The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1938V
HOLLY F. KAHLER, Chief Special Master Corcoran
Petitioner, Filed: March 27, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jessica Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1
On December 20, 2019, Holly F. Kahler 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 related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on October
4, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $70,000.00 for Petitioner’s actual pain and suffering, plus $438.90 for
past unreimbursed expenses, for a total of $70,438.90.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (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
Shortly after the claim’s initiation, Petitioner filed medical records and a statement
of completion. ECF Nos. 6-7. On May 28, 2020, Respondent filed a status report stating
that a preliminary review of the case did not identify any missing records or issues that
required further support. ECF No. 14. While this case awaited medical review, Petitioner
submitted additional medical records. ECF No. 15.
On March 30, 2021, Respondent filed a status report stating that medical review
of the case was complete and inviting a settlement demand from Petitioner. ECF No. 24.
But they were unable to resolve the matter, and so Respondent filed his Rule 4(c) report
in defense of this case on August 29, 2022, arguing that Petitioner’s pain was not limited
to her left shoulder, and that another condition or abnormality (mononeuropathy of the
wrist) is present that could explain Petitioner’s post-vaccination condition. ECF No. 40.
Petitioner was subsequently ordered to submit additional evidence to address these
issues. ECF No. 41.
On February 9, 2023, Petitioner filed a status report stating that no additional
medical records exist and responding to Respondent’s arguments raised in his Rule 4(c)
report. ECF No. 42. Petitioner also filed a letter from her treating neurologist and
photographs in support of her claim. ECF Nos. 43-44. Petitioner thereafter filed a motion
for a ruling on the record regarding entitlement and damages on April 21, 2023.
Petitioner’s Motion for Ruling on Entitlement and Damages (“Mot.”), ECF No. 45.
Petitioner argued that she meets the Table definition of a SIRVA and requested an award
of “no less than $75,000.00 for actual pain and suffering,” and $438.90 in past
unreimbursed expenses (consisting of $245.89 in out-of-pocket expenses and $193.01 in
mileage), for a total of $75,438.90. 3 Id. at 18-22, 27, 36.
Respondent filed his response on June 1, 2023. Respondent’s Response to
Petitioner’s Motion for a Ruling on Entitlement and Damages (“Response”), ECF No. 46.
Respondent reiterated the arguments made in his Rule 4(c) report and argued that
Petitioner should be awarded $45,500.00 for pain and suffering, $245.89 for past out-of-
pocket expenses, and $68.70 for mileage, for a total of $45,814.59. Response at 12.
Petitioner filed a reply on June 8, 2023, addressing Respondent’s arguments
regarding entitlement and damages. Petitioner’s Reply to Respondent’s Response to
Petitioner’s Motion for a Ruling on Entitlement and Damages (“Reply”), ECF No. 48. Along
3 Petitioner appears to have originally inadvertently requested a total award of “$75,439.90.” See, e.g., Mot.
at 36. However, in her reply, Petitioner requests the correct amount, totaling $75,438.90 ($75,000 in pain
and suffering + $245.89 in out-of-pocket expenses + $193.01 in mileage = $75,438.90). Reply at 19.
2
with her reply, Petitioner filed medical literature. ECF No. 49. This matter is now ripe for
resolution.
II. Petitioner’s Medical History
Petitioner’s pre-vaccination medical history was non-contributory. She was
working as a school secretary at the time of the subject vaccination. See, e.g., Mot. at 6.
At age forty-one, Petitioner received a flu vaccine on October 4, 2018, in her left shoulder.
Ex. 1 at 2.
Approximately six weeks post vaccination, on November 14, 2018, Petitioner
called the facility that had administered the subject vaccination, reporting that she “[h]ad
[a] flu vaccine [on] 10/3/18 4 [sic]” and “[s]ince then, she has pain to the shot area.” Ex. 2
at 107. Petitioner described the pain as a “sharp stabbing pain” when exercising or
reaching and as a “dull ache” when typing. Id. Petitioner also noted that her pain
“radiat[es] down [the] entire left arm into [her] hand.” Id. at 108. She stated that the “[p]ain
is very isolated to the site where the vaccine was given” but “[a]t times, she feels her left
hand is weaker than usual and has tingling but not consistent.” Id. at 107. Petitioner also
reported numbness in her hands or fingers. Id.
Later that same day, Petitioner presented to the same facility where she received
the subject vaccination. Ex. 2 at 99. Petitioner reported that her left arm pain “ha[d] been
present for 1 month. Since [her] flu shot on 10/04/2018.” Id. The location of the pain was
noted as the “injection site” and was described as constant, “sharp, achy, and burning.”
Id. Petitioner also described “some weakness and radiating pain into [her left] hand.” Id.
The physician noted that Petitioner had no “previous arm problems.” Id. Upon
examination, Petitioner exhibited “[p]ain to palpation on [her] left mid-deltoid,” and full
strength and range of motion (“ROM”). Id. at 101. Petitioner was diagnosed with a left
shoulder injury, and the physician opined it “seem[ed] consistent with [SIRVA]” that
“[a]ppears to have [a] component of nerve[-]based pain.” Id. The physician prescribed
lidocaine cream and gabapentin, instructed Petitioner on a home exercise plan (“HEP”),
and referred her to physical therapy (“PT”). Id.
Petitioner obtained an initial PT evaluation on December 11, 2018. Ex. 2 at 113.
She reported her pain had been present and worsening since her October 4, 2018
vaccination. Id. She noted that her pain was interfering with reaching overhead, lifting,
and her ability to sleep – but that with ibuprofen and a heat pack she was able to
participate in self-care and activities of daily life (“ADLs”). Id. at 113-14. On examination,
4 Although Petitioner reported that she received the subject flu vaccination on October 3, 2018, I find this
was likely an error, as the date of the vaccination was one day later, on October 4, 2018.
3
Petitioner showed restricted strength and ROM and pain with palpation over the deltoid
and subdeltoid bursa. Id. at 115. The physical therapist felt that Petitioner’s symptoms
were consistent with left shoulder pain and subdeltoid bursitis and she recommended
additional PT to “improve her functional mobility.” Id. at 117. Petitioner attested that during
this visit, she was “in too much pain and discomfort to attempt any arm exercise.” Ex. 4 ¶
12.
On December 13, 2018, Petitioner presented to a sports medicine specialist
reporting ongoing left shoulder pain “following a flu shot on 10/4/18.” Ex. 2 at 122.
Petitioner also noted “radiation down the lateral and front of the arm[ w]ith sensation of
weakness” and a “tingling sensation in the fingers.” Id. The physician noted that Petitioner
did not have a history of “previous shoulder problems.” Id. Petitioner rated her pain at a
“5/10 at rest, but [stated it] can get up to a 9/10.” Id. at 130. A physical examination
revealed “abnormal” ROM, positive impingement tests, and tenderness to palpation over
the bicipital groove, inferior to the acromioclavicular (“AC”) joint, trapezius, posterior joint
line, anterior deltoid, and “lateral pecs.” Id. at 124.
Petitioner was diagnosed with left shoulder impingement syndrome and
subacromial bursitis. Ex. 2 at 125. The “underlying cause” was listed as Petitioner’s flu
shot but the physician opined Petitioner’s shoulder pain was also consistent with “nerve
irritation.” Id. Petitioner underwent “dynamic cupping” of her left shoulder and experienced
“50% improvement.” Id. Petitioner also received additional exercises for her HEP. Id.
Petitioner attested that the cupping treatment was “very painful” and “felt like [she] almost
passed out.” Ex. 4 ¶ 13. It also left severe bruising that lasted several weeks. Id.
Petitioner presented for her second and final PT session on December 17, 2018.
Ex. 2 at 130. She reported that she had seen a sports medicine specialist who “d[id] not
believe [her injury was] SIRVA, but probably a subdeltoid bursitis.” Id. Petitioner rated her
pain at a 7-8/10 at rest. Id. The physical therapist recommended additional PT (at least
six sessions) and opined that Petitioner had the “potential to achieve all discharge goals”
with rehabilitations services. Id. at 133-34. The therapist also stated that PT was
“medically necessary, reasonable, and appropriate for [Petitioner’s] diagnosis.” Id. at 134.
Petitioner attested that her physical therapist told her “there was not much else he could
offer [her],” so he recommended she speak with her doctor. Ex. 4 ¶ 14.
The next day, on December 18, 2018, Petitioner emailed her primary care
physician (“PCP”) reporting complaints of ongoing left shoulder pain “since [her] flu shot
on 10/3/18[.]” Ex. 2 at 136. Petitioner’s PCP stated that there was “[n]ot much to do about
SIRVA” because it “[h]eals on [its] own.” Id. Petitioner requested additional treatment
options and was told to use NSAIDs, ice, and heat. Id.
4
On January 17, 2019, Petitioner went to her PCP with a chief complaint of “injury
from [a] flu shot” in October 2018. Ex. 2 at 139. Petitioner stated she experienced difficulty
sleeping and was continuing her HEP. Id. Upon examination, Petitioner had positive cross
arm and Hawkins tests and pain with ROM. Id. at 140. Her PCP opined that Petitioner’s
shoulder pain “is most consistent with subacromial bursitis . . . [with the u]nderlying cause
[as her] flu shot, muscular imbalance with tightness of the scapular stabilizers and the
anterior pectoralis muscles, [and] nerve irritation.” Id. at 139. Petitioner was prescribed
cyclobenzaprine for her pain at night, ordered to obtain an MRI, and referred to an
orthopedist. Id. at 141. Petitioner subsequently scheduled the MRI but cancelled it and
did not reschedule at that time. Id. at 144.
In her affidavit, Petitioner attests that during her January 17, 2019 appointment
with her PCP, she was told that her left shoulder injury “may take up to six months or
longer . . . to recover.” Ex. 4 ¶ 17. She explained that “[t]he impression [she] received
from [her PCP] is that there is no treatment for SIRVA except that [she] would get better
with time.” Id. Petitioner felt “[t]his seemed accurate because [her] left shoulder had not
improved despite [her] cupping treatment, [PT], and prescription medicine.” Id. She also
was told by her physical therapist that “there was not much else that [PT] could provide”
and “[a]s such, it seemed unnecessary for [her] to meet doctors regularly within a span of
several weeks.” Id.
Petitioner further attests that “[o]ver the next few months, [she] continued to
perform [her HEP]” and she took ibuprofen “when the pain became unbearable[.]” Ex. 4
¶ 18. But by April 2019, Petitioner contends that she “continued to experience sharp pain
in [her] left shoulder, . . . felt weakness in [her] arm, and a tingling and numbness
sensation in [her] left hand.” Id. ¶ 19. She noted difficulties with ADLs, including with
washing her hair, driving, and sleeping. Id.
Despite Petitioner’s assertions regarding her pain in April 2019, on April 17, 2019,
Petitioner emailed her PCP’s office requesting her vaccination record from October 4,
2018, only. Ex. 2 at 146. She did not mention any left shoulder complaints or the condition
of her left shoulder in this correspondence. See id.
On August 1, 2019, approximately seven months from her last visit for left shoulder
pain (on January 17, 2019), Petitioner presented to her PCP’s office for ongoing left
shoulder pain that was “constant and severe,” worse with movement, and that “radiates
to the top of the shoulder.” Ex. 3 at 13. The physician noted Petitioner had “chronic
numbness and weakness down the arm.” Id. Upon examination, Petitioner exhibited
decreased ROM with internal rotation and tenderness to palpation but full strength. Id. at
5
15. An x-ray was normal. Id. at 22. Petitioner was diagnosed with chronic left shoulder
pain and an MRI was ordered. Id. at 15. Petitioner declined additional PT. Id.
Petitioner’s August 19, 2019 MRI of the left shoulder revealed “[m]ild supraspinatus
and subscapularis tendinosis, with bursal sided fraying of the supraspinatus tendon and
a probable small partial thickness tear of the cranial fibers of the subscapularis tendon”
and mild subacromial/subdeltoid bursitis. Ex. 3 at 23-24.
On August 23, 2019, Petitioner saw an orthopedist, reporting that her symptoms
had been ongoing “since 10/2018” and “began with a flu shot.” Ex. 6 at 1. An examination
revealed “pain down the upper extremity . . . diffuse tenderness to palpation throughout
the shoulder,” a positive Neer’s test, and “pain and some giving away with supraspinatus
testing.” Id. at 2. The orthopedist reviewed Petitioner’s MRI and opined that Petitioner did
“have some mechanical findings on her exam consistent with cuff impingement,” but
noted that post-vaccination pain “would be inconsistent with . . . impingement.” Id. at 3.
He noted potential treatment with a shoulder arthroscopy and subacromial
decompression and debridement. Id. The orthopedist also noted he was not familiar with
SIRVA and referred Petitioner to a physiatrist. Id.
Between October 16, 2019, and January 29, 2020, Petitioner went to her
dermatologist and PCP for skin concerns and a sinus infection, respectively, but did not
mention left shoulder complaints or receive treatment for left shoulder issues at either of
these visits. Ex. 5 at 11-16; Ex. 8 at 7-18.
Petitioner had her annual physical with a new PCP on February 11, 2020. Ex. 8 at
25. Petitioner reported at this time that she “had a vaccine injury after her flu shot in the
left shoulder, the vaccine was October 2018. She was diagnosed with SIRVA.” Id. Despite
PT and gabapentin, “she has continued numbness and tingling in her hand[.]” Id.
Petitioner’s diagnoses included chronic left shoulder pain and her PCP noted that she
“continued to have a lot of neurologic symptoms into the left hand.” Id. at 30. No other
treatment was recommended for these symptoms. See id.
Throughout the following months (including in February and May 2020), Petitioner
regularly saw her podiatrist, gynecologist, and dermatologist for unrelated conditions.
See, e.g., Ex. 8 at 34-77, 84-85. Petitioner did not mention left shoulder symptoms during
her visits to specialists during this time. See id.
Petitioner emailed her PCP on June 29, 2020, reporting ongoing shoulder pain.
Ex. 9 at 5-6. Specifically, Petitioner noted that she had toe surgery on May 19, 2020, and
that her use of crutches had “caused [her] shoulder to be in a lot of pain.” Id. Petitioner
6
also noted ongoing difficulties sleeping. Id. At Petitioner’s request, her PCP referred her
to a neurologist/nerve specialist. Id.
Approximately one month later, on July 31, 2020, Petitioner had a tele-health visit
with a neurologist. Ex. 9 at 25. Petitioner complained of ongoing left shoulder pain since
her flu shot in October 2018. Id. She stated that she felt radiating pain in the upper arm
“instantly” and “in the next 24 hours, [it] felt like her whole arm was in pain. Hand started
throbbing.” Id. Petitioner reported that she “[n]ow [] has chronic pain every day [and] . . .
numbness and weakness when she wakes up[.]” Id. Petitioner specified the pain is
“localized in her shoulder, but [is] also radiating [] down her arm.” Id. at 24. She also
reported tingling and weakness in both arms. Id. at 25. Following a physical examination,5
showing, in relevant part, Petitioner was able to lift both arms above her head, the
neurologist opined that “[a]lthough [Petitioner had] SIRVA symptoms due to inflammation
at the joint, her description of radiating pain and weakness in her left hand raise[d]
suspicion for peripheral mononeuropathy, less likely plexopathy.” Id. at 24, 28.
Petitioner underwent an EMG on January 11, 2021. Ex. 10 at 13-15. The EMG
revealed evidence for mild median mononeuropathy at the left wrist. Id. (emphasis
added). While the EMG showed mononeuropathy, Petitioner’s neurologist did “not
suspect that [this condition] was the cause of [Petitioner’s] left shoulder pain.” Id. at 15.
No additional medical records have been filed.
Petitioner submitted a brief, three paragraph letter from her neurologist on
February 14, 2023. Ex. 16. The neurologist noted that she saw Petitioner on July 31,
2020, and January 11, 2021 (for the EMG), only. Id. at 2. The neurologist wrote that
Petitioner’s EMG showed a “mild left median mononeuropathy at the wrist (carpal tunnel
syndrome) and there was no evidence of a brachial plexopathy.” Id. In light of these
findings, the neurologist stated she “would not expect a vaccination in the shoulder to
cause a compressive neuropathy in the wrist.” Id. The neurologist continued that such
findings “do not refute or confirm SRIVA [sic], which is not a neurological disease.” Id.
Petitioner’s affidavit, authored on October 21, 2019, describes the limitations with
ADLs she experienced. For example, in her position as a secretary at a school, she can
no longer deliver supplies to other secretaries like she typically would pre vaccination. Ex.
4 ¶ 22. She also explained that can no longer pack snacks and carry coolers to her
children’s sports tournaments and that her children now help her with yard work. Id. ¶ 23.
5 This examination appears to have been a modified examination, as it was performed during a tele-health
visit.
7
Further, Petitioner had to change the way she walks her dog, and she cannot enjoy her
pre-vaccination hobby of making earrings. Id. ¶¶ 24-25.
III. Legal Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement, 6 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).
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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;
6
In summary, a petitioner must establish that she 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 her injury for more than six months, died from her 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).
8
(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).
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
9
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (holding that it is within the special master’s discretion to determine whether to
afford greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational).
IV. Factual Findings and Ruling on Entitlement
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Petitioner Has No Prior Left Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise. I
therefore find Petitioner has satisfied this Table criterion.
2. Onset of Petitioner’s Injury Occurred within 48 Hours of her
Vaccination
The second requirement for a Table SIRVA is that the onset of shoulder pain began
within 48 hours of the subject vaccination. 42 C.F.R. § 100.3(c)(10)(ii). Respondent has
not disputed, nor does the record refute, that Petitioner meets this criterion. I find
Petitioner has thus met this criterion.
3. Petitioner’s Pain was Limited to her Left Shoulder
10
The third QAI requirement for a Table SIRVA requires a petitioner’s pain and
reduced range of motion to be “limited to the shoulder in which the intramuscular vaccine
was administered.” 42 C.F.R. § 100.3(c)(10)(iii).
Respondent contests Petitioner’s satisfaction of this element. Response at 10. In
particular, he argues that Petitioner “consistently reported additional symptoms in her
hand and down her arm throughout the course of treatment.” Id. (citing Ex. 2 at 99, 107-
08 (the November 14, 2018 phone call/visit and report to Petitioner’s PCP stating that
although her pain was “very isolated” to her shoulder, it radiated down her arm with
tingling and weakness in the hand)). Respondent further noted that throughout
Petitioner’s treatment course, in addition to her reports of left shoulder pain, she
continuously reported tingling, numbness, and weakness in the left arm, and throbbing in
her left hand. See, e.g., id. (citing Ex. 2 at 122; Ex. 3 at 13; Ex. 8 at 25; Ex. 9 at 25).
But I find that there is a preponderance of evidence that Petitioner’s pain was
limited to her left shoulder. First, Petitioner’s records consistently report left shoulder pain
and loss of ROM, which are consistent with other SIRVA cases. Petitioner’s diagnostic
procedures were also limited to her left shoulder, and she received treatment for left
shoulder pain. See, e.g., Ex. 2 at 99, 101, 107, 113, 117, 122-24, 130, 139-41; Ex. 3 at
23-24; Ex. 6 at 1-2; Ex. 9 at 25; Ex. 10 at 13-15.
Second, although there are references to pain radiating down Petitioner’s left arm
in some records, the majority of other records support a finding that Petitioner’s pain was
limited to her left shoulder and, more so, originated from the shoulder. See, e.g., Ex. 2 at
107 (a November 14, 2018 note stating Petitioner’s pain was “very isolated to the site
where the vaccine was given”); Ex. 9 at 24 (a July 31, 2020 note stating “pain is localized
in her shoulder, but [is] also radiating [] down her arm”). In the Program, special masters
have found that claims involving musculoskeletal pain primarily occurring in the shoulder
are valid under the Table even if there are additional allegations of pain extending to
adjacent parts of the body. K.P. v. Sec’y of Health & Hum. Servs., No. 19-65V, 2022 WL
3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022) (holding that “claims involving
musculoskeletal pain primarily occurring in the shoulder are valid under the Table even if
there are additional allegations of pain extending to adjacent parts of the body”).
Indeed, the gravamen of the third QAI criterion is intended to “guard against
compensating claims involving patterns of pain or reduced [ROM] indicative of a
contributing etiology beyond the confines of a musculoskeletal injury to the affected
shoulder.” Grossmann v. Sec’y of Health & Hum. Servs., No. 18-0013V, 2022 WL 779666,
at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022); Werning v. Sec’y of Health & Hum. Servs.,
No. 18-0267V, 2020 WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that
a petitioner satisfied the third SIRVA QAI criterion where there was a complaint of
radiating pain, but the petitioner was “diagnosed and treated solely for pain and limited
11
range of motion to her right shoulder”); Cross v. Sec’y of Health & Hum. Servs., No. 19-
1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr. Jan. 6, 2023) (finding that “despite
the notations of pain extending beyond the shoulder, Petitioner’s injury is consistent with
the definition of SIRVA and there is not preponderant evidence of another etiology”).
Here, Petitioner in some isolated circumstances reported instances of pain
extending beyond the shoulder, but her injury was otherwise consistent with SIRVA. See
Durham v. Sec’y of Health & Hum. Servs., No. 17-1899V, 2023 WL 3196229, at *11-13
(Fed. Cl. Spec. Mstr. Apr. 7, 2023) (finding "this is not a case where the medical records
reflect that the symptoms beyond the confines of the shoulder are incidental to what was
otherwise clearly treated as a shoulder injury," as the petitioner showed prominent
symptoms of radiculopathy/numbness into the hand and neck, there ultimately was not
any confirmed final diagnosis of a shoulder joint pathology, and a cervical etiology was
deemed more likely by physicians). The evidence supporting a SIRVA can be
distinguished from other incidental complaints of pain and neurological symptoms
stemming from the shoulder into the wrist and hand (that ultimately received a separate
diagnosis) – and those complaints can also be disregarded in determining damages.
Petitioner has therefore established this QAI criterion.
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv).
Respondent contends that Petitioner cannot meet this criterion because her EMG
revealed mild median mononeuropathy of the left wrist. Response at 11 (citing Ex. 10 at
15). Further, Petitioner’s neurologist felt that her complaints of radiating pain and hand
weakness raised suspicion for a mononeuropathy, not SIRVA. See id. (citing Ex. 9 at 24).
More so, Respondent relies on Petitioner’s treaters concerns of nerve-based irritation to
argue that she cannot meet this criterion. Id. (citing Ex. 2 at 101, 125; Ex. 8 at 30).
Respondent’s argument, however, is at odds with his concession that Petitioner
did not have a pre-vaccination history of left shoulder pain or injury. In fact, Petitioner’s
contemporaneous medical records state that Petitioner had no prior history of left
shoulder complaints. See, e.g., Ex. 2 at 99 (a November 14, 2018 note stating Petitioner
had “no previous arm problems”); Ex. 2 at 122 (a December 13, 2018 note stating no
history of “previous shoulder problems”).
12
Additionally, Respondent has failed to show that Petitioner’s previously-
asymptomatic mononeuropathy of the left wrist (not left shoulder) otherwise explains her
post-vaccination condition to the exclusion of a SIRVA. Grossman, 2022 WL 779666, at
*18; Lang v. Sec’y of Health & Hum. Servs., No. 17-995V, 2020 WL 7873272, at *13 (Fed.
Cl. Spec. Mstr. Dec. 11, 2020) (explaining that “findings consistent with impingement,
rotator cuff tears, or AC arthritis do not per se preclude a finding that a Table SIRVA
exists. Rather, the question raised by [R]espondent’s argument is whether [a] petitioner’s
own clinical history indicates that her shoulder pathology wholly explains her symptoms
independent of vaccination”). Indeed, Petitioner’s treaters explicitly stated that her
mononeuropathy at the left wrist was not responsible for her left shoulder pain. See Ex.
10 at 15.
Petitioner’s clinical course is therefore consistent with onset of a SIRVA, more so
than with any eventual manifestation of the chronic conditions apparent on diagnostic
imaging, which were not specific to the left shoulder.
B. Severity
While Petitioner has satisfied her burden under the QAI for a Table SIRVA, she
also must demonstrate that she suffered “residual effects or complications of [the injury
alleged] for more than six months after the administration of the vaccine,” as required for
eligibility under the Vaccine Program. Section 11(c)(1)(D)(i).
Because Petitioner received the flu vaccine on October 4, 2018, with immediate
onset around that time, she must demonstrate by preponderant evidence that her residual
symptoms continued for more than six months thereafter. See, e.g., Herren v. Sec'y of
Health & Hum. Servs., No. 13-100V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July
18, 2014); see also Hinnefeld v. Sec'y of Health & Hum. Servs., No. 11-328V, 2012 WL
1608839, at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical
history revealed that petitioner's Guillain-Barré syndrome resolved less than two months
after onset).
Respondent does not dispute that Petitioner has satisfied the six-month severity
requirement, and the record does not show otherwise. Thus, after consideration of the
entire record, the evidence supports a finding that severity has been met. (Certainly,
however, gaps in treatment underscore the extent to which this is a mild SIRVA that did
not require surgery – and damages will take this into account).
C. Other Requirements for Entitlement
13
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in her left
shoulder on October 4, 2018, in Marysville, Washington. Ex. 4 ¶¶ 2-3; see Section
11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring
administration within the United States or its territories). There is no evidence that
Petitioner has collected a civil award for her injury. Ex. 4 ¶ 26; Section 11(c)(1)(E) (lack
of prior civil award). As stated above, I have found that the onset of Petitioner’s left
shoulder pain was within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting
forth this requirement). This finding also satisfies the requirement that Petitioner’s first
symptom or manifestation of onset occur within the time frame listed on the Vaccine Injury
Table. 42 C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA
following receipt of the influenza vaccine). Therefore, Petitioner has satisfied all
requirements for a Table SIRVA. Additionally, as determined above, Petitioner has
established the six-month severity requirement. See Section 11(c)(1)(D)(i) (statutory six-
month requirement).
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
V. Damages
The parties have also briefed damages in this case, and the only components at
issue are past pain and suffering, out-of-pocket expenses, and treatment-associated
mileage. Petitioner requests no less than $75,000.00 for actual pain and suffering and
$438.90 in unreimbursed expenses (including $245.89 in out-of-pocket expenses and
$193.01 in mileage), for a total of $75,438.90. Mot. at 36. Respondent proposes
$45,500.00 for pain and suffering and $314.59 in unreimbursed expenses (including
$245.89 for out-of-pocket expenses, but the lesser amount of $68.70 for mileage), for a
total of $45,814.59. Response at 12.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
14
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
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 & Hum. 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
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering. 7
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of the injury to be considered in making a pain and suffering award. In
determining appropriate compensation for pain and suffering, I have carefully reviewed
and taken into account the complete record in this case, including all medical records,
affidavits, plus all filings submitted by both Petitioner and Respondent. I have also
considered prior awards for pain and suffering in both SPU and non-SPU SIRVA cases
and relied upon my experience adjudicating these cases. However, my determination is
ultimately based upon the specific circumstances of this case.
Citing four prior damages determinations (Sherbine, Edens, Niemi, Lucchesi), 8
Petitioner requests no less than $75,000.00 for actual pain and suffering. Mot. at 36. She
asserts that the severity of her injury is comparable to, and in the “upper range” for, the
awards from the aforementioned SIRVA cases. Id. at 30-35. In particular, Petitioner
emphasizes that she underwent two formal PT sessions plus at-home exercises; received
7
I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. 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
Sherbine v. Sec’y of Health & Hum. Servs., No. 17-413V, 2020 WL 1933136, at *1 (Fed. Cl. Spec. Mstr.
Mar. 27, 2020) (awarding $70,000.00 for actual pain and suffering); Edens v. Sec’y of Health & Hum. Servs.,
No. 19-1110V, 2021 WL 2182720, at *1 (Fed. Cl. Spec. Mstr. Apr. 26, 2021) (awarding $70,000.00 for
actual pain and suffering); Niemi v. Sec’y of Health & Hum. Servs., No. 19-1535V, 2022 WL 3135258, at *1
(Fed. Cl. Spec. Mstr. July 5, 2022) (awarding $75,000.00 for actual pain and suffering); Lucchesi v. Sec’y
of Health & Hum. Servs., No. 19-943V, 2021 WL 5119145, at *1 (Fed. Cl. Spec. Mstr. Oct. 4, 2021)
(awarding $75,000.00 for actual pain and suffering).
15
prescription gabapentin, cyclobenzaprine, and lidocaine cream; obtained several
diagnostic procedures (including an x-ray, MRI – requiring a sedative due to Petitioner’s
claustrophobia, and EMG) and cupping treatment; and endured numerous visits to
multiple medical providers, with surgery as the last recommended treatment option. Id. at
28-29 (citing Ex. 2 at 99, 107-08, 113, 122, 136; Ex. 6 at 1; Ex. 8 at 25; Ex. 9 at 25). She
notes that her shoulder pain began within 48 hours of her vaccination and argues that it
lasted for more than two years. Id. at 29. Specifically, relying on contemporaneous
medical records, Petitioner contends that on July 31, 2020, she had “chronic pain” that
was negatively impacting her sleep. Id. (citing Ex. 9 at 25). Petitioner further argues that
her symptoms persisted through her January 11, 2021 EMG, (more than two years and
three months post vaccination). Reply at 15 (citing Ex. 10 at 14-15). She also relies on
her colleague’s witness declaration, which states that Petitioner “was in pain for well over
two years.” Id. at 17 (citing Ex. 15 at 1).
Respondent, by contrast, submits that an award of no more than $45,500.00 is
appropriate for pain and suffering. Response at 14. 9 Respondent argues that Petitioner
experienced “approximately nine months of mild shoulder discomfort following
vaccination.” Id. He continues, Petitioner required “conservative treatment” and her
symptoms have resolved. Id. at 16. More so, “there were large gaps in [P]etitioner seeking
care for her shoulder although she actively sought care for other symptoms.” Id. at 15.
Respondent asserts, for instance, that between Petitioner’s January 19 and August 1,
2019 visits, she sought no treatment for her left shoulder pain – despite being referred to
an orthopedist and sent for an MRI in January 2019. Id. at 14 (citing Ex. 2 at 141; Ex. 3
at 13). And, from August 2019 to February 11, 2020, Petitioner’s medical records likewise
do not contain complaints of left shoulder pain. Id. at 14-15 (citing Ex. 8 at 25-30).
Respondent notes Petitioner only returned to care in June 2020 after her use of crutches
caused shoulder pain. Id. at 15 (citing Ex. 9 at 5-6). Thereafter, the records reflect an
additional six-month treatment gap from July 2020 to January 2021. Id. (citing Ex. 9 at 25;
Ex. 10 at 13-15). Respondent cites to one case (Piccolotti) 10 in support of his argument
regarding an appropriate pain and suffering award. Id. at 16.
The filed record in this case establishes that Petitioner suffered a moderate SIRVA,
with fairly significant pain upon onset but conservative treatment thereafter. Particularly
relevant is evidence demonstrating Petitioner’s report of vaccine-related pain within 41
9 Respondent argues that Petitioner is not entitled to compensation in this case but contends no more than
$45,500.00 is just and fair compensation for pain and suffering if the Court finds that Petitioner satisfies the
legal prerequisites of entitlement.
10 Piccolotti v. Sec’y of Health & Hum. Servs., No. 20-135V, 2023 WL 3165383, at *5 (Fed. Cl. Spec. Mstr.
Mar. 31, 2023) (awarding $45,000.00 for pain and suffering).
16
days of her vaccination, subsequent treatment with prescription medications, an x-ray,
MRI (showing mild supraspinatus and subscapularis tendinosis, with bursal sided fraying
of the supraspinatus tendon and a probable small partial thickness tear of the cranial
fibers of the subscapularis tendon, and mild subacromial/subdeltoid bursitis), and EMG,
participation in two PT sessions, a HEP, and cupping treatment. Additionally, Petitioner’s
medical records contain descriptions of her pain on a ten-point scale at her post-
vaccination visits fairly close in time to the onset of her injury. In such records, Petitioner
rated her pain at a 5/10 at rest but a 9/10 at worst with movement. Ex. 2 at 130 (from
December 13, 2018). That same month, Petitioner rated her pain ranging from a 7-8/10.
See id. (from December 17, 2018). While Petitioner’s medical records do not contain
similar descriptions of pain on a ten-point scale throughout her later treatment course,
these earlier notations indeed support a moderately severe SIRVA within the first months
of onset.
Additionally, Petitioner suffered from reduced ROM that was demonstrated on
examination soon after her vaccination. While Petitioner did not exhibit reduced ROM
during her first post-vaccination visit on November 14, 2018, Petitioner’s physical
examination revealed decreased ROM upon her second visit one month later, on
December 11, 2018, and consistently thereafter. See, e.g., Ex. 2 at 115 (a December 11,
2018 examination revealing decreased ROM); Ex. 2 at 124 (a December 13, 2018
examination showing “abnormal” ROM); Ex. 3 at 15 (an August 1, 2019 examination
wherein Petitioner exhibited decreased ROM with internal rotation but normal ROM in all
other directions). The medical records thus show that Petitioner’s limitations in ROM
continued to an extent and there is evidence in the medical records that her restricted
ROM was ongoing through at least August 2019.
Further, the record supports by preponderant evidence that Petitioner’s treatment
course and ongoing symptoms continued through February 2020 at the latest, or for
approximately sixteen months. This is so even though Respondent correctly observes
that Petitioner’s medical records contain numerous gaps in treatment. Thus, following
Petitioner’s August 23, 2019 appointment, surgery was recommended as the next viable
treatment option. Ex. 6 at 1-3. However, Petitioner did not return to treatment or complain
of shoulder-related symptoms until six months later, on February 11, 2020, during a
routine physical. Ex. 8 at 25-30. Petitioner’s decision to forego care for six months
following her August 2019 visit could be evidence that her injury had resolved – or at least
did not require additional treatment and/or was manageable with at-home remedies. Still,
Petitioner’s complaints of ongoing symptoms of numbness and tingling in the left arm in
February of 2020 provides minimal evidence that her injury (or sequelae thereof) was
ongoing to some degree during this gap in treatment and up until her February 11, 2020
visit.
17
Subsequent treatment records, however, suggest Petitioner’s injury did not persist
much past February 2020, if at all. Although Petitioner alleges in her affidavit that her pain
has continued for more than two years, the record shows that following her February 2020
visit (wherein no further treatment for her shoulder symptoms was prescribed), Petitioner
again did not seek care for her left shoulder symptoms for another four months – until
June 2020. Ex. 4; Ex. 9 at 5-6. And when Petitioner returned to care on June 29, 2020,
she did so after she reportedly had been using crutches since May 2020, and the crutches
admittedly “caused [her] shoulder to be in a lot of pain.” Ex. 9 at 5-6. Petitioner’s ability to
use crutches by May 2020 signifies that her shoulder injury was manageable and not
causing her significant pain by that time. The medical records thus support that any
resurgence of left shoulder pain after Petitioner’s February 2020 visit was likely caused
and/or exacerbated by Petitioner’s use of crutches. It thus appears more likely than not
that Petitioner’s left vaccine-related shoulder injury resolved sometime between February
and May 2020.
Additionally, I must note that Petitioner’s affidavit is inconsistent with her medical
records in some respects. For example, Petitioner has contended that in April 2019,
during the first, fairly lengthy gap in treatment apparent in Petitioner’s medical records
(from January to August 2019), her pain was “sharp” and was interfering with her ability
to drive, wash her hair, and sleep. Ex. 4 ¶ 19. But medical records from April 2019 are
silent regarding complaints of left shoulder pain – despite Petitioner contacting her PCP
requesting manufacturer’s information related to the subject vaccination. Ex. 2 at 146. It
seems likely that if Petitioner was experiencing pain and limitations in ADLs to the extent
she contends in her affidavit, she would have mentioned such ongoing symptoms to her
treaters. While I do not find this inconsistency to detract from my finding regarding
Petitioner’s overall injury, it slightly minimizes the weight afforded to the assertions made
in Petitioner’s affidavit and underscores the mildness of Petitioner’s injury.
Otherwise, while I credit Petitioner’s assertions in her affidavit that she has
continued to experience residual symptoms of her SIRVA, including pain and limited
ROM, her overall recovery has been fairly good overall – a fact supported by her lack of
continued formal treatment contained in the medical records. Indeed, Petitioner’s
assertions in her affidavit highlight that her lingering symptoms, although present, were
manageable with conservative treatment without requiring her return to further formal
treatment. I thus find the duration of Petitioner’s SIRVA was approximately sixteen
months.
The severity and duration of Petitioner’s pain, although significant (at times) and
fairly lengthy, is offset by the numerous temporal gaps in her treatment. When medical
records filed for petitioners in the Program reveal comparable gaps, I weigh the reason
18
for the gaps against evidence of a petitioner’s purported pain. Here, Petitioner’s
explanation for (at least one) gap in treatment is that her treaters told her there was
nothing more they could do for her SIRVA. Ex. 4 ¶ 17 (discussing her January 17, 2019
visit and subsequent gap in treatment until August 2019). Petitioner’s recollection and
understanding of her January 17, 2019 visit is wholly inconsistent with the medical records
from this visit – as Petitioner’s treater prescribed medication, ordered an MRI (which
Petitioner later cancelled), and referred her to an orthopedist at the conclusion of said
visit. Ex. 2 at 144. More so, while Petitioner contends her physical therapist corroborated
her understanding that she would not benefit from further treatment, Petitioner’s therapist
actually recommended additional treatment, but Petitioner did not return after two
sessions. Id. at 134. I do acknowledge that at least one of Petitioner’s treaters told her
that a SIRVA “[h]eals on [its] own.” Ex. 2 at 136 (a December 18, 2018 visit with
Petitioner’s PCP). However, the timing of this statement does not coincide with any of the
gaps in Petitioner’s treatment. Accordingly, Petitioner’s explanation for the gaps in
treatment in her medical records is not wholly persuasive. Instead, the decision to forego
treatment heavily underscores the mildness of the injury, since it could be endured without
medical assistance for periods of time.
The overall severity and duration of the injury at issue herein is distinguishable
from Respondent’s cited case. In Piccolotti, a petitioner waited five months before seeking
care, he did not attend formal PT, and, while he treated for four years, his treatment was
offset by a substantial two-year treatment gap, thus warranting a lower pain and suffering
award. 2023 WL 3165383, at *5-6. While Piccolotti is factually similar to Petitioner’s
circumstances in many respects (given the gap in treatment), the severity and duration of
Petitioner’s injury merits a slightly higher award than that case. Petitioner sought care
within 41 days of vaccination, she attended PT (albeit only two sessions), participated in
a HEP, underwent cupping therapy, none of her gaps in treatment lasted a year or more,
and she has proven ongoing symptomology sixteen months post vaccination. An
appropriate pain and suffering award for Petitioner is thus more than what was awarded
in Piccolotti.
The cases relied upon by Petitioner are, by contrast, more instructive – but the
severity of Petitioner’s injury does not quite warrant the $75,000.00 sum requested by
Petitioner. For instance, Petitioner and the petitioner in Sherbine experienced moderate
and severe pain levels, and both petitioners experienced decreased ROM. See 2020 WL
1933136, at *1-4, 11. However, the Sherbine petitioner received slightly more treatment
than Petitioner – one cortisone injection and four sessions of PT – approximately double
Petitioner’s two PT sessions. See id. Still, the Sherbine petitioner waited longer to seek
treatment and treated for a total of eight months (approximately half of Petitioner’s
19
documented sixteen months of treatment). Thus, Petitioner should be awarded no more
than the $70,000.00 awarded in Sherbine.
Similarly, Petitioner should be awarded no more than the $70,000.00 awarded to
the Edens petitioner. The Edens petitioner sought treatment within six days of
vaccination, received prescription pain medication, four cortisone injections, participated
in a HEP, and treated for more than twenty-seven months (with large gaps in treatment).
2020 WL 8457671, at *5-7. While the Edens petitioner received four cortisone injections,
she did not treat with formal PT whatsoever and, at most, Edens rated her pain at a 4/10.
See id. Comparably, Petitioner declined a cortisone injection but attended PT, and she
seemed to experience greater pain, as she rated her pain at a 9/10 at most. And, while
Edens indeed received repeat cortisone injections, Petitioner underwent cupping therapy.
Such facts, when weighed in each case, thus cancel each other out. The cases are similar
in that they each contain gaps in treatment throughout otherwise fairly lengthy treatment
courses. For these reasons, I find Petitioner thus should be awarded no more than the
petitioner in Edens.
While Petitioner’s case shares factual characteristics to the petitioner in Niemi (in
that they each presented within forty and forty-eight days of vaccination – respectively,
experienced moderate to severe pain, and treated for more than one year), Niemi is also
distinguishable because that petitioner received objectively more treatment than
Petitioner. See 2022 WL 3135258, at *5. Niemi received three cortisone injections and
treated with twenty-two PT sessions. See id. Likewise, the petitioner in Lucchesi received
comparatively more treatment than Petitioner, evidenced by two cortisone injections,
seven PT sessions, and a barbotage procedure resulting in documented continued pain.
2021 WL 5119145, at *1-3. Petitioner should thus be awarded slightly less than the
$75,000.00 awarded to the Niemi and Lucchesi petitioners.
As noted above, I have concluded that Petitioner suffered a moderately severe
injury, which required limited and conservative treatment but persisted over a longer
period of time with lingering symptoms. Based on review of the case evidence and in my
experience, I find that $70,000.00 is an appropriate award for Petitioner’s actual pain and
suffering.
C. Appropriate Compensation for Past Unreimbursed Expenses
i. Out-of-Pocket Expenses
Petitioner requests $245.89 in out-of-pocket expenses. Respondent does not
dispute the requested amount. I therefore find $245.89 to be a reasonable award for
20
Petitioner’s past out-of-pocket expenses and award Petitioner the requested amount in
full.
ii. Mileage
Applying the IRS business rate, 11 Petitioner requests $193.01 in medical mileage.
Mot. at 35; Ex. 18. Alternatively, Respondent contends that the IRS medical mileage
rate 12 ought to apply, and Petitioner should be awarded $68.70 in mileage. Response at
17. Nonetheless, Respondent does not dispute any of the visits for which Petitioner is
seeking mileage reimbursement. See id.
In support of her position, Petitioner cites my recent decision in Gibson, which
relied on the rationale from several cases from the late 1990s, showing other special
masters have determined the IRS business rate is appropriate to use in vaccine cases
when calculating travel expenses. Reply at 19 (citing Gibson v. Sec’y of Health & Hum.
Servs., No. 20-243V, 2022 WL 17820891, at *12 (Fed. Cl. Spec. Mstr. Oct. 5, 2022);
Williams v. Sec’y of Health & Hum. Servs., No. 99-2239V, 1996 WL 608455 (Fed. Cl.
Spec. Mstr. Oct. 10, 1996); Ashe-Robinson v. Sec’y of Health & Hum. Servs., No. 94-
1096V, 1997 WL 54350 (Fed. Cl. Spec. Mstr. Jan. 23, 1997)). As the Williams special
master explained, the greater business mileage rate “is intended to cover all costs of
driving a car,” not only the cost of gasoline and oil. See 1996 WL 608455, at *2. Thus, it
includes the fixed costs of driving a car, including depreciation, maintenance, insurance,
and repairs. Id.; see also Ashe-Robinson, 1997 WL 54350, at *2-3 (reimbursing the
petitioner for the full cost of operating her personal vehicle using the greater IRS business
rate but only actual costs for meals and gasoline when transported in another individual’s
car).
Respondent has not offered persuasive authority or legal citation supporting
application of the lower IRS medical mileage rate in the Program context. Rather,
Respondent merely highlights that the Internal Revenue Code differentiates between
medical/dental expenses and business expenses. Response at 17, n.6. Respondent also
has not shown that any other federal compensatory statutory frameworks apply the lower
medical rate and/or follow the Code’s differentiation of rates.
I have recently addressed this distinction, observing that “damages paid to
claimants who have met the legal standard of proving a vaccine injury arise under the
11 The IRS business mileage rate Petitioner argues should apply is as follows: $0.545 in 2018; $0.58 in
2019; and $0.575 in 2020-2021. Ex. 18 at 2.
12 The IRS medical mileage rate Respondent argues should apply is as follows: $0.18 in 2018; $0.20 in
2019; $0.17 in 2020; and $0.16 in 2021. Response at 17.
21
specific terms of the Vaccine Act – not the Tax Code. And the Vaccine Act mandates that
a petitioner be awarded their “actual” unreimbursable expenses.” Tappendorf v. Sec’y of
Health & Hum. Servs., No. 20-1592V, 2024 WL 1299566 (Fed. Cl. Spec. Mstr. Feb. 23,
2024) (citing Section 15 (a)(1)(B)). Further, applying the logic in Williams, “each mile
driven in a vehicle increases wear and tear, thereby increasing fixed costs (i.e.,
depreciation, repairs, etc.).” Id. Thus, an award of the operating costs of the vehicle alone
“would not represent a petitioner’s “actual” expenses incurred.” See id. And while the Tax
Code may reasonably distinguish between levels of deduction for vehicle usage, based
upon whether the car was used for a business purpose or not, that same distinction “may
not be proper in the context of a Vaccine Act award.” See Walter v. Sec’y of Health &
Hum. Servs., No. 21-1461V, 2024 WL 1299576 (Fed. Cl. Spec. Mstr. Feb. 27, 2024)
(finding that “[t]his seems, to some extent, to have been the thinking of the Williams
special master[, and that a]pplication of the higher rate is ultimately consistent with the
Act’s language.”).
Accordingly, and consistent with my own prior decisions, Petitioner’s travel
expenses should be reimbursed using the IRS business mileage rate employed in
Williams, as consistently applied in the Vaccine Program. See Kleinschmidt v. Sec'y of
Health & Hum. Servs., No. 20-680V, 2023 WL 9119039, at *7 (Fed. Cl. Spec. Mstr. Dec.
5, 2023); Gibson, 2022 WL 17820891, at *12; Tappendorf, 2024 WL 1299566, at *4-5. I
will therefore award Petitioner the amount of mileage expenses she seeks, $193.01,
based upon a business mileage rate for each corresponding year, as well as the agreed
amount for out-of-pocket expenses, $245.89. I thus award the full amount Petitioner
requests for her actual past unreimbursed expenses, $438.90.
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that Petitioner’s pain was limited to her left shoulder and there is no alternate
condition that would explain Petitioner’s symptoms. Further, based on the
evidence of record, I find that Petitioner has established a Table SIRVA and is
therefore entitled to compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $70,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering, plus $438.90 for past
unreimbursed expenses, for a total of $70,438.90. 13
13
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
22
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
23