    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 17-1941V
                                         UNPUBLISHED


    JANICE GUNTER,                                            Chief Special Master Corcoran

                         Petitioner,                          Filed: January 15, 2020
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Ruling on Entitlement; Uncontested;
    HUMAN SERVICES,                                           Table Injury; Influenza (Flu) Vaccine;
                                                              Shoulder Injury Related to Vaccine
                        Respondent.                           Administration (SIRVA)


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.

Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

                                     RULING ON ENTITLEMENT1

       On December 13, 2017, Janice Gunter 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 injuries including a “Shoulder Injury
Related to Vaccine Administration (SIRVA), resulting from adverse effects of an
influenza (“flu”) vaccination she received on November 16, 2016.” Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.

       On October 7, 2019, Respondent filed his Rule 4(c) report recommending that
entitlement to compensation in this case be denied. Respondent Rule 4(c) Report.

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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).
(ECF No. 34). Respondent asserted that Petitioner had not demonstrated that her
injury fulfilled the SIRVA Table criteria. Id. at 7. Specifically, Respondent found that
there was not “preponderant evidence that the onset of Petitioner’s left shoulder pain
occurred within forty-eight hours of vaccination.” Id. On October 10, 2019, Petitioner
filed Exhibit 12, which included posts from Petitioner’s Facebook account, dated
November 16, 2016, and December 19, 2016, respectively, to address the issue of
onset raised in Respondent’s Rule 4(c) Report. ECF No. 36-1. During a status
conference, Respondent’s counsel conveyed that the new evidence did not change
Respondent’s Rule 4 position.

        Following the status conference, Petitioner was ordered to file a motion for a
ruling on entitlement. ECF No. 37. In her November 29, 2019 motion, Petitioner argued
that her injury qualifies as a Table injury as she meets all the specified criteria: the onset
of her injury occurred within 48 hours of receiving her flu shot, she had no previous pain
in her shoulder, she had pain and reduced range of motion in the shoulder where the
vaccine was administered, and nothing else explains her symptoms.” ECF No. 38 at 6-
7. Regarding onset of her injury, Petitioner asserts that she “posted a picture of her
shoulder on the evening of vaccination showing a band-aid place (sic) very high up on
her arm. She indicated that her arm was hurting and asked for prayer for the pain to go
away the next day. Ex. 12 at 1. She also filed a affidavit (sic), sworn under the penalty
of perjury, that her pain was immediate. Ex. 6 at 1.” Id. at 7. Petitioner contends that
“[h]er affidavit and Facebook posts are entirely consistent with her medical records
which indicated that her pain began when she received her November 16, 2016, flu
vaccination. Each physician and physical therapist who evaluated petitioner indicated
that the onset of her pain was associated with her flu vaccination.” Id. Petitioner further
noted that “[o]n December 16, 2016, petitioner’s home nurse noted ‘Pt reports that she
instantly had pain . . . . and on December 19, 2019, [Petitioner’s physician] noted,
‘immediately starting hurting (sic) at her flu shot.’” Id. (emphasis added by Petitioner)
(citations omitted).

      On December 3, 2019, I issued a non-PDF scheduling order, ordering
Respondent to file a response to Petitioner’s motion by January 2, 2020. Respondent
requested an extension of time to respond to Petitioner’s motion, which was granted.
ECF No. 39. On January 14, 2020, Respondent’s counsel e-mailed Petitioner’s counsel
and the OSM staff attorney managing this case, to inform Petitioner and the court that
Respondent does not intend to oppose Petitioner’s motion for a ruling on entitlement.
See Informal Communication (Remark) from Respondent’s counsel dated January 15,
2020.

      In view of Respondent’s position not to oppose Petitioner’s motion, and the
evidence of record, I find that Petitioner is entitled to compensation.

IT IS SO ORDERED.

                                    s/Brian H. Corcoran
                                    Brian H. Corcoran
                                    Chief Special Master


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