UNPUBLISHED

DECISION ON ATTORNEYS' FEES AND COSTS1

NORA BETH DORSEY, Chief Special Master.

On September 15, 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 a shoulder injury related to vaccine administration ("SIRVA") as a result of her October 4, 2013 influenza ("flu") vaccination. Petition at 1. On July 18, 2017, the undersigned issued a decision awarding compensation to petitioner based on the parties' stipulation. (ECF No. 26).

On April 4, 2018, petitioner filed a motion for leave to file attached petitioner's counsel's petition for fees out of time (ECF No. 30) and a motion for attorneys' fees and costs. (ECF No. 30-1). Petitioner requests attorneys' fees in the amount of $7,275.00 and attorneys' costs in the amount of $223.48. Id. at 6. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. (ECF No. 31). Thus, the total amount requested is $7,498.48.

On April 17, 2018, respondent filed a response to petitioner's motion. (ECF No. 33). Respondent states that in petitioner's motion, "[a]lthough the application is untimely under Vaccine Rule 13, respondent defers to the Chief Special Master as to whether petitioner should be denied an award of fees and costs on this basis." Id. at 2. Respondent argues that "[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs." Id. at 2. Respondent adds, however, that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 3. Respondent "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 4.

On April 23, 2018, petitioner filed a reply. (ECF No. 34). Petitioner states that "she concurs with Respondent's Response and respectfully requests this Honorable Court consider Petitioner's Counsel's Petition for Fees out of time." Id. at 1.

Notwithstanding that petitioner's application for fees and costs is approximately 45 days out of time, the undersigned finds counsel's explanation for the delay (confusion regarding judgment versus election to accept judgment) to be reasonable in this instance and the delay was not protracted. See, e.g. Turner v. Sec'y Health & Human Servs., No. 99-544, 2007 WL 4410030, at *13 (Fed. Cl. Spec. Mstr. Nov. 30, 2007)(awarding attorneys' fees and costs despite the application having been filed one month after the expiration of the 180 day deadline under Vaccine Rule 13); but see also Verity v. Sec'y Health & Human Servs., No. 11-106V, 2017 WL 1709709 (Fed. Cl. Spec. Mstr. Mar. 13, 2017)(denying an application for attorneys' fees and costs filed nearly three years late and without a reasonable explanation for the failure to timely file).

The undersigned has reviewed the billing records submitted with petitioner's request. In the undersigned's experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates.

The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). Based on the reasonableness of petitioner's request, the undersigned GRANTS petitioner's motion for attorneys' fees and costs.

Accordingly, the undersigned awards the total of $7,498.483 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Paul S. Cantor.

The clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.