        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1125V
                                      Filed: April 22, 2016
                                          Unpublished

****************************
ELLYSON OSTROVSKY,                     *
                                       *
                    Petitioner,        *       Damages Decision Based on Proffer;
                                       *       Influenza (“Flu”) Vaccine; Shoulder
  v.                                   *       Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH                    *       Administration (“SIRVA”); Special
AND HUMAN SERVICES,                    *       Processing Unit (“SPU”)
                                       *
                    Respondent.        *
                                       *
****************************
John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for petitioner.
Michael P. Milmoe, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

        On October 5, 2015, Ellyson Ostrovsky (“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 alleged that she suffered a shoulder
injury related to vaccine administration (“SIRVA”) as a result of receiving a seasonal
influenza (“flu”) vaccination on October 18, 2012. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.

        On March 9, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On
April 22, 2016, respondent filed a proffer on award of compensation (“Proffer”) indicating
petitioner should be awarded $50,422.27. Proffer at 1. In the Proffer, respondent
represented that petitioner agrees with the proffered award. Based on the record as a

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

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).
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 $50,422.27 in the form of a check payable to
petitioner, Ellyson Ostrovsky. 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.


                                                      2
             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
ELLYSON OSTROVSKY,                   )
                                     )
            Petitioner,              )  No. 15-1125V
                                     )  Chief Special Master Dorsey
      v.                             )  ECF
                                     )
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                      )
                                     )
            Respondent.              )
                                     )

               RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.        Compensation for Vaccine Injury-Related Items

          On March 7, 2016, respondent filed a Rule 4(c) Report conceding that petitioner was

entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration

(“SIRVA”). Respondent proffers that, based on the evidence of record, petitioner should be

awarded $50,422.27. This amount represents all elements of compensation to which petitioner

would be entitled under 42 U.S.C. § 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). Petitioner

agrees.

II.       Form of the Award

          Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment as described below, and requests that the special master’s decision

and the Court’s judgment award the following: 1

      A. A lump sum payment of $50,422.27 in the form of a check payable to petitioner, Ellyson
         Ostrovsky. This amount accounts for all elements of compensation under 42 U.S.C.

1
  Should petitioner die prior to entry of judgment, respondent reserves the right to move the Court for appropriate
relief. In particular, respondent would oppose any award for future medical expenses, future pain and suffering, and
future lost wages.
       § 300aa-15(a) to which petitioner would be entitled.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

                                                     Respectfully submitted,

                                                     BENJAMIN C. MIZER
                                                     Principal Deputy Assistant Attorney General

                                                     RUPA BHATTACHARYYA
                                                     Director
                                                     Torts Branch, Civil Division

                                                     VINCENT J. MATANOSKI
                                                     Deputy Director
                                                     Torts Branch, Civil Division

                                                     HEATHER L. PEARLMAN
                                                     Senior Trial Attorney
                                                     Torts Branch, Civil Division

                                                     /s/ Michael P. Milmoe
                                                     MICHAEL P. MILMOE
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146
                                                     Phone: (202) 616-4125
Dated: April 22, 2016                                Fax:    (202) 616-4310
