Filed: Jan. 13, 2020
Latest Update: Jan. 13, 2020
Summary: UNPUBLISHED RULING ON ENTITLEMENT 1 BRIAN H. CORCORAN , Chief Special Master . On July 9, 2018, Paula Tyson 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 Petitioner alleges she suffered a "Shoulder Injury Related to Vaccine Administration (SIRVA), which was caused by the influenza ("flu") vaccination she received in her right shoulder on February 8, 2017. Petition a
Summary: UNPUBLISHED RULING ON ENTITLEMENT 1 BRIAN H. CORCORAN , Chief Special Master . On July 9, 2018, Paula Tyson 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 Petitioner alleges she suffered a "Shoulder Injury Related to Vaccine Administration (SIRVA), which was caused by the influenza ("flu") vaccination she received in her right shoulder on February 8, 2017. Petition at..
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UNPUBLISHED
RULING ON ENTITLEMENT1
BRIAN H. CORCORAN, Chief Special Master.
On July 9, 2018, Paula Tyson 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 Petitioner alleges she suffered a "Shoulder Injury Related to Vaccine Administration (SIRVA), which was caused by the influenza ("flu") vaccination she received in her right shoulder on February 8, 2017. Petition at ¶¶ 2 and 18. The case was assigned to the Special Processing Unit of the Office of Special Masters.
Respondent filed a Rule 4(c) Report on July 19, 2019. ECF No. 19. In his report, Respondent argued that Petitioner had not met her burden of establishing that the onset of her alleged shoulder injury occurred within 48 hours of her February 8, 2017 flu vaccination. Id. at 5-6. In a Scheduling Order filed on August 23, 2019, then-Chief Special Master Nora Beth Dorsey reported that she had reviewed the record and determined that a fact hearing or briefing would not be necessary. ECF No. 20. A deadline was set for closing the record on the matter of onset. Id. Pursuant to the scheduling order, Petitioner submitted affidavits from three fact witnesses. ECF Nos. 21 and 23
On October 25, 2019, I issued a Findings of Fact Ruling, finding that there is preponderant evidence to establish "that the onset of Petitioner's right shoulder injury occurred within 48 hours of her February 8, 2017 flu vaccination." Fact Ruling at 5 (ECF No. 25). Respondent was ordered to file an amended Rule 4 Report reflecting Respondent's position in light of the above finding of fact. Id. at 5.
On January 19, 2020, Respondent filed an amended Rule 4 report indicating that, "while preserving his right to appeal the Chief Special Master's October 25, 2019 Findings of Fact [that the onset of Petitioner's right shoulder injury began within 48 hours of receipt of the flu vaccine], respondent submits that petitioner has otherwise satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation ("QAI") for SIRVA . . . ." Rule 4 Report at 2. Specifically, respondent found that
Based on the Chief Special Master's fact ruling, and medical record evidence submitted in this case, DICP will not continue to contest that petitioner suffered SIRVA as defined by the Vaccine Injury Table. Specifically, petitioner had no recent history of pain, inflammation, or dysfunction of her right shoulder; the onset of pain and limited motion occurred within 48 hours after receipt of an intramuscular vaccination; the pain was limited to the shoulder in which the vaccine was administered; and, no other condition or abnormality, such as brachial neuritis, has been identified to explain petitioner's right shoulder pain. In addition, petitioner suffered the residual effects of her condition for more than six months.
Id. at 3 (footnote omitted). Respondent adds that "based on the record as it now stands and subject to his right to appeal the Findings of Fact, respondent does not dispute that petitioner has satisfied all legal prerequisites for compensation under the Act . . . ." and further advises that "he will not defend the case on other grounds during further proceedings before the Office of Special Masters." Id.3
In view of Respondent's position and the evidence of record, I find that Petitioner is entitled to compensation.
IT IS SO ORDERED.
