# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 0350 V Filed: May 21, 2019 UNPUBLISHED

KATH LEEN GULLO

,

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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA , for petitioner. Jeffrey T. Sprague , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey

, Chief Special Master:

On March 7, 2018 , petitioner 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 a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccination received on October 13, 2 016 . Petition at 1 . The case was assigned to the Special Processing Unit of the Office of Special Masters.

On March 4, 2019

, a ruling on entitlement was issued , finding petitioner entitled to compensation for her SIRVA . On May 21, 2019 , respondent filed a p roffer on a ward of compensation (“Proffer”) indicating petitioner should be awarded $ 130,000.00 in the form of a check payable to petitioner and $1,960.96, representing compensation for

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 invas ion 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 Because this unpublished decision contains a reasoned explanation for the actio n in this case, undersigned is required to post it on the United States Court of Federal Claims' website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 subparagraph of 42 U.S.C. § 300aa (2012).2

sa tisfaction of the State of California Medicaid lien , in the form set forth below. Proffer at 1

- 2

. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned award s petitioner a lump sum payment of $ 1 30,000.00 in the form of a check payable to petitioner, Kath leen Gullo , and a lump sum payment of $1,960.96, representing compensation for satisfaction of th e State of C aliforn ia Medicaid lien, in the form of a check payable jointly to petitioner and:

Department of Health Care Servic es Recovery Bra nch

– MS 4720 P.O. Box 997421 Sac ramento , CA 95899

- 7421 ( Ref # C96013915D

- VAC03)

Petition er agrees to endor se a check to the State of California for sati sfaction of the Medicaid lien.

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

___________________________________ ) KATHLEEN GULLO

, ) ) Petitioner, ) No. 18-350 V ECF ) v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ )

PROFFER ON AWARD OF COMPENSATION 1

I. Procedural History

On March 7, 2018, Kathleen Gullo (“petitioner”) filed a petition for compensation

(“p etition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34, as amended . She alleges that, as a result of receiving the influenza vaccine on October 13,

2016 , she suffered from a left shoulder injury related to vaccine administration (“ SIRVA”).

Petition . On March 4, 2019, respondent filed his Vaccine Rule 4(c) report, conceding SIRVA a s

a Table injury. On March 4, 2019, the Chief Special Master issued a ruling on entitlement,

finding that petitioner was entitled to compensation for SIRVA.

I I. Items of Compensation

A. Pain and Suffering

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

a lum p sum of $130,000.00 for pain and suffering, paid in th e form of a check to petitioner.

1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued.2 B. Medicaid Lien

Respondent proffers that petitioner should be awarded funds to satisfy the

State of California Medicaid lien in the amount of $1,960.96 , which represents

full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the

State of California may have against any individual as a result of any Medicaid

payments the State of California has made to or on behalf of petitioner from the

date of her eligibility for benefits through the date of judgment in this case as a result of her

vaccine -related injury suffered on or about October 13, 2016 under Title XIX of the Social

Security Act.

Th ese amounts represent all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

I II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

through a combination of lump sum payment s as described below, and requests that the special

master’s decision and the Court’s judgment award the following:

A. A lump sum payment of $130

, 000.00 in the form of a check payable to petitioner ;

and

B. A lump sum payment of $1,960.96 , representing compensation for satisfact ion of the

State of California Medicaid lien, in the form of a check payable jointly to petitioner

and :3 Department of Health Care Services Recovery Branch - MS 4720 P.O. Box 997421 Sacramento, CA 95899-7421 (Ref# C96013915D- VAC03)

Petitioner agrees to endorse a check to the State of California for satisfaction of the

Medicaid lien. 2

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

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division

/s/Jeffrey T. Sprague JEFFREY T. SPRAGUE Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Dir ect di al: (202) 616-4179 Dated: May 2 1, 2019 Fax: (202) 616-4310

2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief.