         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1629V
                                   Filed: November 26, 2018
                                        UNPUBLISHED


    KENNETH NIEMCZYK,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU);
                                                             Damages Decision Based on Proffer;
    SECRETARY OF HEALTH AND                                  Influenza (Flu) Vaccine; Shoulder
    HUMAN SERVICES,                                          Injury Related to Vaccine
                                                             Administration (SIRVA)
                       Respondent.


David Michael Crocco, Jr. Sabbeth Law, Woodstock, VT, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

       On October 30, 2017, 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) following receipt of his October 16, 2015 influenza (“flu)
vaccination. Petition at 1, 3. The case was assigned to the Special Processing Unit of
the Office of Special Masters.

        On September 24, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On November 26, 2018, respondent filed a proffer
on award of compensation (“Proffer”) indicating petitioner should be awarded

1 The undersigned 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 invasion 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 Because this unpublished decision contains a reasoned explanation for the
action 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).

2National 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).
$132,204.82, representing $130,000.00 in compensation for pain and suffering and
$2,204.82 in compensation for past out-of-pocket medical expenses. Proffer at 1. In
the Proffer, respondent represented that petitioner agrees with the proffered award.
Based on the record as a whole, the undersigned finds that petitioner is entitled to an
award as stated in the Proffer. Id.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $132, 204.82, representing $130,000.00 in
compensation for pain and suffering and $2,204.82 in compensation for past out-
of-pocket medical expenses, in the form of a check payable to petitioner, Kenneth
Niemczyk. This amount represents 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

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.


                                                      2
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS

_________________________________________
                                          )
KENNETH NIEMCZYK,                         )
                                          )
                  Petitioner,             )
                                          )                 No. 17-1629V
v.                                        )                 Chief Special Master Dorsey
                                          )                 ECF
SECRETARY OF HEALTH AND                   )
HUMAN SERVICES,                           )
                                          )
                  Respondent.             )
__________________________________________)


            RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation
       On September 14, 2018, respondent conceded that entitlement to compensation was

appropriate under the terms of the Vaccine Act. On September 24, 2018, Chief Special Master

Dorsey issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine

compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”). Based

upon the evidence of record, respondent proffers that petitioner should be awarded $132,204.82.

The award is comprised of the following: $130,000.00 for pain and suffering, and $2,204.82 for

past out-of-pocket medical expenses. This amount represents all elements of compensation to

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

 II.   Form of the Award

       The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $132,204.82, 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,

                                                       JOSEPH H. HUNT
                                                       Assistant Attorney General

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

                                                       CATHARINE E. REEVES
                                                       Deputy Director
                                                       Torts Branch, Civil Division

                                                       HEATHER L. PEARLMAN
                                                       Assistant Director
                                                       Torts Branch, Civil Division

                                                       /s/Claudia B. Gangi
                                                       CLAUDIA B. GANGI
                                                       Senior Trial Attorney
                                                       Torts Branch, Civil Division
                                                       U. S. Department of Justice
                                                       P.O. Box l46, Benjamin Franklin Station
                                                       Washington, D.C. 20044-0146
                                                       Direct dial: (202) 616-4138
                                                       Email: claudia.gangi@usdoj.gov


Dated: November 26, 2018




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 pain and
suffering.


                                                   2
