    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1837V
                                         UNPUBLISHED


    MARK MUELLER,                                             Chief Special Master Corcoran

                         Petitioner,                          Filed: December 20, 2019
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Damages Decision Based on Proffer;
    HUMAN SERVICES,                                           Influenza (Flu) Vaccine; Shoulder
                                                              Injury Related to Vaccine
                        Respondent.                           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 AWARDING DAMAGES1

       On November 30, 2018, Mark Mueller 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
December 3, 2017. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.

        On November 26, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On December 17, 2019, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded
$90,651.33 (consisting of $90,000.00 for pain and suffering and $651.33 for past
unreimbursable expenses). Proffer at 3. In the Proffer, Respondent represented that

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  Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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.
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).
Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find
that Petitioner is entitled to an award as stated in the Proffer.

       Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $90,651.33 (consisting of $90,000.00 for pain and suffering and
$651.33 for past unreimbursable expenses) in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be
available under § 15(a).

       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 THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS

                                                    )
 MARK MUELLER,                                      )
                                                    )
                Petitioner,                         )
                                                    )    No. 18-1837V
 v.                                                 )    Chief Special Master Corcoran
                                                    )    ECF
 SECRETARY OF HEALTH AND HUMAN                      )
 SERVICES,                                          )
                                                    )
                Respondent.                         )
                                                    )

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On November 30, 2018, Mark Mueller (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), alleging that he suffered a Shoulder Injury Related to Vaccine

Administration (“SIRVA”), “including left shoulder adhesive capsulitis, tendinosis of the

supraspinatus and infraspinatus tendons, and articular and bursal sided fraying,” as a result of an

influenza (“flu”) vaccine he received on December 3, 2017. Petition at 1. On November 26,

2019, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report

indicating that this case is appropriate for compensation under the terms of the Act, and the Chief

Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation the

same day. ECF No. 28; ECF No. 29.

I.     Items of Compensation

       A.      Pain and Suffering

       Respondent proffers that Mark Mueller should be awarded $90,000.00 in actual and

projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner

agrees.

          B.     Past Unreimbursable Expenses

          Evidence supplied by petitioner documents Mark Mueller’s expenditure of past

unreimbursable expenses related to his vaccine-related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $651.33, as

provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.

II.       Form of the Award

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

Respondent recommends that the compensation provided to Mark Mueller should be made

through a lump sum payment as described below and requests that the Chief Special Master’s

decision and the Court’s judgment award the following1: a lump sum payment of $90,651.33,

representing compensation for pain and suffering ($90,000.00), and past unreimbursable

expenses ($651.33), in the form of a check payable to petitioner, Mark Mueller.

III.      Summary of Recommended Payments Following Judgment

          Lump sum payable to petitioner, Mark Mueller:                               $90,651.33

                                                Respectfully submitted,

                                                JOSEPH H. HUNT
                                                Assistant Attorney General

                                                C. SALVATORE D’ALESSIO
                                                Acting Director
                                                Torts Branch, Civil Division




1
  Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future lost earnings
and future pain and suffering.
                                                   2
                           CATHARINE E. REEVES
                           Deputy Director
                           Torts Branch, Civil Division

                           HEATHER L. PEARLMAN
                           Assistant Director
                           Torts Branch, Civil Division

                           s/ Sarah C. Duncan
                           SARAH C. DUNCAN
                           Trial Attorney
                           Torts Branch, Civil Division
                           U.S. Department of Justice
                           P.O. Box 146
                           Benjamin Franklin Station
                           Washington, D.C. 20044-0146
                           Tel: (202) 514-9729
                           Fax: (202) 616-4310
DATED: December 17, 2019




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