# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20

- 888 V

UNPUBLISHED

THOMAS BIERBAUM

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: January 11, 2022

Special Processing Unit (SPU);
Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Administration (SIRVA)

David John Carney, Green & Schafle LLC, Philadelphia, PA , for Petitioner.

Wei Kit Tai , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On July 22, 2020

, Thomas Bierbaum 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 he suffered a Shoulder Injury Related to Vaccine Administration ( “ SIRVA ” ) as a result of his October 11, 2 0 18 influ neza ( “ flu ” ) vaccination

. Petition at 1

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

On November 22, 2021

, a ruling on entitlement was issued , finding P etitioner
entitled to compensation for SI RVA . On January 11, 2022

, R espondent filed a p roffer on

a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 72,500.00
( representing pain and suffering )

. Proffer at 1

- 2

. In the Proffer, R espondent represented

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the D ecision will be available to anyone with access to the

internet. 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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 that P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find

that P etitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump sum payment of $ 72,500.00 ( representing pain and suffering) in the form of a check
payable to P etitioner

. This amount represents compensation for all damages that w ould

be available under Section 15 (a)

.

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

decision. 3

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran
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

THOMAS BIERBAUM

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent. )

)

)

)

)

)

)

)

)

)

)

) No. 20

- 888 V
Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On July 22, 2020, Thomas Bierbaum (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

- 34

(“Vaccine Act” or “Act”) , alleging that he suffered a S houlder I njury R elated to Vaccine

Administration (“SIRVA”)

, as defined in the Vaccine Injury Table, following administration of

an influenza (“flu”) va ccine he received on October 11, 2018

.

On November 19 , 2021 , the Secretary of Health and Human Services (“respondent”) filed

a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of

the Act for a SIRVA Table injury . ECF No. 24

. On November 22 , 2021 , the Chief Special

Master issue d a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 25

.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $72 ,5 00.00 in pain and suffering

.

See 42 U.S.C. § 300 aa

- 15(a)(4).2

This amou nt represent all elements of compensation to which petitioner is entitled under

42 U.S.C. § 300aa

- 15(a)

. Petitioner agrees.

II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respondent recommends that the compensation provided to petitioner should be made through a

lump sum payment as described below and requests that the Chief Special Ma ster’s decision and

the Court’s judgment award the following 1 : a lump sum payment of $ 72 ,500.00

, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum p a yable to petitioner, Thomas Bierbaum : $ 72 ,500.00

Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN
Deputy Director

Torts Branch, Civil Division

LA RA A. ENGLUND

Assistant Director

Torts Branch, Civil Division

1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court

for appropriate relief. In particular, respondent would oppose any award for future lost earnings

and future pain and suffering.3 s/ Wei Kit (Ricky) Tai

WEI KIT (RICKY) TAI
Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Ben Franklin Station

Washington, D.C. 20044

- 0146

Direct dial: (202) 598

- 7705
Wei.Tai@usdoj.gov

D ated: January 11, 2022