        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 14-1030V
                                       Filed: May 28, 2015
                                           Unpublished

****************************
HEATHER COOK,                         *
                                      *
                   Petitioner,        *      Damages Decision Based on Proffer;
                                      *      Influenza; Shoulder Injury Related to
                                      *      Vaccine Administration (“SIRVA”);
SECRETARY OF HEALTH                   *      Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                   *
                                      *
                   Respondent.        *
                                      *
****************************
Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC for respondent.

                               DECISION AWARDING DAMAGES 1

Vowell, Chief Special Master:

       On October 23, 2014, Heather Cook filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered an injury to the
shoulder and/or brachial plexus as a result of receiving an influenza vaccine on
September 30, 2013. Petition at 1-2. The case was assigned to the Special Processing
Unit of the Office of Special Masters.

       On May 28, 2015, respondent filed her Rule 4(c) report in which she both
concedes that petitioner is entitled to compensation in this case and presents a Proffer
on Award of Compensation in the same document. Respondent’s Rule 4(c) Report at 1,
4. Specifically, respondent states that “DICP believes that petitioner’s alleged injury is
consistent with a shoulder injury related to vaccine administration (“SIRVA”). As such,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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 (2006).
DICP agrees that petitioner’s claim satisfies the Althen requirements and that her
alleged injury was caused in fact by a vaccination. See Althen v. HHS, 418 F.3d 1274,
1278 (Fed. Cir. 2005).” Id. at 3. Respondent further agrees that petitioner suffered
residual effects of her injury for at least six months and that she has satisfied all legal
prerequisites for compensation. Id.

       Respondent’s Proffer on Award of Compensation, filed as part of her Rule 4
report, indicates that petitioner should be awarded $70,000.00 in the form of a check
payable to petitioner. Id. at 4. Petitioner agrees. Id.

       In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation and pursuant to the terms stated in the
attached Proffer, I award petitioner a lump sum payment of $70,000.00 in the form
of a check payable to petitioner, Heather Cook. 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

                                        s/Denise K. Vowell
                                        Denise K. Vowell
                                        Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
           Case 1:14-vv-01030-UNJ Document 19 Filed 05/28/15 Page 1 of 5



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


HEATHER COOK,

               Petitioner,

v.                                                     No. 14-1030V
                                                       Chief Special Master Vowell
SECRETARY OF HEALTH AND                                ECF
HUMAN SERVICES,

               Respondent.


         RESPONDENT’S RULE 4(c) REPORT AND PROFFER ON DAMAGES

       On October 23, 2014, Heather Cook (“petitioner”) filed a petition for compensation

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

34 (“Vaccine Act” or “Act”), as amended. The Petition alleges that petitioner received an

influenza (“flu”) vaccine in her left shoulder on September 30, 2013, and subsequently suffered a

shoulder injury/brachial plexus as a result of the flu vaccination. Petition at 2.

       Medical personnel at the Division of Injury Compensation Programs (“DICP”) at the

Department of Health and Human Services have reviewed the Petition and medical records filed

in the case, to determine whether petitioner qualifies for compensation under the Vaccine Act.

DICP has concluded that compensation is appropriate in this case. In accordance with Vaccine

Rule 4(c), the Secretary of Health and Human Services (“respondent”) submits the following as

her responsive report.

                                     FACTUAL SUMMARY

       Petitioner was 44 years old when she received a flu vaccine on September 30, 2013, at

Walgreens. Petitioner’s Exhibit (“Pet. Ex.”) 2 at 1. On October 9, 2013, petitioner was treated at

Dean Clinic for left shoulder pain. Pet. Ex. 3 at 41. It was noted that petitioner’s pain, which
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             Case 1:14-vv-01030-UNJ Document 19 Filed 05/28/15 Page 2 of 5



petitioner reported as having started seven days earlier, was “reminiscent of interarticular or

tendon inflammation” and that a flu vaccine “injected in upper posterior shoulder could have

penetrated capsule or injected into tendon.” Id. Ibuprofen was prescribed. Id. On October 16,

2013, petitioner returned to the clinic, stating that her pain was “getting progressively worse with

increasing pain and stiffness” and was interfering with normal activity. Id. Petitioner’s range of

motion was extremely limited. Id. at 44.

        On October 23, 2013, petitioner presented to orthopedic specialist, Dean T. Fochios,

M.D., with left shoulder pain shooting down her arm, weakness, and minor numbness and

tingling in her fingers. Pet. Ex. 4 at 1. Petitioner had full range of motion and pain with extreme

motion. Id. at 3. Dr. Fochios noted that petitioner suffered a “contusion of the left shoulder

secondary to a flu injection with secondary stiffness and discomfort.” Id. at 4. Petitioner was

referred to physical therapy. Id. Petitioner returned to Dr. Fochios on November 13, 2013, as

she still had “residual discomfort and her condition ha[d] not fully resolved.” Id. at 18.

Petitioner had minor tightness and tenderness that had spread to her neck and upper extremity.

Id. at 19.

        On December 10, 2013, Dr. Fochios noted that petitioner continued to complain “of

achiness in and around the left shoulder, as well as weakness” despite consistently attending

physical therapy and performing her normal home exercise program. Pet. Ex. 4 at 21. Petitioner

had full range of motion but experienced achiness at the extremes of motion. Id. at 22. Dr.

Fochios noted that petitioner still had a “significant generalized weakness in external rotation of

the shoulder. . . . in the area where she received her injection.” Id. at 22−23. Dr. Fochios

referred petitioner to a neurologist. Id. at 23.

        Adam R. Jaffe, D.O., a neurologist, saw petitioner on December 23, 2013. Pet. Ex. 4 at

12. Petitioner’s pain had reduced in intensity and she was mostly concerned with her hand

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           Case 1:14-vv-01030-UNJ Document 19 Filed 05/28/15 Page 3 of 5



clumsiness. Id. Dr. Jaffe noted that petitioner suffered tension-type headaches after receiving

the flu shot. Id. Dr. Jaffe’s differential diagnosis included a “reaction to the flu shot, as well as

possible reaction resulting in a brachial plexitis.” Id. Dr. Jaffe ordered an electromyogram

(“EMG”) and referred petitioner to occupational therapy. Id. The EMG revealed no

abnormalities. Pet. Ex. 3 at 106. In a follow-up with Dr. Jaffe on March 24, 2014, petitioner

complained of difficulty with her hand and fine finger movements. Pet. Ex. 9 at 9. Dr. Jaffe

recommended intravenous steroids as possible therapy but petitioner declined. Id. A chest MRI

on April 1, 2014, showed a normal brachial plexus but an “incidental degenerative change in the

left shoulder.” Id. at 10.

        On June 23, 2014, petitioner saw her primary care physician, Karen C. Swallen, M.D., for

continued shoulder pain. Dr. Swallen noted that petitioner was “significantly weak in her rotator

cuff.” Pet. Ex. 6 at 2. In a follow-up on July 22, 2014, petitioner reported that her hand

weakness, difficulty with performing daily tasks, and clumsiness persisted. Id. at 4.

                                            ANALYSIS

        DICP believes that petitioner’s alleged injury is consistent with a shoulder injury related

to vaccine administration (“SIRVA”). As such, DICP agrees that petitioner’s claim satisfies the

Althen requirements and that her alleged injury was caused-in-fact by a vaccination. See Althen

v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). No other cause for petitioner’s condition has

been identified. See 42 U.S.C. § 300aa-13(a)(1)(B). Based on the medical records outlined

above, petitioner has met the statutory requirements by suffering the residual effects of her

condition for more than six months. See id. at § 300aa-11(c)(1)(D)(i). Therefore, based on the

record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the

Act.



                                                  3
           Case 1:14-vv-01030-UNJ Document 19 Filed 05/28/15 Page 4 of 5



                       PROFFER ON AWARD OF COMPENSATION

I.    Items of Compensation

       Based upon the evidence of record, respondent proffers that petitioner should be awarded

$70,000.00, which represents all elements of compensation to which petitioner would be entitled

under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II.    Form of the Award

       Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $70,000.00 in the form of a check payable to petitioner. 1

Petitioner agrees.

       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

                                              GLENN A. MACLEOD
                                              Senior Trial Counsel
                                              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 medical
expenses, future pain and suffering, and future lost wages.


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         Case 1:14-vv-01030-UNJ Document 19 Filed 05/28/15 Page 5 of 5



                                    s/ Jennifer L. Reynaud
                                   JENNIFER L. REYNAUD
                                   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) 305-1586

Date: May 28, 2015




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