# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 645 V

Filed: March 1, 2019

UNPUBLISHED

E MILY MCINTOSH

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder

Injury Related to Vaccine

Administration (SIRVA)

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.

.

DECISION AWARDING DAMAGES 1

Dorsey

, Chief Special Master:

On May 16, 2017

, p etitioner 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 Shoulder Injury Related to Vaccine

Administration ( “ SIRVA ” ) as a result of her October 20, 2015 influenza ( “flu ”)

vaccination

. Petition at 1 . The case was assigned to the Special Processing Unit of the

Office of Special Masters.

On February 7, 2018

, a ruling on entitlement was issued , finding petitioner

entitled to compensation for SIRVA . On February 26, 2019 , respondent filed a p roffer

on a ward of compensation (“Proffer”) indicating petitioner should be awarded

1 The un dersigned intends to post this decision on the United States Court of Federal Claims' website.

This means the decision 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, the

undersigned agrees that the iden tified material fits within this definition, the undersigned will redact such

material from public access. Because this unpublished decision contains a reasoned explanation for the

action in this case, undersigned is required to post it on the United State s 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)

.

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

- 660, 10 0 Stat. 3755. Hereinafter, for

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

300aa (2012).2 $120,593.99 ( representing $117,500.00 for pain and suffering and $3,093.99 for

unreimbursed expenses and lost wages)

. Proffer at 1

. In the Proffer, respondent

represented that petitioner agrees with the proffered award. Based on the record as a

whole, the undersigned finds that petitioner is entitled to an award as stated in the

Proffer. Id.

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

petitioner a lump sum payment of $120,593.99 ( representing $117,500.00 for pain

and suffering and $3,093.99 for unreimbursed exp enses and lost wages) in the

form of a check payable to petitioner, Emily McIntosh

. This amount represents

compensation for all damages that w ould be available under § 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

____________________________________ )

EMILY MCINTOSH, )

)

Petitioner, )

) No. 17

- 645V

v. ) Chief Special Master Dorsey

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On February 5 , 2018 , respondent filed a Vaccine Rule 4(c) report concluding that

petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury

Act of 1986, as amended, 42 U.S.C. §§300aa

- 10 to

- 34. Accordingly, on February 7 , 2018 , the

Chief Special Master issued a Ruling on Entitlement.

I. Items of Compensation

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

$120,593.99 ( $117,500 .00 for pain and suffering and $3,093.99 fo r unreimbursed expenses and

lost wages ) which repr esents 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, the parties reserve the right to move the Court

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

e xpenses , future lost earnings, and future pain and suffering

.2 II. Form of the Award

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

throug h a lump sum payment of $ 1 20,593.99 in the form of a c heck payable to petitioner.

Petitioner agrees.

Respectfully submitted,

JOSEPH H. HUNT

Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

A LEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

s/Christine Mary Becer

CHRISTINE MARY BECER

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

- 3665

Date: February 26 , 2019