# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20

- 0 2 77 V UNPUBLISHED

RENEE LACOURSE

- BURMEISTER

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 18, 2022

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

Leigh Finfer, Muller Brazil, LLP, Dresher, PA , for P etitioner.

Debra A. Filteau Begley , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES 1

On March 12, 2020, Renee LaCourse

- Burmeister 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 as a result of an influenza (“flu”) vaccine received on September 25, 2018, she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petit ion

1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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) (Fed eral Management and Promotion of Electronic Government Services). This means the opinion 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 fits 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 subparagraph of 42 U.S.C. § 300aa (2012).2

(ECF No. 1) at Preamble. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On February 16, 2022

, a ruling on entitlement was issued, finding P etitioner entitled to compensation for SIRVA . On August 18, 2022

, R espondent filed a proffer on award of compensation

. In the Proffer, R espondent represented that P etitioner agrees with the proffered award. Id. Based on the record as a wh ole, I find that P etitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms s tated in the attached Proffer, I award P etitioner a lump sum payment of $ 45,824.68 (representing $ 45 ,000 .00 for pain and suffering , and $ 824 .68 for 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 en ter 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 e xpedited 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

__________________________________________ )
RENEE LACOURSE-BURMEISTER , ) ) Petitioner, ) ) No. 20-277V (ECF) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH AND )
HUMAN SERVICES , ) ) Respondent. ) __________________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On March 12, 2020, petitioner filed a Petit ion for Compensation alleging that she

suffered a shoulder injury relate d to vaccine administration (“SI RVA”), following the receipt of

a flu vaccine administe red on September 25, 2018. On June 28, 2021, respondent filed a Rule

4(c) Report stating that the me dical records in this case do no t establish that petitioner’s

condition began within 48 hours of vaccination, which is a Vaccine Table requirement for

SIRVA. ECF No. 30 at 5-7, 42 C.F.R. § 100.3 (c)(3 )(10)(ii). Respondent fu rther explained that

the record did not establish that petitioner’s symp toms persisted for at least six months. ECF No.

30 at 5-7; 42 U.S.C. § 300aa-11 (c)(1)(D)(1). On October 12, 2021, petitioner moved for a

Ruling on the Record arguing that her symptoms of SIRVA began within forty-eight hours of

vaccination, and that she suffered the residual effects or complicat ions of her injury for more

than six months. ECF No. 33 at 1. On October 19, 2021, respondent filed a response to

petitioner’s motion arguing that the medical record evidence did not support either of petitioner’s

proposed findings. ECF No. 35.

On February 12, 2022, the Chief Special Ma ster issued a Ruling on Entitlement2 concluding “that [p]etitioner suffer ed the residual effects of her alleged SIRVA for more than six

months, [and] that she suffered the onset of sy mptoms within 48 hours.” ECF no. 36 at 2. He

explained that the parties only presented a dispute on those two elements of petitioner’s claim,

and that the record otherwise satisfies the remaining Table SI RVA and statutory criteria. See

ECF No. 36 at 12-13 citing 42 C.F.R. § 100.3 (c)(3)(10)(i-iv). Thus, he concluded that petitioner

was entitled to compensa tion under the Vaccine Act. 1

I. Items of Compensation

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

the following, and requests that the Chief Special Master’s d ecision and the Court’s judgment

award:

a. a lump sum payment of $45,000.00 , which represents compensation for pain and suffering, see 42 U.S.C. § 300aa-15(a)(4), and

b. a lump sum payment of $824.68 , which represents compensation for past unreimbursed medical expenses, see 42 U.S.C. § 300aa-15(a)(1).

These amounts represent all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa-15(a). 2 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 petitioner be awarded a lump sum payment of $45,824.68 , in the

form of a check payable to pe titioner. Petitioner agrees.

1 Nothing stated in this fili ng should be construed as a conc ession on any issues previously raised by respondent, or as a waiver of respondent’s right to seek review of the Court’s February 16, 2022, Ruling on Entitlement.

2 Should petitioner die prior to the entry of judgment, the partie s reserve the righ t to move the Court for appropriate relief. In particular, responde nt would oppose any awar d for future pain and suffering.3 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

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ DEBRA A. FILTEAU BEGLEY
DEBRA A. FILTEAU BEGLEY Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice
P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181 Dated: August 18, 2022