     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0836V
                                         UNPUBLISHED


    ANA MARIE PROVENCIO,                                      Chief Special Master Corcoran

                         Petitioner,                          Filed: April 15, 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)


Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

        On June 12, 2018, Ana Marie Provencio 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”) as a result of an influenza (“flu”) vaccine received on
September 21, 2016. Petition at 1; Stipulation, filed April 15, 2020, at ¶¶ 1-4. Petitioner
further alleges that the vaccination was administered in the United States, that she
experienced the residual effects of her alleged injury for more than six months, and that
there has been no prior award or settlement of a civil action for damages on her behalf
as a result of her condition. Petition at 9-10; Stipulation at ¶¶ 3-5. “Respondent denies
that petitioner suffered a SIRVA Table injury, and denies that the flu vaccine caused
petitioner to suffer from a left shoulder injury or any other injury or her current condition.”
Stipulation at ¶ 6.

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  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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).
       Nevertheless, on April 15, 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 $70,924.16 in the form of a check payable to Petitioner.
        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.

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

                                              )
ANA MARIE PROVENCIO,                          )
                                              )
               Petitioner.                    )
                                              )       No. 18-836V
        V.                                    )       Chief Special Master Corcoran
                                              )       ECF
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
     Respondent.
______________                                )
                                              )

                                         STIPULATION

       The parties hereby stipulate to the following matters:

        t. Ana Marie Provencio, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l0 to -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 vaccine on September 21, 2016.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that she sustained a left shoulder injury related to vaccine

administration ('·SIRVA") within the time period set forth in the Table, or in the alternative, that

her alleged shoulder injury was caused by the vaccine. She further alleges that she experienced

the residual effects of her alleged injury for more than six months.

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

for damages on her behalf as a resu lt of her condition.
        6. Respondent denies that petitioner suffered a SIRVA Table injury, and denies that the

flu vaccine caused petitioner to suffer from a left shoulder injury or any other injury or her

current condition.

        7. Maintaining their above-stated positions~ the patties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered 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-21(a)(I), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

       A lump sum of $70,924.16 in the fonn of a check payable to petitioner. This
       amount represents compensation for all damages that would be available under 42
       U .S.C. § 300aa- I 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-21(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-l 5(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.



                                                  2
        11. 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 5(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-15(a) and (d). and subject to the conditions of 42 U.S.C.

§ 300aa-l S(g) and (h).

        13. 1n 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-l 0 et seq., on account 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 September 21 , 2016,

as alleged by petitioner in a petition for vaccine compensation filed on or about June 12, 2018, in

the United States Court of Federal Claims as petition No. I 8-836V.

        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.




                                                     3
        15. Jf 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.

        l 6. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the Nationa l 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

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

amount of damages, and 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 construed as an admission by the United States or the

Secretary of Health and Human Services that the flu vaccine caused petitioner to have a left

shoulder injury or any other injury or her current condition.

        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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Respectfully submitted,




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


                                           ~~ (
Conway Homer, .C.                          Deputy Director
16 Shawmut Street                          Torts Branch, Civil Division
Boston, MA 02116                           U.S. Department of Justice
                                           P.O. Box 146
                                           Benjamin Franklin Station
                                           Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                  ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH                     RESPONDENT:
AND HUMAN SERVICES:
                                           ~                     m        0..a..UA.-
                                             ~ I ~ 1- l_------...
TAMARA OVERBY                              ciiefsr~          ECER
Acting Director, Division of Injury        Trial Attorney
Compensation Programs                      Torts Branch, Civil Division
Healthcare Systems Bureau                  U.S. Department of Justice
U.S. Department of Health                  P.O. Box 146
and Human Services                         Benjamin Franklin Station
5600 Fishers Lane                          Washington, DC 20044-0146
Parklawn Building, Mail Stop 08Nl46B       Tel: (202) 616-3665
Rockville, MD 20857


Dated:     ~ / 1'-.£{'J..()




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