         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1413V
                                   Filed: September 25, 2018
                                         UNPUBLISHED


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

                       Respondent.


Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On October 3, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 5, 2016. Petition at 1-2. The case was assigned to the Special Processing
Unit of the Office of Special Masters.

       On June 7, 2018, a ruling on entitlement was issued, finding petitioner entitled to
compensation for a SIRVA. On September 24, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $116,000.00
consisting of $115,000.00 for past and future pain and suffering, and $1,000.00 for past

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
unreimbursed expenses. Proffer at 2. 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.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $116,000.00 in the form of a check payable to
petitioner, Cynthia Levin. This amount represents compensation for all damages that
would be available under § 300aa-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.


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               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS
___________________________________
                                    )
CYNTHIA LEVIN,                      )
                                    )
       Petitioner,                  )    No. 17-1413V ECF
                                    )
              v.                    )    Chief Special Master Dorsey
                                    )
SECRETARY OF HEALTH                 )
AND HUMAN SERVICES,                 )
                                    )
       Respondent.                  )
___________________________________ )

                        PROFFER ON AWARD OF COMPENSATION 1

I.     Procedural History

       On October 3, 2017, Cynthia Levin (“petitioner”) filed a petition for compensation

(“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34, as amended. She alleges that, as a result of receiving the influenza (“flu”) vaccine on

October 5, 2016, she suffered from a right shoulder injury related to vaccine administration

(“SIRVA”), which is an injury listed on the Vaccine Injury Table (“Table”) for the flu vaccine. 2

Petition at 1-2. On June 4, 2018, respondent filed his Vaccine Rule 4(c) report, conceding

entitlement to compensation for a right SIRVA. On June 7, 2018, the Chief Special Master

issued a ruling on entitlement, finding that petitioner was entitled to compensation for a Table

injury of SIRVA.




       1
         This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
       2
           The Table is located at 42 C.F.R. § 100.3.
II.    Items of Compensation

       Petitioner has alleged entitlement to the following elements of compensation: past and

future pain/suffering and past unreimbursed expenses. Based upon the evidence of record,

respondent proffers that petitioner should be awarded $115,000.00 for past and future

pain/suffering, and $1,000.00 for past unreimbursed expenses, for a total of $116,000.00. This

amount represents all elements of compensation to which petitioner would be entitled under 42

U.S.C. § 300aa-15(a). Petitioner agrees.

III.   Form of the Award

       Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $116,000.00, in the form of a check payable to petitioner. 3

Petitioner agrees.

                                             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

                                             ALEXIS B. BABCOCK
                                             Assistant Director
                                             Torts Branch, Civil Division


       3
          Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.

                                                 2
                            /s/Darryl R. Wishard
                            DARRYL R. WISHARD
                            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) 616-4357
Dated: September 24, 2018   Fax: (202) 616-4310




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