# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20

- 1057 V UNPUBLISHED

TRACY DAWN MCKAY

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: May 10, 2022

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

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC , for
Petitioner.

Emilie Williams , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On August 21, 2020

, Tracy Dawn McKay 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 from left shoulder injuries related to vaccine administration (“SIRVA”) as a result of an influenza vaccine received on October 12, 2018 . Petition at 1

. Petitioner further alleges that the vaccine was administered in the United States, she suffered residual symptoms in excess of six months, and she has not received compensation in the form of an award or settlement or filed a civil action for her
vaccine

- related injuries . Petition at ¶¶ 3 , 14, 16

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

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 f its 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 subpara graph of 42 U.S.C. § 300aa (2012 ).2

On January 10, 2022

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for SIRVA . On May 10, 2022

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 70,711.54

. Proffer at
2

. In the Proffer, R espondent represented 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 $ 7 0,711.54 ( compri sed of $7 0,000.00 in pain and suffering and $711.54 in past unreimbursable expenses) 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 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 CO URT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

TRACY DAWN MCKAY,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 20-1057V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On August 21, 2020, Tracy Dawn McKay (“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 she suffered a Shoulder Injury Related to Vaccine

Administration (“SIRVA”), as defined in the Va ccine Injury Table, fo llowing administration of

an influenza vaccine she received on October 12, 2018. Petition at 1. On January 7, 2022, the

Secretary of Health and Human Services (“respo ndent”) 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,

and on January 10, 2022, the Chief Special Mast er issued a Ruling on Entitlement finding

petitioner entitled to compensa tion. ECF No. 31; ECF No. 33.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $70,000.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4 ). Petitioner agrees.2 B. Past Unreimbursable Expenses

Evidence supplied by petitione r documents that she incu rred past unreimbursable

expenses related to her vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable e xpenses in the amount of $711.54. See 42 U.S.C. § 300aa15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of co mpensation 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 requ ired in this case.

Respondent recommends that the compensation pr ovided to petitioner sh ould be made through a

lump sum payment as described below and request s that the Chief Special Master’s decision and

the Court’s judgment award the following 1 : a lump sum payment of $70,711.54, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Tracy Dawn McKay: $70,711.54

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

1 Should petitioner die prior to entry of judgment, the parties rese rve 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 TRACI R. PATTON
Assistant Director Torts Branch, Civil Division

/s/ Emilie F. Williams

EMILIE F. WILLIAMS 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) 305-0124 Emilie.williams@usdoj.gov

DATED: May 10, 2022