# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 17 - 1572 V Filed: June 19, 2019 UNPUBLISHED
DEANNE A. GRAF ,

Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)
Peter M. Young, Habush, Habush & Rottier, S.C. , Wausau, WI , for petitioner. Traci R. Patton , U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION 1 

### Dorsey , Chief Special Master: On October 20, 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 Injuries Related to Vaccine Administration (“SIRVA”), including, tendinitis, tendinosis, frozen shoulder, and adhesive capsulitis of the left shoulder, and irritation of the left radial nerve, ” resulting from the influenza vaccination she received on October 27, 20 14 . Petition at 1 ; Stipulation , filed June 17, 2019 , at ¶ 5
. Petitioner further alleges she has experienced residual effects of this injury for more than six months . Petit ion at 13 ; Stipulation at ¶ 5
. “ Respondent denies that petitioner sustained a Table SIRVA, and denies that she suffered any other injury or condition that was caused by or significantly aggravated by the flu vaccination. ” Stipulation at ¶ 6.

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 informati on, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this u npublished decision contains a reasoned explanation for the action in this case, undersigned is 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)

. 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 subpara graph of 42 U.S.C. § 300aa (2012 ).2



### Nevertheless, o n June 17, 2019 , the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the term s stated in the attached Stipulation , the undersigned award s the following compensation: A lump sum of $ 85,000.00 in the form of a check payable to petitioner

. Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld be available under § 15 (a). Id

. The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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

DEANNE A. GRAF, ) ) ) ) ) Petitioner, V. No. 17-1572V SECRETARY OF HEALTH AND HUMAN ) SERVICES,

### ~ Chief Special Master Dorsey ECF

Re sponde nt. )



# ______________ ) STIPULATION The parties hereby stipulate to the following matters : 1. Deanne A. Graf, petitioner, filed a petition for vaccine compensation under the Nat ional Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I0 et seq . (the "Vaccine Program "). The petition seeks compensation for injuries allegedly related to Ms. Graf s receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. § 100 .3(a). 2. Petitioner received her flu immunization on October 27, 2014. 3. The vaccine was administered within the United States. 4. Pt:titioner alleges that sh e s ustained "Shoulder Injuries Related to Vaccination Administration (' SrR VA'), including tendinitis , tendinosis, frozen shoulder, and adhesive capsulitis of th e left shoulder, and irritation of the left radial nerve" within the time period set forth on the Table. Petitioner also alleges that the flu vaccine "caused in fact" peti t ioner 's SIRVA. She further alleges that she has experienced residual effects of this injury for more than six months.5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner sustained a Table SIRVA, and denies that she suffered any other injury or condition that was caused by or significantly aggravated by the flu vaccination. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the iss ues between them shall be settled and that a decision should be entered awarding the compensation described 

### in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: a lump sum of $85,000.00 in the form of a check payable to petitioner
. This amount represents compensation for all damages that would be available under 42 U.S.C. 

### § 300aa-l 5(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. 

### § 300aa-2 l (a)( I), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition
. 10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C
. § 300aa-15(g), to the extent that payment has been made or can reasonably be



### 2expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. 

### § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(i), subject to the availability of sufficient statutory funds. 12
. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C
. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of , or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on October 27, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or about October 20, 2017, in the United States Court of Federal Claims as petition No. 17-1572V.

314. 

### If petitioner shou ld die prior to entry of judgment, thi s agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 1 5. 

### If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a decision that i s in comp let e confonnity with the terms of this Stipu lati on, then the parties ' sett lement and this S tipulation sha ll be voidable at the so le discretion of either party. 16. This Stipulation expresses a full and comp lete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation ma y reflect a compromise of the parties' respecti ve positions as to liability and/or amount of damages, and further, th at a change in the nature of the injury or cond ition or in the items of compensation sought, is not grounds to modify or revi se this agreement. 17. This Stipulation shall not be construed as an admission by the United S tate s or the Secretary of Heal th and Human Services that petitioner sustained a Table SIRVA, or that she suffered any other injury or condition that was caused by or significantly aggravated by the flu vaccination. 18. All right s and obligations of petitioner hereunder sha ll apply equally to petitioner's heirs, executors, admini strators, successors, and/or assigns. END OF STIPULATION

4Respectfully 

### submitted, 

### PETITIONER:

DEANNE A. GRAF



### ATTORNEY OF RECORD FOR PETITIONER:

P ~TER M. YOUNG H:hHabush & Rottier® 3100 

### Eagle A venue Wausau, WI 

### 54402 Tel: (715) 842-4444



### AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:

NARAYAN NAIR, M.D. Director, Division oflnjury Compensa t ion 

### Programs (DICP) Healthcare Systems Bureau Health Resources and Services Administration U.S
. Department of Health and Human Services 5600 Fishers 

### Lane Parklawn 

### Building, Mail Stop 08N 146B Rockville, MD 20857
Dated: 

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### AUTHORIZED REPRSENTATIVE OF THE A 'ITORNEY GENERAL: {_

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# 'd-Pe~ CATHARINE E. REEVES 

### Deputy Director Torts Branch Civil 

### Division U.S. Department of 

### Justice P.O. 

### Box 146 Benjamin Franklin Station 

### Washington, DC 20044-0146



### ATTORNEY OF RECORD FOR RESPONDENT:



# ~ ' {<1°~ TRACI R. PATTON Senior Trial Attorney Torts 

### Branch Civil Division 

### U.S. Department of Justice P.O. 

### Box 146 

### Benjamin Franklin 

### Station Washington, DC 20044-0146 Tel: (202) 353-1589