Filed: Mar. 20, 2019
Latest Update: Mar. 20, 2019
Summary: UNPUBLISHED RULING ON ENTITLEMENT 1 NORA BETH DORSEY , Chief Special Master . On February 16, 2016, Elizabeth Schandel ("petitioner" or "Ms. Schandel") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq., 2 (the "Vaccine Act" or "Program") "for injuries, including a torn rotator cuff in her right shoulder, resulting from adverse effects of a trivalent influenza vaccination received on October 20, 2011." Petition at 1.
Summary: UNPUBLISHED RULING ON ENTITLEMENT 1 NORA BETH DORSEY , Chief Special Master . On February 16, 2016, Elizabeth Schandel ("petitioner" or "Ms. Schandel") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq., 2 (the "Vaccine Act" or "Program") "for injuries, including a torn rotator cuff in her right shoulder, resulting from adverse effects of a trivalent influenza vaccination received on October 20, 2011." Petition at 1. P..
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UNPUBLISHED
RULING ON ENTITLEMENT1
NORA BETH DORSEY, Chief Special Master.
On February 16, 2016, Elizabeth Schandel ("petitioner" or "Ms. Schandel") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the "Vaccine Act" or "Program") "for injuries, including a torn rotator cuff in her right shoulder, resulting from adverse effects of a trivalent influenza vaccination received on October 20, 2011." Petition at 1. Petitioner filed amended petitions on March 20 and June 20, 2018, asserting that she suffered a shoulder injury related to vaccine administration ("SIRVA"), which included a strain/sprain, tendinopathy, and tear of her right rotator cuff, bursitis, and adhesive capsulitis, caused-in-fact by the influenza vaccination she received on October 20, 2011. (ECF Nos. 52, 57). The case was assigned to the Special Processing Unit ("SPU").
On November 9, 2018, the undersigned issued a Fact Ruling, finding there is preponderant evidence to establish
that (1) the record of vaccination is sufficient to establish petitioner received, intramuscularly, the vaccination alleged as causal; (2) there is sufficient other evidence to establish the vaccination was administered in petitioner's right arm; (3) the onset of petitioner's pain occurred within 48 hours, specifically on the day of vaccination; (4) petitioner had no prior problem with her right shoulder/upper arm; and (4) the clinical course of petitioner's injury mirrored what is seen typically in a SIRVA.
Fact Ruling at 2 (ECF No. 67). Petitioner was ordered to file updated medical records, and respondent was ordered to file his Rule 4 report. Id. at 12.
Respondent has filed his Rule 4 report indicating that, although he "reserves his right to a potential appeal of the Ruling on Facts, particularly with regard to the onset of petitioner's SIRVA,"3 he recognizes the undersigned's "factual findings are the law of the case . . . [and] advises that he will not defend the case on other grounds during further proceedings." Rule 4 Report, filed Mar. 5, 2019, at 3 (ECF No. 74). Specifically, respondent indicates that "[i]n light of the Chief Special Master's factual ruling, and the medical record evidence submitted in this case, DICP has concluded that petitioner's alleged injury is consistent with SIRVA and that it was caused-in-fact by the flu vaccine she received on October 20, 2011." Id. at 6. Respondent adds that "based on the record as it now stands and subject to his right to appeal the factual ruling, respondent does not dispute that petitioner has satisfied all legal prerequisites for compensation under the Act." 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.
