           In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 15-0393V
                                       Filed: June 22, 2015
                                           Unpublished

****************************
DANIELLE SUTLEY,           *
                           *
               Petitioner, *                                Ruling on Entitlement; Concession;
                           *                                Influenza (“flu”) vaccine; Shoulder Injury
v.                         *                                Related to Vaccine Administration
                           *                                (“SIRVA”); Damages Decision Based
                           *                                on Proffer; Special Processing Unit
SECRETARY OF HEALTH        *                                (“SPU”)
AND HUMAN SERVICES,        *
                           *
               Respondent. *
****************************

David J. Schexnaydre, Schexnaydre Law Firm, Mandeville, LA, for petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

                                                DECISION 1

Vowell, Chief Special Master:

      On April 20, 2015, Danielle Sutley 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”]. The petition alleges that as a result of an Influenza (“flu”)
vaccination on October 11, 2013, petitioner suffered a shoulder injury related to vaccine
administration (“SIRVA”). The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters.

      On June 22, 2015, respondent filed her Rule 4(c) Report [“Respondent’s
Report”], in which she concedes that petitioner is entitled to compensation in this case.
Respondent’s Report at 3. Specifically, respondent “believes that petitioner’s alleged
1
  Because this unpublished decision contains a reasoned explanation for the action in this case, it will be
posted 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.
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 (2006).
injury is consistent with a [SIRVA]” that “was caused-in-fact by a vaccination.” Id.
Respondent stated that “based on the record as it now stands, petitioner has satisfied
all legal prerequisites for compensation under the [Vaccine] Act.” Id.

       In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation.

       Additionally, respondent incorporated a proffer on award of compensation
(“Proffer”) into her Rule 4(c) Report detailing compensation for all elements of
compensation to which petitioner would be entitled under §15(a). According to
respondent’s Proffer, petitioner agrees to the proposed award of compensation.

     Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $100,000.00 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


                                        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.

                                                    2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS


DANIELLE SUTLEY,

               Petitioner,

v.                                                   No. 15-393V
                                                     Chief Special Master Vowell
SECRETARY OF HEALTH AND                              ECF
HUMAN SERVICES,

               Respondent.


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

       On April 20, 2015, Danielle Sutley (“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 October 11, 2013, and subsequently suffered a

shoulder injury related to vaccine administration (SIRVA) as a result of the flu vaccination.

Petition at Preamble.

       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 a 39 year-old registered nurse and clinical specialist in the medical device

industry when she received a flu vaccine on October 11, 2013, at Walgreens. Petitioner’s
                                                 1
Exhibit (“Pet. Ex.”) 2 at 1; Pet. Ex. 3-4 at 7. Approximately three weeks later, on October 31,

2013, petitioner presented to orthopedist Barton L. Wax, M.D., with complaints of dull, aching

left shoulder pain since her flu vaccination. Pet. Ex. 4 at 47. Dr. Wax noted of petitioner had

pain with active internal rotation of her shoulder and passive external rotation. Id. at 48. She

also had tenderness to palpation over her deltoid. Id. He prescribed Mobic (a nonsteroidal anti-

inflammatory) and home exercises. Id. at 49. When her symptoms did not improve, petitioner

started physical therapy on November 27, 2013. Pet. Ex. 5-1 at 8-9. A January 7, 2014 MRI of

petitioner’s left shoulder revealed tendinopathy of the infraspinatus tendon and labral tears. Pet.

Ex. 6 at 3.

        On January 9, 2014, petitioner discussed the MRI results with Dr. Wax. Pet. Ex. 4 at 31-

33. Petitioner reported intermittent dull, aching mild-to-moderate left shoulder pain that was

aggravated by reaching, laying on her side, and weather changes. Id. at 31. She had full range of

motion in her shoulder, but some diffuse tenderness to palpitation was still present. Id. at 32. A

second cortisone injection and additional physical therapy were ordered, but neither provided

significant relief. Ex. 4 at 33, 19.

        In May 2014, petitioner moved from Louisiana to Colorado. Pet. Ex. 1. On May 30,

2014, petitioner sought treatment from orthopedic surgeon James Johnson, M.D. Pet. Ex 7 at 18.

She recounted to Dr. Johnson gradually worsening left shoulder pain since her October 2013 flu

vaccination. Id. She believed the vaccination had been administered “in an incorrect spot.” Id.

Dr. Johnson diagnosed petitioner with shoulder bursitis, chronic partial thickness tear of the

rotator cuff, and shoulder impingement syndrome. Id. at 22. Since prior conservative treatment

had failed, Dr. Johnson recommended surgical repair. Id. at 18, 22.

        On June 17, 2014, Dr. Johnson performed an arthroscopic subacromial decompression

and arthroscopic debridement of the labrum of petitioner’s left shoulder. Pet. Ex. 7 at 22-23.

                                                 2
Petitioner attended twelve physical therapy sessions during the next three months. See generally

Pet. Ex. 9. During the first few weeks after surgery, petitioner described constant pain that 6/10

in severity that worsened with movement. Id. at 28-34. She found it difficult to pick-up and play

with her two young children. Id. By her July 14, 2014 physical therapy visit, petitioner’s pain

had improved in that it was now only occasionally at night. Id. at 26. However, her shoulder felt

weak and fatigued by the end of the day. Id. At petitioner’s most recent visit to physical therapy

on September 11, 2014, her primary complaint was “occasional pain in left shoulder at night.”

Id. at 15. While overall petitioner’s shoulder strength had improved since surgery, some

lingering weakness was noted, particularly with flexion and external rotation. Id.

                                           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.

                       PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation

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

$100,000.00, which represents all elements of compensation to which petitioner would be

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

                                                 3
II.    Form of the Award

       Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $100,000.00 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

                                              LYNN E. RICCIARDELLA
                                              Senior Trial Attorney
                                              Torts Branch, Civil Division

                                               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: June 22, 2015




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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