        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1011V
                                    Filed: October 10, 2017
                                          Unpublished

****************************
AMRIT DHANOA,                              *
                                           *
                     Petitioner,           *     Ruling on Entitlement (Non-Table); Fact
v.                                         *     Hearing; Findings of Fact; Influenza
                                           *     (“Flu”) Vaccine; Shoulder Injury Related
SECRETARY OF HEALTH                        *     to Vaccine Administration (“SIRVA”);
AND HUMAN SERVICES,                        *     Special Processing Unit (“SPU”)
                                           *
                     Respondent.           *
                                           *
****************************
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.


                                    RULING ON ENTITLEMENT1

Dorsey, Chief Special Master:

        On September 11, 2015, Amrit Dhanoa (“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 alleges that she suffered a shoulder
injury caused in fact by the influenza (“flu”) vaccine she received on August 19, 2014.
Petition at 1, ¶¶ 3, 14. Petitioner further alleges that she received the vaccine in the
United States, suffered the residual effects of her injury for more than six months, and
has not received any compensation for her injury, alleged as vaccine caused. Id. at ¶¶
3, 14-16. The case was assigned to the Special Processing Unit (“SPU”) of the Office
of Special Masters.




1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the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).
      I.     Procedural History

         Along with her petition, petitioner filed medical records and a statement of
completion. See Exhibits 1-9 (ECF No. 1); Statement of Completion (ECF No. 2). The
initial status conference was held on October 26, 2015. Maximillian Muller appeared on
behalf of petitioner. Ann Martin appeared for respondent.

        At the conference, respondent’s counsel indicated respondent had not identified
any missing medical records but did have some concerns regarding the facts alleged in
petitioner’s claim. See Order, issued Oct. 26, 2015 (ECF No. 13). Respondent’s
counsel estimated respondent could file a Rule 4(c) report setting forth these concerns
within 45 days. See id.

        On December 9, 2015, respondent filed his Rule 4(c) Report asserting that
petitioner’s request for entitlement to compensation under the Vaccine Act be denied.
Respondent’s Rule 4(c) at 1 (ECF No. 14). Respondent argued that petitioner
appeared to be advancing a SIRVA claim but had not provided “a preponderance of
evidence demonstrating the requisite facts to establish compensation under a causation
theory.” Id. at 5. Specifically, respondent argued “there is no medical documentation
demonstrating that petitioner received the flu vaccination in her right arm” and varying
and conflicting evidence regarding the onset of petitioner’s symptoms. Id. at 5-6.
Respondent also noted that at least some medical records appeared to be missing. Id.
at 3 n.1. Respondent maintained that “the most contemporaneous medical
documentation is inconsistent with a SIRVA claim.” Id. at 5. In February 2017,
petitioner filed additional medical records in an attempt to address respondent’s
concerns. See Exhibits 10-12 (ECF Nos. 16-18).

        The OSM staff attorney managing this SPU case held a status conference on
March 29, 2016. During the call, she informed the parties that the undersigned had
reviewed the medical records and filings in this case and believed the case should
settle. See Order, issued April 1, 2016 (ECF No. 21). She told counsel the undersigned
would like them to engage in settlement discussions before holding a Rule 5 status
conference. See id.

       For the next two months, the parties engaged in settlement discussions. After
exchanging settlement amounts, they agreed they did not believe settlement was
feasible and wished the case to “be placed on a litigation track.” Joint Status Report,
filed May 26, 2016 (ECF No. 24). The undersigned conducted a Rule 5 conference on
June 30, 2016. After hearing from the parties, the undersigned presented her tentative
findings and conclusions. Specifically, she found that petitioner received the influenza
vaccine in her right (injured) arm, that the onset of petitioner’s injury was immediate,
that petitioner’s failure to mention her shoulder pain to her primary care provider two
days after vaccination and to her dermatologist on visits in August and December 2014
was reasonable, and that petitioner’s clinical course and diagnosis is consistent with
SIRVA. Rule 5 Scheduling Order, issued July 5, 2016, at 2-3 (ECF No. 25). The
undersigned ordered the parties to file a joint status report within 30 days. Id. at 3-4.




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         In their status report, the parties indicated they “have discussed this case in
detail following the Rule 5 Conference and believe a fact hearing is necessary to reach
a resolution.” Joint Status Report, filed July 27, 2016 (ECF No. 26). The undersigned
conducted a fact hearing in Dallas, Texas on December 8, 2016. During the hearing, it
became clear that some medical records were outstanding. See Post-Hearing Order,
issued Dec. 8, 2016, at 1 (ECF No. 31). The undersigned allowed petitioner thirty days
to file the outstanding medical records. Id. at 2.

        Petitioner filed the additional medical records on January 10, February 10, and
February 22, 2017. (ECF Nos. 34, 37, 40). On March 20, 2017, the parties requested a
written determination from the undersigned regarding several areas of disagreement: 1)
the arm in which the vaccine was administered and 2) the onset of petitioner’s injury.
Joint Status Report (ECF No. 41). On April 19, 2017, the undersigned issued a fact
ruling finding the vaccination was administered in petitioner’s right arm as alleged and
her onset occurred within 48 hours. (ECF No. 42). In her ruling, the undersigned
included a detailed discussion of the evidence presented and the parties’ respective
arguments. She encouraged the parties to consider an informal resolution of the claim.
Id. at 7.

       On June 21, 2017, respondent filed a joint status report on behalf of the parties
indicating he “conveyed a tentative offer of settlement to petitioner on June 12, 2017”
and petitioner was considering the offer. (ECF No. 45). At a July 7, 2017 status
conference with the staff attorney, petitioner’s counsel indicated petitioner was
considering respondent’s settlement offer. See Order, issued July 7, 2017, at 1 (ECF
No. 46). He further indicated petitioner could reach a decision and provide respondent
with a response within 30 days. The parties confirmed that the main area of
disagreement involved the appropriate amount for petitioner’s pain and suffering in this
case. Id. They discussed the options available if they could not informally resolve the
case. Id. at 1-2.

       On August 7, 2017, the parties filed a joint status report indicating “they are
unable to resolve this case by settlement and request that the Chief Special Master
issue a decision determining whether Petitioner is entitled to compensation.” Joint
Status Report at 1 (ECF No. 47). They added that “[i]f the Chief Special Master
determines that Petitioner is entitled to compensation, the parties agree that efforts to
resolve damages informally will not be productive . . . [and] therefore anticipate
resolution of damages by decision of the Chief Special Master.” Id.

       II.    Causation

       Having resolved the pertinent factual issues, the undersigned finds petitioner has
met all of the criteria for a SIRVA. As set forth in the April 19, 2017 fact ruling, the
undersigned found petitioner suffered symptoms of SIRVA within 48 hours of receiving
the August 19, 2014 influenza vaccine.




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       Although petitioner’s claim was filed before SIRVA was added to the Vaccine
Injury Table, and thus cannot be found to be a SIRVA Table injury, 3 the undersigned’s
findings were informed by the criteria used to evaluate such claims.4 Petitioner has met
her burden of proving causation-in-fact under Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274 (Fed. Cir. 2005).

           III. Conclusion

      In view of the submitted evidence, including the medical records, credible
witness testimony, and findings of fact, the undersigned finds petitioner entitled
to Vaccine Act compensation.

IT IS SO ORDERED.

                                            s/Nora Beth Dorsey
                                            Nora Beth Dorsey
                                            Chief Special Master




3Originally, the effective date for the new rule was February 21, 2017. Revisions to the Vaccine Injury
Table, 82 Fed. Reg. 6294 (Jan. 19, 2017) (to be codified at 42 C.F.R. pt. 100). This effective date was
delayed until March 21, 2017. Delay of Revisions to the Vaccine Injury Table, 82 Fed. Reg. 11321 (Feb.
22, 2017) (to be codified at 42 C.F.R. pt. 100).

4   The criteria are as follows:

           A vaccine recipient shall be considered to have suffered SIRVA if such recipient
           manifests all of the following: (i) No history of pain, inflammation or dysfunction of the
           affected shoulder prior to intramuscular vaccine administration that would explain the
           alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after
           vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced
           range of motion are limited to the shoulder in which the intramuscular vaccine was
           administered; and (iv) No other condition or abnormality is present that would explain the
           patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial
           neuritis, mononeuropathies, or any other neuropathy).

82 Fed. Reg. 6303 (Qualifications and Aids to Interpretation for SIRVA); see also National
Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg.
45132, Notice of Proposed Rulemaking, July 29, 2015 (citing Atanasoff S, Ryan T, Lightfoot R,
and Johann-Liang R, 2010, Shoulder injury related to vaccine administration (SIRVA), Vaccine
28(51):8049-8052).


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