# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20

- 0340 V

UNPUBLISHED

RACHEL RUTKOWSKI

,

Petitioner,

v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 7, 2021

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

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA , for Petitioner.

Steven Santayana , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On March 25, 2020

, Rachel Rutkowski 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 “ l eft shoulder injury resulting from

the adverse effects of an influenza vaccination ” she received on Octo ber 1, 2018

. Petition

at ¶ 1

. The case was assigned to the Special Processing Unit of the Office of Special

Masters.

On August 31, 2021

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for a left SIRVA . On December 7, 2021

, R espondent filed a p roffer on

a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 53,564.01

. Proffer at 2

. In the Proffer, R espondent represented that P etitioner agrees with the

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 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 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 $ 53,564.01 in the form of a check payable to P etitioner

. The award is comprised of the following: (1) $5 3,000.00 in pain a nd suffering and (2) $564.01 in past

unreimb ursable expenses. Id . at 1

- 2.

Th ese amount s represent compensation for all damages that w ould be available

under Section 15 (a)

.

The clerk of the 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 COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

RACHEL RUTKOWSKI

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN
SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 20

- 340 V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On March 25, 2020

, Rachel Rutkowski (“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 S houlder I njury R elated to Vaccine

Administration (“SIRVA”)

, as defined in the Vaccine Injury Table, following administration of

an influenza va ccine she received on October 1 , 201 8

. Petition at 1. On August 31 , 202 1

, the

Secretary of Health and Human Services (“respondent”) 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 August 31 , 202 1

, the Chief Special Master issued a Ruli ng on Entitlement finding

petitioner entit led to compensation. ECF No. 2 1 ; ECF No. 2 2

.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 53 ,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 petitioner documents that she incurred past unreimbursable

expenses related to her vaccine

- related injury. Respondent proffers that petitioner should be

awa rded past unreimbur sable expenses in the amount of $ 564.01

. See 42 U.S.C. § 300aa

15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is entitled

under 42 U.S.C. § 300aa

- 15(a). Petitioner agrees.

II. Fo rm of the Award

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

Respondent recommends that the compensation provided to petitioner should be made through a

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

the Court’s judgment award the following 1 : a lump sum payment of $53,564.01

, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Rachel Rutkowski : $53,564.01

Respectfully submitted,

BRIAN M. BOYNTON Acting Assistant Attorney General

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

HEATH ER L. PEARLMAN Deputy Director Torts Branch, Civil Division

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 lost earnings and future pain and suffering.3 DARRYL R. WISHARD

Assistant Director Torts Branch, Civil Division

s/ STEVEN C. SANTAYANA

STEVEN C. SANTAYANA 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) 451

- 7675 steven.c.santayana@usdoj.gov

Dated: December 7

, 2021