Turnquest v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-0065V

UNPUBLISHED

JONATHAN TURNQUEST,

Chief Special Master Corcoran

Petitioner,

v.

SECRETARY OF HEALTH AND Filed: July 2, 2024

HUMAN SERVICES,

Respondent.

Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for Petitioner.

Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1

On January 5, 2021, Jonathan Turnquest filed a petition for compensation under

the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the

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

Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on August

15, 2020. Petition, ECF No. 1 at 1. The case was assigned to the Special Processing Unit

of the Office of Special Masters (the “SPU”).

For the reasons described below, and after holding a brief hearing on entitlement

and damages in this matter, I find that Petitioner is entitled compensation, and I award

damages in the total amount of $30,000.00, for Petitioner’s actual pain and suffering.

1

Although I have not formally designated this Decision for publication, I am required to post it on the United

States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it

contains a reasoned explanation for my determination. 44 U.S.C. § 3501 note (2012) (Federal Management

and Promotion of Electronic Government Services). This means the Decision 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).

I. Relevant Procedural History

On January 5, 2021, Petitioner filed the present claim. Petition at 1. On November 21,

2022, Respondent stated that he had determined that this case was not appropriate for

compensation and requested 45 days to file the Rule 4(c) Report. ECF No. 30.

On January 5, 2023, Respondent filed the Rule 4(c) report contesting entitlement,

stating that Petitioner’s claim failed for several reasons. Respondent’s Report at 6-11.

First, Respondent argued that Petitioner failed to satisfy the six-month severity

requirement. Id. at 6. Second, assuming that Petitioner was able to overcome the severity

objection, Respondent argued that Petitioner’s SIRVA claim failed because the evidence

did not show that his shoulder pain began within 48 hours of vaccination. Id. at 10. Third,

Respondent argued that there were other conditions or abnormalities that Petitioner had

that explained his condition. Id.

On May 31, 2023, Petitioner filed a Motion for Ruling on Record and Brief in

support of Damages (“Motion”), arguing that Petitioner had met the severity requirement

and established entitlement to compensation for a SIRVA injury. ECF No. 39. As such,

Petitioner requested $75,000.00 for his pain and suffering. Id.

Respondent filed a Response to Petitioner’s Motion on June 30, 2023

(“Response”), recommending that entitlement to compensation be denied. ECF No. 41.

Respondent argued that Petitioner had failed to satisfy the six-month severity requirement

because the single record that occurred after the six-month mark, was only made

because Petitioner sought to cure the severity requirement of the case. Response at 9-

10. Respondent also argued that Petitioner had not established that he suffered a left-

side SIRVA due to the flu vaccination, because he failed to establish that his shoulder

pain began within 48-hours of vaccination, as evidenced by his first complaint, more than

three months after vaccination, and because Petitioner’s rotator cuff tear was not

preponderantly caused by the vaccination and explained his symptoms. Id. at 12-16.

This case was set for an expedited “Motions Day” hearing, at which time I would

decide the disputed issues based on all evidence filed to date and any oral argument from

counsel. The Motions Day hearing took place on June 28, 2024. Minute Entry dated June

28, 2024. After the argument, I orally ruled on Petitioner’s entitlement to compensation

and made a damages determination as well. This Decision memorializes those

findings/determinations.

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II. Factual Findings and Ruling on Entitlement

A. Legal Standards

Before compensation can be awarded under the Vaccine Act, a petitioner must

demonstrate, by a preponderance of evidence, all matters required under Section

11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A).

In making this determination, the special master or court should consider the record as a

whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or

by medical opinion. Id.

To resolve factual issues, the special master must weigh the evidence presented,

which may include contemporaneous medical records and testimony. See Burns v. Sec'y

of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special

master must decide what weight to give evidence including oral testimony and

contemporaneous medical records). Contemporaneous medical records are presumed to

be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.

Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a

petitioner may present testimony which is “consistent, clear, cogent, and compelling.”

Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.

Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No.

90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).

In addition to requirements concerning the vaccination received, the duration and

severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must

establish that he suffered an injury meeting the Table criteria, in which case causation is

presumed, or an injury shown to be caused-in-fact by the vaccination she received.

Section 11(c)(1)(C).

The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,

identifies the vaccines covered under the Program, the corresponding injuries, and the

time period in which the particular injuries must occur after vaccination. Section 14(a).

Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48

hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria

establishing a SIRVA under the accompanying QAI are as follows:

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In summary, a petitioner must establish that he received a vaccine covered by the Program, administered

either in the United States and its territories or in another geographical area but qualifying for a limited

exception; suffered the residual effects of his injury for more than six months, died from his injury, or

underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected

an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).

3

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests

as shoulder pain and limited range of motion occurring after the

administration of a vaccine intended for intramuscular administration in the

upper arm. These symptoms are thought to occur as a result of unintended

injection of vaccine antigen or trauma from the needle into and around the

underlying bursa of the shoulder resulting in an inflammatory reaction.

SIRVA is caused by an injury to the musculoskeletal structures of the

shoulder (e.g., tendons, ligaments, bursae, etc.). SIRVA is not a

neurological injury and abnormalities on neurological examination or nerve

conduction studies (NCS) and/or electromyographic (EMG) studies would

not support SIRVA as a diagnosis (even if the condition causing the

neurological abnormality is not known). 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).

42 C.F.R. § 100.3(c)(10).

B. Six Month Severity Requirement

To be eligible for compensation generally, the Vaccine Act requires a petitioner to

have “suffered the residual effects or complications of such illness, disability, injury, or

condition for more than 6 months after the administration of the vaccine.” 42 U.S.C. §

300aa-11(c)(1)(D)(i).

I find that the record has presented enough evidence to support the determination

that the six-month severity requirement is met. Petitioner received the vaccination on

August 15, 2020. Thus, he must demonstrate that his injury persisted through February

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15, 2021. The thrust of Respondent’s argument is that Petitioner had only one shoulder-

related care appointment beyond six months from his August 15, 2020 vaccination, and

this appointment “was clearly made in response to this Court’s concern that the severity

requirement was not satisfied.” Response at 9. Because this appointment was made “for

the purpose of litigation,” Respondent argues that I must consider this as evidence of bias

or prejudice and essentially ignore it. Id. at 10. Without consideration of this appointment,

Respondent states that Petitioner’s failure to satisfy the severity requirement is fatal to

his claim and the petition must be dismissed.

Admittedly, the claim was filed somewhat prematurely, anticipating the possibility

that the Department of Health and Human Services was going to eliminate SIRVA as a

Table claim. Motion at 7. Thus, Petitioner needed additional evidence after filing to meet

the severity requirement (which could not be established when the claim was initiated).

ECF No. 13. On August 23, 2021, Petitioner presented to his orthopedist, Dr. Rotstein, to

have his shoulder evaluated. Ex. 7 at 8. Dr. Rotstein examined Petitioner’s shoulder on

August 23, 2021 and documented that while Petitioner exhibited a normal range of motion

(“ROM”) both actively and passively, and his ROM had improved from his December 14,

2020 visit, his condition was otherwise largely unchanged with tenderness of the greater

tuberosity and at the lateral cuff insertion, pain with passive range of motion, and positive

Neer’s and Hawkin’s impingement tests. Ex. 7 at 6. These are objective findings that

demonstrate that Petitioner continued to have impairments of his left shoulder that were

not present prior to vaccination. Thus, Petitioner has presented adequate evidence that

the six-month severity requirement has been met.

C. Factual Finding Regarding QAI Criteria for Table SIRVA

Respondent has also argued that Petitioner failed to prove both the second and

fourth criterion for a SIRVA Claim, i.e., that Petitioner’s shoulder pain did not occur within

the specified 48-hour onset timeframe, and that there is an abnormality present that would

explain Petitioner’s symptoms. Response at 11-17.

a. Onset

Although Petitioner argued that his pain and limited range of motion began the day

after vaccination, Respondent maintained that the contemporaneous medical records do

not support this assertion. Response at 12. Respondent noted that at the first, post-

vaccination medical appointment (on September 25, 2020), Petitioner did not mention

any shoulder pain, and in fact told his PCP that he was “feeling good.” Ex. 4 at 9. And in

his first visit to Dr. Rotstein (now more than three months after vaccination) on November

24, 2020, Petitioner only stated that he “noticed shoulder pain develop after his flu shot

[that] never went away and recently worsened.” Ex. 2 at 12. Respondent argued that this

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record does not document the onset of Petitioner’s symptoms within 48-hours of

vaccination. Response at 12.

In fact, however, the evidence in the record preponderantly supports a finding that

Mr. Turnquest’s left shoulder pain occurred within 48-hours of his August 15, 2020

vaccination. Petitioner’s use of the term “after,” like the word “since,” occurs frequently in

cases involving onset issues, and I have consistently interpreted the words to be

analogous to “close in time,” even they are otherwise nonspecific. In addition, most

individuals believe vaccine-associated shoulder pain will dissipate, and often wait before

seeking medical advice. And the delay in this case is not significant. Without any

counterstatements or other proof specifically placing the onset outside the 48-hour

window, I find that there is preponderant evidence in this case to find that onset has been

met.

b. Another abnormality that explains Petitioner’s symptoms

Respondent’s second argument, that there are other conditions or abnormalities

that would explain Petitioner’s condition, is based on an MRI report that showed that

Petitioner had a full thickness tear of the distal anterior supraspinatus tendon and mild

degeneration of the AC joint. Ex. 2 at 4. Respondent argues that neither of these

conditions are likely to be caused by administration of the flu vaccine. Response at 16.

This argument is also not persuasive. Assuming that Petitioner had a preexisting tear in

his shoulder prior to vaccination, this tear was not causing him any symptoms.

Respondent acknowledges that Petitioner had no reported history of left shoulder issues

prior to vaccination. Response at 2. Thus, even accepting Respondent’s argument as

true, it is more likely than not, based on the existing record, that any preexisting pathology

did not cause the symptoms that Petitioner experienced to his left shoulder after

vaccination.

D. Other Requirements for Entitlement

As stated above, I find that Petitioner has satisfied all requirements for a Table

SIRVA and is entitled to a presumption of causation. Even if a petitioner has satisfied the

requirements of a Table injury or established causation-in-fact, he or she must also

provide preponderant evidence of the additional requirements of Section 11(c), i.e.,

receipt of a covered vaccine, vaccine received within the United States, etc. See generally

§ 11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed. I therefore find

that Petitioner is entitled to compensation in this case.

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E. Damages

a. The Parties’ Arguments

Citing three4 prior damages determinations, Petitioner requests $75,000.00 in pain

and suffering. Motion at 15-20. Petitioner asserts that his course of treatment warrants an

award close to the median of awards for SIRVA cases because he experienced significant

pain and limited range of motion within 24 hours of vaccination, had significant findings

on MRI, including a full thickness rotator cuff tear, and his only prescribed treatment

course was surgery due to the severity of his injury. Petitioner argued that his situation is

comparable to the aforementioned non-surgical SIRVA cases. Id. at 15-17.

Respondent, by contrast, proposes an award of no more than $20,000.00 for pain

and suffering. Response at 17-21. He argues that “petitioner’s injury is much less severe

than other SIRVA cases in the program, including the one primarily relied upon by

petitioner as a ‘comparable’ case.” Id. at 19. Respondent cited to one case5 during oral

argument that was filed the day before the hearing, where the petitioner was awarded

$35,000.00, arguing that this case is more analogous than the cases cited by Petitioner,

and that a lesser amount is appropriate given the distinguishing factors in each of the

cases.

b. Legal Standards for Damages Awards

In another recent decision, I discussed at length the legal standard to be

considered in determining damages and prior SIRVA compensation within SPU. I fully

adopt and hereby incorporate my prior discussion in Sections II and III of Berge v. Sec’y

Health & Human Servs., No. 19-1474V, 2021 WL 4144999, at *1-3. (Fed. Cl. Spec. Mstr.

Aug. 17, 2021).

In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or

actual and projected pain and suffering and emotional distress from the vaccine-related

injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the

burden of proof with respect to each element of compensation requested. Brewer v. Sec’y

of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.

Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and

4

Petitioner discusses the following cases in his Motion: Decoretz v. Sec’y of Health & Human Servs., No.

19-391V, 2021 WL 23466468, at *2-3 (Fed. Cl. May 7, 2021); Smallwood v. Sec’y of Sec’y of Health &

Human Servs., No. 18-291v, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. April 29, 2020); Acetta v. Sec’y of

Health & Human Servs., No. 17-11731v, 2021 WL 1718202 (Fed. Cl. Spec. Mstr., March 31, 2020).

5

Respondent filed the following case on June 27, 2024: Valdez v. Sec’y of Health & Human Servs., No. 21-

0394v, 2024 WL 1526536 at *7-10 (Fed. Cl. Spec. Mstr. Feb. 28, 2024). ECF No. 45-1.

7

suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of

the suffering.6

c. Appropriate Compensation for Pain and Suffering

In this case, awareness of the injury is not disputed. The record reflects that at all

times Mr. Turnquest was a competent adult with no impairments that would impact his

awareness of his injury. Therefore, I analyze principally the severity and duration of his

injury. When performing this analysis, I review the same record relied upon to determine

entitlement, including the filed affidavits and medical records, written briefs, and argument

at the Motions Day hearing. I have also considered prior awards for pain and suffering in

both SPU and non-SPU SIRVA cases and rely upon my experience adjudicating these

cases.

Mr. Turnquest averred that he “began to experience pain and limited range of

motion in [his] left arm and shoulder.” Ex. 1 at 1. He stated that he cancelled his regular

Sunday golf foursome the day after he received the vaccination, on August 16, 2020, and

told his friends that he had a flu shot that might have injured his shoulder and that he did

not want to make it worse by playing golf. Ex. 8 at 1. He stated that he was not able to

return to golf for the rest of the season because of his injury. Id. He stated that he decided

to live with the pain and was optimistic his shoulder would heal on its own. Id. at 2. He

said that his optimism waned in October 2020 although he took the risk of contracting

COVID-19 very seriously and decided to forego seeing a doctor as long as he could. Id.

He said he could no longer tolerate the pain in early November and had to wait several

weeks for an opening but was able to see an orthopedic specialist on November 24, 2020.

Id. at 3.

On November 24, 2020, more than three months post vaccination, Mr. Turnquest

presented to Barrington Orthopedic Specialists where he was evaluated by orthopedic

surgeon Jason Rotstein, M.D. Ex. 2 at 12. He reported that his left shoulder pain “began

in August 2020 … and after his flu shot [that] never went away and recently worsened.”

Id. On exam, Petitioner had reduced range of motion, weakness, tenderness and positive

signs on the Neer’s Hawkins, and drop arm tests. Id. An x-ray was normal and an MRI

was ordered. Id. at 12.

On December 2, 2020, Mr. Turnquest underwent a left shoulder MRI which

revealed: 1) Full-thickness tear of the distal anterior supraspinatus tendon. Fluid signal

6

I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May

14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3

(Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.

1995)).

8

gap measures approximately 1.5 cm. 2) Mild-to-moderate distal infraspinatus

tendinopathy. 3) Mild AC joint DJD with inferior acromial tilting. This narrows the

coracoacromial arch and can predispose to impingement. 4) Small joint effusion with

bursal fluid extension into the subacromial/subdeltoid bursa. Moderate subcoracoid

bursitis. Ex. 2 at 14.

Mr. Turnquest returned to Barrington Orthopedic on December 14, 2020. Ex. 2 at

7. He was noted to have an injury of the tendon of the rotator cuff of his shoulder and was

slated to undergo shoulder arthroscopy with rotator cuff repair surgery. Ex. 2 at 9.

Petitioner received a referral for post-operative physical therapy (“PT”). Id. However,

Petitioner never underwent surgery. See, i.e., Ex. 7 at 8.

The next time Mr. Turnquest is seen for his shoulder is on August 23, 2021 (more

than eight months later), for evaluation of his shoulder and to discuss his options for

treatment. Ex. 7 at 6. On examination, Dr. Rotstein noted improved active and passive

range of motion, but continued pain with motion and impingement. Ex. 7 at 10. Petitioner

and Dr. Rotstein discussed the “natural history of diagnosis, non-surgical and surgical

treatment and alternative treatment, risks and benefits of each and risks of delaying

treatment,” after which petitioner “made an informed decision to proceed with surgery.”

Id. Petitioner was to “call when ready to schedule surgery.” Id. There are records of further

treatment for Petitioner’s shoulder.

Mr. Turnquest stated that he still suffers from pain in his left shoulder to this day.

Ex. 1 at 1. He described pain that becomes aggravated, and audible popping and cracking

noises when he raises his left shoulder. Id. He has difficulty with daily activities that require

use of his left arm, such as driving, reaching out his car window at a drive through,

shoveling snow, and walking his dog. Occasionally, for no known reason, his symptoms

become aggravated for longer periods of time. He has decided that when one of those

episodes becomes unbearable, he will schedule surgery. Until that time, he plans to avoid

the significant disruption to his life and work of surgery, recovery, and rehabilitation by

taking NSAID medication and modifying or restricting his activities. Ex. 11 at 2.

Despite such contentions, however, it is facially evident that this is a non-surgical

case involving a very limited treatment course. There is no way around that fact.

Petitioner’s entire treatment course consisted of three orthopedic visits, one x-ray, and

one MRI. In addition, there were at least two substantial treatment gaps and a lack of any

further treatment after August 2021. While I credit the surgery recommendation as some

evidence of severity (and factor that into my pain and suffering determination), the

substantial gaps in treatment warrant greater weight. A case in which surgery is proposed,

but never occurs – and where the claimant otherwise has limited treatment – is simply not

a matter where an even moderately-high pain and suffering award is merited.

9

In fact, the lack of surgery stands out given Petitioner’s medical history. That

history reveals several involved orthopedic issues, including a hernia repair, two hip

replacements, and back surgery (C7 discectomy and fusion). Ex.2 at 8, Ex. 4 at 21, and

Ex. 5 at 71. Mr. Turnquest is no stranger to the different types of treatments available to

treat orthopedic injuries. If Petitioner’s orthopedic surgeon only offered surgery as option,

Petitioner was free to seek a second opinion or request other treatment such as steroid

injections, physical therapy, or medication – or simply to have undergone the surgery as

recommended. He did not, however, and there is no indication in the record that Mr.

Turnquest availed himself to any other types of treatment. Furthermore, Petitioner has

not sought any treatment for his shoulder since August of 2021.

The claimants in Petitioner’s proposed comparable cases all received more

treatment than Mr. Turnquest. I therefore find that the figures proposed in those cases

are too high. Respondent did not cite to a comparable case in his brief, but did later

provide a citation to Valdez7 just prior to hearing. While that petitioner still received more

treatment than Mr. Turnquest, I do find that this case is the best comparable of all the

cases cited by the parties.

In sum, Petitioner’s SIRVA injury was exceedingly mild. This very limited nature of

his treatment, and the treatment gaps are difficult to ignore, and indicates that the injury

was not so severe that Mr. Turnquest felt the need to seek out other treatment options

besides surgery. Thus, considering all the aforementioned issues leads me to steeply

discount the amount requested by Petitioner.

I do credit Petitioner’s argument about the delay in seeking treatment due to the

Covid 19 pandemic. Such a delay in seeking non-life threating care was reasonable given

the situation in 2020. I also credit Petitioner’s argument that his MRI showed significant

findings and that surgery was the primary treatment offered. For this reason, I will increase

the amount offered by Respondent, as the $20,000.00 figure is too low and not well

defended by Respondent or supported by the case law.

Under such circumstances, and considering the arguments presented by both

parties, a review of the cited cases, and based on the record as a whole, I find that

$30,000.00 in compensation for Mr. Turnquest’s pain and suffering, is reasonable and

appropriate in a non-surgery SIRVA case like the present.

7

Valdez v. Sec’y of Health & Human Servs., No. 21-394V, 2023 WL 1526536 (Fed. Cl. Spec. Mstr. Feb.

28, 2024).

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F. Conclusion

In light of all of the above, the I award a lump sum payment of $30,000.00, (for

actual pain and suffering) in the form of a check payable to Petitioner. This amount

represents compensation for all damages that would be available under Section 15(a) of

the Vaccine Act. Id.

This amount represents compensation for all damages that would be available

under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance

with this Decision.8

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

8

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.

11