# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 0 393 V

Filed: June 22, 2015

Unpublished

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

DANIELLE SUTLEY, *

*

Petitioner, * Ruling on Entitlement; Concession ;

* Influenza (“flu”) vaccine; Shoulder Injury

v. * Related to Vaccine Administration

* (“SIRVA”) ; Damages Decision Based

* on Proffer; Special Processing Unit

SECRETARY OF HEALTH * (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

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

David J. Schexnaydre, Schexnaydre Law Firm

, Mandeville, LA

, for petitioner.

Jennifer L. Reynaud , U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

Vowell

, Chief Special Master:

On April 20 , 2015

, Danielle Sutley 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”]. The petition alleges that as a result of a n Influenza (“ flu ”)

vaccination on October 11 , 2013

, petitioner suffered a shoulder injury rel ated to vaccine

administration (“SIRVA”). The case was assigned to the Special Processing Unit

(“SPU”) of the Office of Special Masters.

On June 22 , 2015 , respondent filed her Rule 4(c) Report [“Respondent’s

Report”], in which she concedes that petitioner is entitled to compensation in this case.

Respondent’s Report at 3 . Specifically, respondent “ believes that petitioner’s alleged

1 Because this unpublished decision contains a reasoned explanation for the action in this case, it will be

posted 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 amended 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 o f 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. 9 9

- 660, 100 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 (2006).injury is consistent with a [SIRVA] ” that “was caused

- in

- fact by a vaccination.” Id

. Respondent stated that “based on the record as it now stands, petitioner has satisfied

all legal prerequisites for compensation under the [Vaccine] Act.” Id

.

In view of respondent’s concession and the evidence before me, I find that

petitioner is entitle d to compensation

.

Additionally, respondent i ncorporated a proffer on award of compensation

(“Proffer”) into her Rule 4 (c) Report detailing compensation for all elements of

compensation to which petitioner would be entitled under §15(a). According to

respondent’s Proffer, petitioner agrees to the proposed award of compensation.

Pursuant to the terms stated in the attached Proffer, I award petitioner a lump

sum payment of $100,000.00 in the form of a check payable to petitioner.

This amount represent s compensation for all damages that would be available

under §15(a).

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

decision. 3

s/Denise K. Vowe ll

Denise K. Vowell

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice

renouncing the right to seek review.

21 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

DANIELLE SUTLEY

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. No. 1 5

- 393 V

Chief Special Master Vowell

ECF

RESPONDENT’S RULE 4(c) REPORT AND PROFFER ON DAMAGES

On April 20, 2015

, Danielle Sutley (“petitioner”) filed a petition for compensation

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

-

34 (“Vaccine Act” or “Act”), as amended. The Petition all e ges that petitioner received an

i nfluenza (“ flu ”) vaccine in her left shoulder on October 11 , 2013 , and subsequently suffered a

shoulder injury related to vaccine administration (SIRVA) as a result of the flu vaccination.

Petition at Preamble

.

Medical personnel at the Division of Injury Compensation Programs (“ DICP ” ) at the

Department of Health and Human Services have reviewed the Petition and medical records filed

in the case, to determine whether petitione r qualifies for compensation under the Vaccine Act.

D ICP has concluded that compensation is appropriate in this case. In accordance with Vaccine

Rule 4(c), the Secretary of Health and Human Services (“respondent”) submits the following as

her responsive report.

FACTUAL SUMMARY

P etitioner was a 39 year

- old registered nurse and clinical specialist in the medical device

i ndustry when she receiv ed a flu vaccine on October 11 , 2013

, at Walgreens

. Petitioner’s2 Exhibit (“Pet. Ex.” ) 2 at 1; Pet. Ex. 3

- 4 at 7

. Approximately three weeks later, on October 31,

2013, petitioner presented to orthopedist Barton L. Wax, M.D., with complaints of dull, aching

left shoulder pain since her flu vaccination. Pet. Ex. 4 at 47. Dr. Wax noted of petitioner had

pain with active internal rotation of her shoulder and passive external rotation. Id . at 48. She

also had tenderness to palpation over her deltoid. Id. He prescribed Mobic (a nonsteroidal anti

inflammatory) and home exercises

. Id . at 49. When her symptoms did not improve, petitioner

started physical therapy on November 27, 2013. Pet. Ex. 5

- 1 at 8

- 9. A January 7, 2014 MRI of

petitioner’s left shoulder revealed tendi nopathy of the infraspinatus tendon and labral tears. Pet.

Ex. 6 at 3.

On January 9, 2014, petitioner discussed the MRI results with Dr. Wax. Pet. Ex. 4 at 31

-

33. Petitioner reported intermittent dull, aching mild

- to

- moderate left shoulder pain that was

aggravated by reaching, laying on her side, and weather changes. Id . at 31. She had full range of

motion in her shoulder, but some diffuse tenderness to palpitation was still present. Id . at 32. A

second cortisone injection and additional physical therapy were ordered , but neither provided

significant relief . Ex. 4 at 3 3, 19

.

In May 2014, petitioner moved from Louisiana to Colorado. Pet. Ex. 1. On M ay 30,

2014, petitioner s ought treatment from ortho pedic surgeon James Johnson, M.D. Pet. Ex 7 at 18.

She recounted to Dr. Johnson gradually worsening left shoulder pain since her October 2013 flu

vaccination. Id . She believed the vaccination had been administered “in an incorrect spot.” Id.

Dr. Johnson diagnosed petitioner with shoulder bursitis, chro nic partial thickness tear of the

rotator cuff, and shoulder impingement syndrome. Id . at 22. Since prior conservative treatment

had failed, Dr. Johnson recommended surg ical repair

. Id . at 18, 22.

On June 17, 2014, Dr. Johnson performed an arthroscopic subacromial decompression

and arthroscopic debridement of the labrum of petitioner’s left shoulder. Pet. Ex. 7 at 22

- 23.3 Petitioner attended twelve physical therapy sessions during the next three mo nths. See generally

Pet. Ex. 9. During the first few weeks after surgery, petitioner described constant pain that 6/10

in severity that worsened with movement. Id . at 28

- 34. She found it difficult to pick

- up and play

with her two young children. Id

. By her July 14, 2014 physical therapy visit, petitioner’s pain

had improved in that it was now only occasionally at night

. Id . at 26. However, her shoulder felt

weak and fatigued by the end of the day. Id

. At petitioner’s most recent visit to physical therapy

on September 11, 2014, her primary complain t was “occasional pain in left shoulder at night.”

Id . at 15. While overall petitioner’s shoulder strength had improved since surgery, some

lingering weakness was noted, particularly with flexion and ext ernal rotation. Id

.

ANALYSIS

D ICP believes that petitioner’s a lleged injury is consistent with a shoulder injury related

to vaccine administration (“SIRVA”). As such, DICP agrees that petitioner’s claim satisfies the

Althen requirements and that her alleged injury was caused

- in

- fact by a vaccination. See Althen

v. HHS , 418 F.3d 1274, 1278 (Fed. Cir. 2005). No other cause for petitioner’s condition has

been identified. See 42 U.S.C. § 300aa

- 13(a)(1)(B). Based on the medica l records outlined

above, petitioner has met the statutor y requirements by suffering t he residual effects of her

c ondition for more than six months

. See id. at § 300aa

- 11(c)(1)(D)(i). Therefore, based on the

record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the

Act.

PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

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

$ 100 ,000.00, which represents all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa

- 15(a). Petitioner agrees.4 II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

t hro ugh a lump sum payment of $10 0,000.00 in the form of a check payable to petitioner. 1

Petitioner agrees.

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

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 Divisio n

LYNN E. RICCIARDELLA

Senior Trial Attorney

Torts Branch, Civil Division

s/ Jennifer L. Reynaud

JENNIFER L. REYNAUD

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

- 1586

Date: June 22

, 2015

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

expenses, future pain and suffering, and future lost wages.