# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 1094 V

Filed: December 18, 2015

Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

BETHANY ZELLMER

- CESNIK

, *

*

Petitioner, * Damages Decision B ased on Proffer;

* Influenza ;

* Shoulder Injury ( “ SIRVA ” ) ;

SECRETARY OF HEALTH * Special Processing Unit (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Paul Brazil, Muller Brazil, LLP, Dresher, PA

, for petitioner.

Douglas Ross , U

. S

. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey

, Chief Special Master:

On September 29, 2015

, 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” or “Program”]. Petitioner alleges that she suffered a shoulder injury

following receipt of her September 23, 2014 influenza vaccination

. Petit ion at 1

. The

case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 16, 2 015

, a ruling on entitlement was issued , finding petitioner

entitled to compensation for a shoulder injury related to vaccine administration

( “ SIRVA ” ) . On December 18, 2015 , respondent filed a p roffer on a ward of

compensation [“Proffer”] indicating petitioner should be awarded $ 75,000.00

. Proffer at

1

. In the Proffer, respondent represented that petitioner agrees with the proffered

1 Because this unpublished decision contains a reasoned explanatio n for the action in this case, the

undersigned intend s to post it on the United States Court of Federal Claims' website, in accordance with

the E

- Government Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amende d

at 44 U.S.C. § 3501 note (2006 )) . In accordance with Vaccine Rule 18(b ), petitioner has 14 days to

identify and move to redact medical or other information, the disclosure of which would constitute an

unwarranted invasion of privacy. If, upon review, the undersigned agree s that the identified material fits

within this defin ition, the undersigned will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for

ease of citation, all “§” references to the Vaccine Act will be to the pertinent su bparagraph of 42 U.S.C. §

300aa (2012).award. Based on the record as a whole, the undersigned finds that petitioner is entitled

to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned award s

petitioner a lump sum payment of $ 7 5,000.00 in the form of a check payable to

petitioner, B ethany Zellmer

- Cesnik

. Th is amount represent s compensation for all

damages that would be available under § 300aa

- 15(a).

The clerk of the court is directed to enter judgment in accordance with this

decision. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

*

BETHANY ZELLMER

, *

*

Petitioner, *

*

v

. * No. 1 5

- 10 94 V (ECF)

* C HIEF S PECIAL M ASTER

* N ORA B ETH D ORSEY

SECRETARY OF HEALTH *

AND HUMAN SERVICES

, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On December 16, 2015 , the Chief S pecial M aster found that a preponderance of the

medical evidence indicates that petitioner suffered a shoulder injury related to vaccine

administration (“SIRVA”), which was causally related to the flu vaccination she received on

Septem b e r 23 , 201 4

. The parties have now addre ss ed the amount of compensation to be

awarded in this case.

I. Items of Compensation

Based upon the evidence of record, respondent proffer s that petitioner should be awarded

a total lump sum of $ 7 5 ,000.00, which amount represents all elements of compensation to which

petitioner would be entitled under 42 U.S.C. § 300aa

- 15(a). 1 Petitioner agrees.

1 Should petitioner die prior to entry of judgment, respondent would oppose any award for future

medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the

right to move the Court for appropriate relief.2 II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment of $ 7 5 ,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

GLENN A. M ACLEOD

Senior Trial Counsel

Torts Branch, Civil Division

/s/ DOUGLAS ROSS

DOUGLAS ROSS

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146, Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Tel.: (202) 616

- 3667

DATE: Dec e mber 1 7 , 2015