     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1530V
                                         UNPUBLISHED


    JANICE Y. ATENCIO,                                        Chief Special Master Corcoran

                         Petitioner,                          Filed: March 10, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Influenza
                                                              (Flu) Vaccine; Shoulder Injury
                        Respondent.                           Related to Vaccine Administration
                                                              (SIRVA)


Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

       On October 3, 2018, Janice Atencio 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 left Shoulder Injury Related to
Vaccine Administration (SIRVA) after receiving an influenza (“flu”) vaccination on
November 10, 2015. Petition at 1; Stipulation, filed February 25, 2020, at ¶¶ 4.
Petitioner further alleges that she suffered left shoulder rotator cuff tear, rotator cuff
tendinitis, and impingement syndrome, along with other sequelae, and further alleges
that she experienced the residual effects of her injury for more than six months. She
also alleges that she had no history of left shoulder injury or pain prior to vaccination
and that her symptoms began immediately after receiving the flu shot. In the
alternative, Petitioner alleges that her shoulder injury was caused-in-fact by the flu
vaccine she received. Petition at 1-2; Stipulation at ¶¶ 4. Respondent denies that

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 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, I agree that the identified material fits within this definition, I will redact such
material from public access.
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).
Petitioner sustained a SIRVA Table injury and denies that Petitioner’s alleged left
shoulder injuries and their residual effects were caused-in-fact by her flu vaccine.
Respondent further denies that the flu vaccine caused Petitioner any other injury or her
current condition. Stipulation at ¶ 6.

        Nevertheless, on February 25, 2020, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.

     Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:

        A lump sum of $30,000.00 for pain and suffering in the form of a check
        payable to Petitioner; and

        A lump sum of $735.50, which amount represents reimbursement of a
        Medicaid lien, in the form of a check payable jointly to Petitioner and

                                  HMS New Mexico Casualty Recovery
                                        Case File No. 111730
                                          P.O. Box 165596
                                          Irving, TX 75016

        Stipulation at ¶ 8. This amount represents compensation for all items of
        damages that would be available under § 15(a). Id.

       I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, 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.

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

                                                     )
 JANICE Y. ATENCIO,                                  )
                                                     )
                 Petitioner,                         )
                                                     )    No. 18-1530V
 V.                                                  )    Chief Special Master Corcoran
                                                     )    ECf
 SECRETARY OF HEALTH AND HUMAN                       )
 SERVICES,                                           )
                                                     )

                    _________
                Respondent.                          )
                                                     )

                                           STIPULATION

        The parties hereby stipulate to the following matters:

         1. Janice Y. Atencio, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of an influenza (~'flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § I00.3(a).

        2. Petitioner received the flu immunization on November 10, 2015.

        3. The vaccination was administered within the United States.

        4. Petitioner alleges that she suffered a Shoulder Injury Related lo Vaccine

Administration ("SIRVA"), including a left shoulder complete rotator cuff tear, rotator cuff

tendinitis, partial tearing of the supraspinatus and infraspinatus tendons, partial tearing and focal

thinning of the biceps tendon, biceps tendinitis, impingement syndrome, frozen shoulder, a strain

of the long head of the biceps tendon, and a sprain of the rotator cuff capsule, within the time

period set forth in the Table, and further alleges that she experienced the residual effects of her
injury for more than six months. In the alternative, petitioner alleges that her shoulder injury was

caused-in-fact by the flu vaccine she received.

        5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on her behalf as a result· of her condition.

        6. Respondent denies that petitioner sustained a Sm.VA Table injury and denies that

p(?titioner's alleged left shoulder injuries, including a left shoulder complete rotator cuff tear,

rotator cuff tendinitis, partial tearing of the supraspinatus and infraspinatus tendons, partial

tearing and focal thinning of the biceps tendon, biceps tendinitis, impingement syndrome, frozen

shoulder, a strain of the long head of the biceps tendon, and a sprain of the rotator cuff capsule,

and their residual effects were caused-in-fact by her flu vaccine. Respondent further denies that

the flu vaccine caused petitioner any other injury or her current condition.

        7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entere.d awarding the

compensation described in paragraph 8 of this Stipulation.

       8. As soon as practicable after an entry of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a){l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $30,000.00 for pain and suffering in the fonn of a check payable to
       petitioner; and

       b. A lump sum of $735.50, which amount represents reimbursement of a
       Medicaid lien, in the form of~ check payable jointly to petitioner and

                              HMS New Mexico Casualty Recovery
                                    Case File No. 111730
                                     P.O. Box 165596
                                     Irving, TX 75016

                                                  2
         Petitioner agrees to endorse this check to HMS New Mexico Casualty Recovery.

 Payments made pursuant to paragraphs 8(a) and 8(b) represent compensation for all damages

 that would be available under 42 U.S.C. §300aa-l 5(a).

        9. As soon as practicable after the entry of judgment on entitlement in this case, and after

 petitioner has filed both a proper and timely election to receive compensation pursuant to

 42 U.S.C. § 300aa-2 I(a)( I), and an application, the parties will submit to further proceedings

 before the special master to award reasonable attorneys' fees and costs incurred in proceeding

upon this petition.

        10. Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, insurance policies, Federal or

State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.

§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

        I I. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
                                                                 '
pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-

l S(i), subject to the availability of sufficient statutory funds.

        12. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a

strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-15(g) and (h).




                                                    3
        13. In return for the payments described in paragraphs 8 and 9, petitioner, in her

individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Human Services from any and all actions or causes of action

(including agreements, judgments, claims, damages, loss of services, expenses and all demands

of whatever kind or nature) that have been brought, could have been brought, or could be timely

brought in the Court of Federal Claims, under the National Vaccine Injury Compensation

Program, 42 U.S.C. § 300aa-10 et seq., on accoW1t of, or in any way growing out of, any and all

known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting

from, or alleged to have resulted from, the flu vaccination administered on November I0, 2015,

as alleged by petitioner in a petition for vaccine compensation filed on or about October 3, 2018,

in the United States Court of Federal Claims as petition No. l 8-l 530V.

        14. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper notice to the Court on behalf of either or both of the parties.

        15. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

decision that is in complete confonnity with the terms of this Stipulation, then the parties'

settlement and this Stipulation shall be voidable at the sole discretion of either party.

        16. This Stipulation expresses a full and comp1ete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the

parties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearly agreed to. The parties further agree and understand that the award described in this


                                                  4
     Stipulation may reflect a compromise of the parties' respective positions as to liability and/or

     amount of damages, a!ld further, that a change in the nature of the injury or condition or in the

     items of compensation sought, is not grounds to modify or revise this agreement.

             17. This Stipulation shall not be constrned as an admission by the United Stales or the

     Secretary of Health and Human Services that the flu vaccin~ caused petitioner to develop

     SIRVA, including a left shoulder complete rotator cuff tear, rotator cuff tendinitis, partial tearing

    of the supraspinatus and infraspinatus tendons, partial tearing and focal thinning of the biceps

    tendon, biceps tendinitis, impingement syndrome, frozen shoulder, a strain of the long head of

    the biceps tendon, and a sprain of the rotator cuff capsule, or any other injury.

            18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

    heirs, executors, administrators, successors, and/or assigns.

                                         END OF STIPULATION
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                                                     5
Respectfully submitted,

PETITIONER:


~ < i i . . . - ·'v\ ~ C < 0
JANICE Y. ATENCIO 0


ATTORNEY OF RECORD FOR                             AUTHORIZED REPRESENTATIVE
PETITIONER:                                        OF THE ATTORNEY GENERAL:



JJ      ·A: ZG 1B
ai  cib Sayad, .C.                                           irector
75 South Broadway                                  Torts Branch
4th Floor                                          Civil Division
White Plains, NY l 060 l                           U.S. Department of Justice
Tel: (914) 729- I l JO                             P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                                ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                               RESPONDENT:
AND HUMAN SERVICES:


_3-!_~ -~tt~t±_~_ _                                         ~y--__
TAMARA OVERBY                                            SARAH C. DUNCAN
Acting Director, Division of Injury Compensation         Trial Attomcy
       Programs (DICP)                                   Torts Branch
Healthcare Systems Bureau                                Civil Division
Health Resource·s and Services Administration            U.S. Department of Justice
U.S. Department of Health and Human Services             P.O. Box 146
5600 Fishers Lane                                        Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl46B                     Washington, DC 20044-0146
Rockville, MD 20857                                      Tel: (202) 514-9729




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