# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: April 5, 2022

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

CHRISTINE MCGEE

, * No. 1 8

- 1778 V

* Petitioner, * Special Master Sanders

*

v. *

*

SECRETARY OF HEALTH * Ruling on Entitlement; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Shoulder Injury

* Related to Vaccine Administration Respondent. * (“SIRVA”)

* * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoeni x, AZ, for Petitioner. Jennifer L. Reynaud, United States Department of Justice, Washington, DC , for Respondent.

RULING ON ENTITLEMENT 1

On November 16, 2018

, Christine McGee (“Petitioner”) filed a peti tion for compensation under the National Vaccine Injury Compensation Program (“the Program”)

. Pet. at 1, ECF No. 1; 42 U.S.C. § 300aa

- 10 to

- 34 (2012). Petitioner alleges that s he sustained a left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination s he

received on October 24 , 201 7

. Id. at 1.

On January 17, 2020 , Respondent file d a report pursuant to Vaccine Rule 4(c)

, recommending compensation be denied

. Resp’t’s Report at 5

– 6 , ECF No. 25

. The parties then filed briefs regarding the onset of Petitioner ’ s shoulder pain. ECF Nos. 34, 37

– 38

. On Nov ember

30 , 2021, I issued a fact ruling finding Petitioner established by preponderant evidence that s he experienced the onset of h er left shoulder pain within 48 hours of her flu vaccination . Fact Ruling

at 1 1 , ECF No. 39

.

Respondent filed an amended Rul e 4(c) report on April 1, 2022 , advising that Respondent “will not defend the case on other grounds” and noting that “[P]etitioner has otherwise satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretat ion

1 This Ruling shall be posted 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 Ruling will be availa ble to anyone with access to the

Internet . In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the rule requirem ent, a motion for redaction must include a proposed redacted Ruling . If, upon review, I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access.2 (“QAI”) for SIRVA.” Am. Resp’t’s Report at 2 , ECF No. 4 3 (citing 42 C.F.R. §§ 100.3(a) (XIV)

, ( c)(1 0 ) )

. Specifically, Respondent noted that Petitioner had no recent history of pain, inflammation, or dysfunction of h er left shoulder; the onset of h er pai n occurred within 48 hours after receipt of an intramuscular vaccine; h er pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality, such as brachial neuritis, has been identified to explain her left shoulder pain. Am. Resp’t’s Report at 5

– 6 (citing §§ 100.3(a)

, ( c)(10) ). Respondent further noted Petitioner suffered the residual effects of h er condition for more than six months. Am. Resp’t’s Report at 6 (citing 42 U.S.C. § 300aa

- 11(c)(1)(D)(i)). T herefore, Respondent “ d oes not dispute that [ P ] etitioner has satisfied all legal prerequisites for compensation under the [Vaccine] Act.” Am. Resp’t’s Report at 6

.

A special master may determine whether a petitioner is entitled to compensation based upon the record. A hearing is not required. § 300aa

- 13; Vaccine Rule 8(d). In light of R espondent's

concession and my review of the record , I find that Petitioner is enti tled to compensation. This matter shall now proceed to the damages phase.

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders Special Master