Id. The undersigned approves the requested amount for petitioner's compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
STIPULATION
The parties hereby stipulate to the Following matters:
1. Cheryl Walker ("petitioner.). riled a petition for vaccine compensation under the National Vaccine injury Compensation Program. 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of a tetanus-diphtheria-acellular pertussis ("Tdap".) vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a)
2. Petitioner received a Tdap vaccine on September 24, 2014.
3. [he vaccine was administered within the United States.
4. Petitioner alleges that she sustained alert shoulder injury that was caused-in-fact by the Tdap vaccine. Petitioner further alleges that she suffered the residual effects a her alleged injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf a result of her alleged injury.
6. Respondent denies that petitioner's alleged shoulder injury and residual effects were caused-in-fact by the Tdap vaccine. Respondent further denies that the Tdap vaccine caused petitioner any other injury or her current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall he settled and that a decision should he entered awarding the compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable alter an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and alter petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payments:
a. A lump sum of S40,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a) except as set forth in paragraph 8.b; and
b. lump sum of $885.92. which amount represents reimbursement of a Medicaid lien for services rendered on behalf of Cheryl Walker, in the form of a check payable jointly to petitioner and
MD-MDH
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, MD 21203
Attn: Raheem King. Recoveries Officer
MA#: 30-614922-600
Petitioner agrees to endorse this payment to the State.
Q. As soon as practicable after the entry of judgment on entitlement in this case, and alter petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300an-21(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.
10. Petitioner and her attorney represent that Compensation to he provided pursuant to this Stipulation is not for any items or services liar which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably he expected to be made under any State compensation programs, insurance policies. Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will he made in accordance with 42 U.S.C. § 300aa-15(i). subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
13. In return the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature that have been brought, could have been brought, or could he timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 § 300aa-10 et seq., on account or in any way growing out of any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the Tdap vaccination administered on October 17, 2015, as alleged in a petition for vaccine compensation Filed on or about October 31, 2016, in the United States Court or Federal Claims as petition No. 16-1434V.
14. If petitioner should die prior to entry of judgment, this agreement shall he voidable upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims Fails to enter judgment in conformity with a decision that is in complete conformity with, the terms of this Stipulation, then the parties' settlement and this Stipulation shall he voidable at the sole discretion of either party.
16. This Stipulation expresses a lull and complete negotiated settlement or liability and damages claimed under the National Childhood Vaccine Injure Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not he construed as an admission by the United States or the Secretary of Health and Human Services that the Tdap vaccine caused petitioner's alleged injury or any other injury or her current disabilities.
18. All rights and obligations a petitioner hereunder shall apply equally to petitioner's heirs, executor, administrators, successors, and/or assigns.
