Crawford v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-0544V

EDLIN M. CRAWFORD,

Chief Special Master Corcoran

Petitioner,

v.

SECRETARY OF HEALTH AND Filed: February 5, 2024

HUMAN SERVICES,

Respondent.

William E. Cochran, Jr., Black McLaren, et al., PC, Memphis, TN, for Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1

On April 12, 2019, Edlin M. Crawford 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 alleged that as a result of an influenza (“flu”) vaccine she

received on September 4, 2017, she suffered a shoulder injury related to vaccine

administration (“SIRVA”) as defined by the Vaccine Injury Table (the “Table”). Petition

(ECF No. 1) at Preamble. The case was assigned to the Special Processing Unit (“SPU”)

of the Office of Special Masters.

1

Because this ruling and decision contains a reasoned explanation for the action in this case, I am required

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). This means this Ruling/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).

For the reasons discussed below, I find that Petitioner is entitled to compensation,

and I award damages in the amount of $105,000.00, representing compensation for her

actual pain and suffering, plus $45.57 for her unreimbursed medical expenses, for a total

of $105,045.57.

I. Relevant Procedural History

The claim was initiated in the spring of 2019, and the relevant medical records

were filed thereafter. ECF Nos. 1-13. Approximately five months later, on May 8, 2020,

Respondent filed a status report stating that he had reviewed the case and was not

interested in settlement, proposing instead to file his Rule 4(c) Report. ECF No. 17. In it,

Respondent argued that Petitioner had failed to demonstrate that her shoulder pain began

within 48 hours of vaccination, that she appeared to have developed bilateral shoulder

pain, and that Petitioner’s treating physicians identified other causes of her shoulder pain,

including osteoarthritis. Respondent’s Report at 5-7. ECF No. 18.

I ordered Petitioner to file an expert report to address Respondent’s claims. ECF

No. 20. In response, Petitioner filed an expert report prepared by board-certified

orthopedic surgeon, Dr. Uma Srikumaran, who opined that Ms. Crawford’s shoulder injury

was a result of an adverse vaccine reaction to her left shoulder. Ex. 18 at 10. After

reviewing Dr. Srikumaran’s report, Respondent stated that he intended to file a

responsive expert report. ECF No. 22.

On March 9, 2021, Respondent filed an expert report prepared by Dr. Geoffrey

Abrams, also a board-certified orthopedic surgeon. Exs. A-B. Dr. Abrams opined that the

flu vaccine was not the cause of Petitioner’s shoulder and arm pain. Instead, Dr. Abrams

opined that Ms. Crawford’s four-month delay in reporting her shoulder injury would not

meet the onset requirements for a SIRVA Table injury, that Ms. Crawford had a history of

diabetes which predisposed her to independent, non-SIRVA development of adhesive

capsulitis, and that she had additional medical conditions that would explain the

development of her shoulder pain. Ex. A at 4.

Petitioner filed a supplemental expert report from Dr. Srikumaran disagreeing that

the four-month delay in Ms. Crawford reporting her shoulder injury invalidated her SIRVA

claim. Ex. 33 at 2, ECF No. 28. Dr. Srikumaran further reiterated that Ms. Crawford’s

adhesive capsulitis was more likely due to her shoulder bursitis as a result of vaccination

rather than a spontaneous development of adhesive capsulitis due to having diabetes. Id.

Likewise, Dr. Srikumaran stated that the vaccination was a more likely trigger to the

inflammation in her shoulder rather than a spontaneous start of symptoms due to chronic

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conditions of the shoulder. Id. Dr. Abrams filed an additional supplemental reiterating his

prior opinions. Ex. C.

Thereafter, the parties elected to brief the issue of entitlement and damages. ECF

No. 36. The parties have now filed their respective briefs and this case is ready for

adjudication. Petitioner’s Motion for Ruling on the Record (“Mot.”), ECF No. 36;

Respondent’s Response (“Opp.”), ECF No. 37; Petitioner’s Reply (“Reply”), ECF No. 40.

II. Relevant Medical History

1. Medical Records

Ms. Crawford (age 71 and retired) received a flu vaccine in her left shoulder on

September 4, 2017, at a Walmart Pharmacy located in Fairfield, California. Ex. 2 at 1. Her

medical history included chronic cough, type II diabetes mellitus, primary hypertension,

gastroesophageal reflux disease, hyperlipidemia, and allergic rhinitis. See e.g., Ex. 3 at

8-11. She had no history of left shoulder pain or injury.

Ms. Crawford has stated in her affidavit that within 24 hours of vaccination, she

experienced pain in her left shoulder akin to “normal soreness with vaccination.” Ex. 1 at

1. But within two to three days after vaccination, “the pain in my left arm began getting

worse. I went back to Walmart during the first part of October to discuss the issue with

the pharmacist. The Walmart pharmacist advised me to see my doctor. There was a fire

at my house on October 14, 2017, that damaged my fence, car, and the side of my house.

I was planning to go on a cruise for about one week beginning October 21, 2017, so I

decided to make an appointment for my shoulder when I returned home. However, when

I returned home from the cruise, I had a bad cough. I sought treatment for the cough

before seeking treatment for my left shoulder… I also traveled across the country from

November 22-30, 2017, for a school reunion. Given the fire, my travels, the holidays, my

bad cough, and my belief that the shoulder pain would go away, I did not call to make an

appointment for my shoulder until December 29, 2017.” Id.

On September 18, 2017, two weeks after vaccination, Ms. Crawford presented to

her primary care provider (“PCP”) for a routine diabetes follow-up. Ex. 3 at 115-18. She

reported that she was going to the gym, using the treadmill, and lifting weights two to

three times per week. Id. at 115. She did not report shoulder pain (pain severity noted as

0/10, Id. at 115), and the review of systems was negative. Id. The exam included a

musculoskeletal evaluation, and the PCP noted that mobility was not limited. Id.

Between November 1 and December 20, 2017, Ms. Crawford presented to medical

providers on four occasions regarding a chronic, nagging cough that was ultimately

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attributed to GERD. Ex. 3 at 88-112. She did not report shoulder pain at any of these

visits. Id.

On January 2, 2018 - now three months and 29 days after vaccination - Ms.

Crawford presented to her PCP at the family health clinic at Travis Air Force base for

complaints of “left arm pain” and decreased range of motion. Ex. 3 at 80-87. The records

states that “p[atien]t correlate[d] onset [with] [an] influenza vaccine done on [the] same

side of deltoid. Denies any trauma…” Id. at 87. A physical examination revealed

tenderness to palpation over the bursa, decreased strength, and positive signs on both

the Hawkin’s and Neer shoulder impingement tests. Id. The assessment was adhesive

capsulitis of the left shoulder, and the plan was to undergo physical therapy. Id. An x-ray

showed some arthritis and degenerative changes in the shoulder joint. Ex. 3 at 54, 82.

On January 31, 2018, Ms. Crawford underwent an initial evaluation for physical

therapy (“PT”). Ex. 4 at 2. There, Ms. Crawford reported left shoulder pain and stiffness

beginning in October 2017 when she had a flu shot. Id. at 2. Between January 31, 2018,

and July 23, 2018, she attended 21 PT sessions. Ex. 4 at 2-50. At the final session on

July 23, 2018, she reported minimal shoulder pain and, on exam, had good range of

motion with continued mild weakness. Id. at 48-50. She was discharged with a home

exercise plan. Id.

Ms. Crawford continued to present for routine medical care throughout the

remainder of 2018 and into 2019 and did not report shoulder pain during this time. Ex. 3

at 65-74.

On May 29, 2019, 10 months after her last PT session (and a month after she filed

her petition for compensation), Ms. Crawford returned to her PCP for complaints of left

shoulder pain that “started [in] 2017 after receiving a vaccine.” Ex. 7 at 17. She had

regained a normal ROM, but reported frequent pain that woke her up at night. Id. Ms.

Crawford requested imaging but did not want to return to PT. Id. On exam, she had

tenderness to palpation over the entire shoulder joint/scapular area and deltoid as well

as pain at full abduction. Id. at 19. An x-ray showed mild osteoarthritis of the left

glenohumeral and acromioclavicular joints. Id. at 5. The PCP ordered an MRI. Id. at 20.

On June 11, 2019, Ms. Crawford underwent a left shoulder MRI which revealed

“moderate supraspinatus tendinosis with a moderate grade partial-thickness articular

surface tear … mild subscapularis tendinosis without a focal tear … mild biceps tendinosis

and tenosynovitis … mild to moderate osteoarthritis of the acromioclavicular joint, and

moderate amount of fluid in the subacromial subdeltoid bursa.” Ex. 5 at 1-3. Petitioner’s

PCP referred her to an orthopedist. Ex. 7 at 7.

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On July 17, 2019, Ms. Crawford presented to Dr. Nicolas Skordas, an orthopedist.

Ex. 8 at 2-4; Ex. 9 at 6-8. She reported pain and progressive stiffness in her left shoulder,

beginning in September 2017 following a flu shot. Id. She felt that her stiffness had greatly

improved, but she still had pain at night and with overhead and behind-the-body activities,

which she rated at 0-9/10. Id. On exam, Ms. Crawford had limited ROM but normal

strength. Id. An x-ray was performed of her right shoulder, due to complaints of bilateral

shoulder pain, and showed degenerative enthesopathic acromial spurring and

degenerative hypertrophic changes involving the right acromioclavicular articulation. Id.

at 3. Dr. Skordas reviewed Ms. Crawford’s MRI and diagnosed her with left shoulder

subacromial bursitis and rotator cuff tendinitis with resolving adhesive capsulitis. Id. at 6-

8. She received a steroid injection in her left shoulder and was advised to use NSAIDs

and ice/heat. Id. Dr. Skordas also referred Ms. Crawford for additional PT. Id.

Between August 13 and October 3, 2019, Ms. Crawford attended 12 PT sessions

at Body in Balance Physical Therapy for left shoulder pain that was worse in the

subdeltoid and lateral upper arm. Ex. 10. At the initial evaluation, Ms. Crawford reported

that her injury started in September 2017 “after a flu shot.” Ex. 10 at 6. At the time, she

rated her pain at 0-4/10. Ex. 10 at 6. At her final session, Ms. Crawford indicated she

planned to return to the gym and follow up with her doctor and would return if additional

PT was needed. Id. at 34.

On October 7, 2019, Ms. Crawford returned to Dr. Skordas and reported near-

complete relief of her shoulder pain for about three days after the injection in July but

stated that her pain had returned. Ex. 9 at 12-13. The physical exam was unchanged. Id.

Dr. Skordas felt that Ms. Crawford’s partial thickness rotator cuff tear was “her main

problem,” but that she also had “a component of biceps tendinitis and some

acromioclavicular joint arthrosis.” Id. He noted that Ms. Crawford would be a candidate

for surgery, which Ms. Crawford wanted to think about before deciding whether to

proceed. Id.

On October 22, 2019, Ms. Crawford returned to Dr. Skordas and reported that her

symptoms were still improved from her injection in July and that her symptoms were “only

a mild nuisance at this point.” Ex. 9 at 9-11. The exam showed unchanged limited ROM,

but normal strength and no impingement signs. Id. Ms. Crawford reported that she had

“very few limitations from the standpoint of her shoulder.” Id. The impression remained

the same and Dr. Skordas recommended conservative treatment. Id. He noted that he

could administer another steroid injection in the future and advised her to follow up as

needed. Id.

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On December 24, 2019, Ms. Crawford followed up with her PCP regarding chronic

left shoulder pain. Ex. 11 at 12-14. She reported that her surgeon had recommended

surgery, but she wanted more imaging to see if the injury had healed. Id. On exam, Ms.

Crawford had tenderness to palpation in the posterior aspect, pain at the ends of all range

of motion, although her ROM was symmetrical, and a negative Neer’s test with pain at

170 degrees. Id. at 13-14. The PCP noted that Ms. Crawford’s HbA1c was elevated at

7.0 in November 2019, and that she needed to follow up regarding her diabetes in May.

Id. If her HbA1c in May was not at 7.0 or lower, they would consider increasing her

Metformin. Id. at 14. Ms. Crawford underwent another left shoulder x-ray because she

“want[ed] to see the progress of the healing, to help her decide if she should proceed with

surgery.” Id. at 19. Compared to her previous x-ray in May 2019, the radiologist noted

stable, mild degenerative changes in the left acromioclavicular articulation and less so in

the glenohumeral articulation with no acute fracture or dislocation. Id.

On February 12, 2020, Ms. Crawford returned to Dr. Skordas to discuss surgery

and she elected to proceed. Ex. 11 at 6-7. However, on February 17, 2020, Ms. Crawford

presented to the ED for complaints of headache, fever, and body aches. Ex. 14 at 51.

She tested positive for influenza A and directed to follow up with her primary care provider.

Id. at 51-54.

On June 10, 2020, Ms. Crawford followed up with Dr. Skordas, who noted that her

shoulder surgery had been scheduled for March, but was postponed due to the Covid-19

pandemic. Ex. 14 at 39. She reported that she was still having a lot of pain, mainly in the

lateral aspect of her shoulder, worse with overhead activities. Id. Ms. Crawford wanted to

reschedule her surgery. Id.

On June 22, 2020, Ms. Crawford underwent a left shoulder arthroscopy with

debridement, subacromial decompression, distal clavicle excision, and open/subpectoral

biceps tenodesis. Ex. 14 at 12-14. The preoperative diagnosis was left shoulder

subacromial bursitis, biceps tendinitis, AC joint arthrosis, and possible rotator cuff tear.

Id. The post-operative diagnosis was identical, except that Dr. Skordas found no rotator

cuff tear during the surgery. Id. He also noted “significant bursitis within the subacromial

space.” Id. at 13. Dr. Skordas noted normal ROM during anesthesia, superior labral

fraying, biceps tenosynovitis, rotator cuff tendinitis, and grade 2/3 cartilage change of the

glenoid. Id.

On July 1, 2020, Ms. Crawford followed up with Dr. Skordas and reported that her

pain was 0/10. Ex. 14 at 10. Dr. Skordas noted that Ms. Crawford was “doing well.” Id.

Between July 15, 2020, and January 8, 2021, Ms. Crawford attended 28 post-

operative PT sessions. Ex. 31 at 4. Initially, Ms. Crawford reported that her shoulder was

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painful, achy, stiff, or bothersome only in the morning and that she was improving in terms

of her ability to reach overhead. Id. at 21-31. Beginning in mid-August 2020, Ms. Crawford

reported that she woke up without pain and with very little stiffness. Id. at 33, 38. Although

she periodically complained of pain in the morning on a couple occasions, id. at 40-42,

by September 28, 2020, Ms. Crawford reported that she was no longer having pain in the

morning like she used to. Id. at 46. However, by November 3, 2020, Ms. Crawford

reported that her shoulder had been hurting again. Id. at 61. In a November 23, 2020

progress report, Ms. Crawford reported that her shoulder was still “really tight,” had been

painful in the mornings again, and that the week prior her pain had reached 9/10. Id. at

67. But by December 15, 2020, Ms. Crawford reported that she was “not really having

any issues with the [left] arm now.” Id. at 70. She was discharged from PT on January 22,

2021, at which time she reported that she was “no longer thinking about the [left] shoulder”

and was “able to do everything without any issues.” Ex. 32 at 16.

On September 9, 2020, Ms. Crawford followed up with Dr. Skordas and reported

that she overall felt her shoulder was significantly improved from before surgery. Ex. 32

at 5. On December 16, 2020, she returned to Dr. Skordas and rated her pain 2/10. Id. at

11. Ms. Crawford felt she had made “excellent progress with her rehabilitation,” but was

concerned that she still had “some pain and stiffness with active shoulder abduction.” Id.

Dr. Skordas noted that Ms. Crawford had mild subacromial bursitis on exam, but overall

had progressed well after her surgery. Id. He administered a subacromial steroid injection

in her left shoulder. Id.

On March 8, 2021, Ms. Crawford presented to orthopedist Neil Pathare, M.D., with

a complaint of left shoulder pain “for the past few years.” Ex. 34 at 3-6. She reported that

her pain began after her flu shot in September 2017, which resulted in a frozen shoulder.

Id. Ms. Crawford further reported that after surgery and several courses of PT, her ROM

“greatly improved,” but her pain had not. Id. She reported that the previous steroid

injection provided moderate relief for a few months, but her pain had worsened. Id. On

exam, Ms. Crawford had tenderness to palpation in the anterior shoulder, full active ROM

with pain in the extremes of forward flexion, full strength, and positive Neer’s and Hawkins

signs. Id. An x-ray was unremarkable. Id. Dr. Pathare’s impression was subacromial

bursitis, left shoulder pain, and rotator cuff tendinosis. Id. Ms. Crawford received another

steroid injection, was prescribed Mobic for two weeks, and was given a home exercise

program. Id.

On April 19, 2021, Ms. Crawford returned to Dr. Pathare and reported full

resolution of her pain after the injection. Ex. 34 at 7-10. On July 2, 2021, she presented

to orthopedist Jay Parkin, M.D., who diagnosed her with impingement syndrome of the

left shoulder. Ex. 36.6 Dr. Parkin referenced an x-ray, but no results were provided. Id.

7

He also recommended that Ms. Crawford receive another steroid injection for pain relief

and “[d]iscussed frequent cortisone injections,” but there is no indication that Ms.

Crawford received another injection at this visit. Id.

On September 24, 2021, Ms. Crawford underwent an orthopedic follow up with Dr.

Pathare for her left shoulder impingement syndrome and continued pain. Ex. 40 at 1. She

reported that the effects of the cortisone injection that she received in March 2021 wore

off one to two weeks after her last visit with Dr. Pathare in April 2021. Id. The physical

exam of the left shoulder demonstrated tenderness to palpation anterior shoulder,

FAROM with pain in the extremes of forward flexion, and rotator cuff – supra 4/5, infra

5/5, positive Neer sign and positive Hawkin’s test. Id. at 3. The impression was

subacromial bursitis of left shoulder joint, tendinosis of left rotator cuff, and impingement

syndrome left shoulder. Id. Dr. Pathare recommended another MRI to evaluate for rotator

cuff tear. Dr. Pathare administered a steroid injection into her left subacromial space with

the plan to treat with Mobic, ice, activity modification and return in two months. Id. at 3-4.

No further records since September 2021 have been filed.

2. Affidavit Evidence

a. Ms. Crawford

Ms. Crawford submitted an affidavit, dated April 11, 2019, in support of her petition,

in which she stated that she had pain in her left arm and shoulder within 24 hours of

receiving the flu vaccination which she “associated with normal soreness with

vaccination,” but that the pain worsened within two or three days. Ex. 1 at 1. She further

stated that in “the first part of October” she spoke to the Walmart pharmacist, who advised

her to see her doctor. Id. at 1-2.

Ultimately, Ms. Crawford explained her delay in seeking treatment for her left

shoulder pain as follows:

There was a fire at my house on October 14, 2017, that damaged my fence,

car and the side of my house. I was also planning to go on a cruise for about

one week beginning October 21, 2017, so I decided to make an

appointment for my shoulder when I returned home. However, when I

returned home from the cruise, I had a bad cough. I sought treatment for

the cough before seeking treatment for my left shoulder. I was more

concerned about the cough and believed that the arm pain would eventually

8

go away. However, I mentioned my left shoulder pain as an aside to the

physicians treating me for the cough. I also traveled across the country from

November 22-30, 2017, for a school reunion. Given the fire, my travels, the

holidays, my bad cough, and my belief that the shoulder pain would go

away, I did not call to make an appointment for my shoulder until December

29, 2017.

Id. at 2.

Ms. Crawford submitted a supplemental affidavit, dated August 4, 2021, in which

she stated that she has had diabetes for 10 years and never experience joint or muscle

pain prior to her flu vaccination. Ex. 37 at 1. She further stated that she has never

complained of right arm or shoulder pain and does not know why she had a right shoulder

x-ray, except for the purposes of comparing it to her left shoulder. Id. She averred that

when she completed PT in July 2018, her range of motion “had gotten much better but

[her] radiating pain in [her] upper arm continued.” Id. at 2. She stated that “[t]his dull achy

pain woke me up at night and made it hard to sleep” and that “this continued through my

next treatment for left shoulder pain on May 29, 2019.” Id. Ms. Crawford also averred:

I spoke with my surgeon after my surgery, and he said that the upper arm

injury was caused by some object like a needle from the shot. The surgeon

said that no other problem could have caused the inflammation in the area

where the needle entered and possibly the needle from the influenza

vaccine was entered too high/in the wrong place.

Id.

Ms. Crawford claims that she has had chronic pain that causes her to be “irritable

and snappy” and that most of the time, and that it feels like she is holding a five-pound

weight in her left hand. Id. She further claims that she is unable to lift heavy objects or dig

holes in her garden, and she has difficulty opening jars with her left hand and driving long

distances. Id. She asserts that cortisone injections only help briefly, and the pain returns

after a couple of weeks. Id.

b. Laurence Stahl

Ms. Crawford’s husband, Laurence Stahl, submitted an affidavit dated June 19,

2020, in which he stated that Ms. Crawford received a flu shot at Walmart in September

2017, and “[w]ithin a few days of the vaccination she complained to [him] that her left

shoulder was still in pain from the vaccination.” Ex. 16 at 1. He further stated that Ms.

Crawford returned to the Walmart pharmacist, who advised her to see a doctor, but Ms.

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Crawford had felt it would resolve without treatment. Id. Mr. Stahl also noted the fire at

their house, the cruise they took, and their cross-country travel. Id. at 2. He specifically

stated that during the cruise in October, Ms. Crawford was still having shoulder pain and

that he recalled “her lying in bed and complaining of shoulder pain and having difficulty

sleeping due to the pain.” Id.

c. Wanda Bruster

Ms. Crawford’s daughter, Wanda Bruster, also submitted an affidavit, dated

September 9, 2020, in which she stated that while she did not remember the date of her

mother’s vaccination in the late summer or fall of 2017, she remembered that her mother

told her “that it had been a couple of weeks since receiving her flu shot, but the pain from

her flu shot had not gone away and her left arm still hurt from where she got the vaccine.”

Ex. 17 at 2. Ms. Bruster, who is a licensed vocational nurse, further stated, “I have a

distinct memory of her initial complaint of shoulder pain a couple of weeks after flu

vaccine. My mother is not one to complain about pain, so this stands out in my mind.” Id.

Ms. Bruster averred, “[T]his was the first time that I had ever heard of someone

complaining of shoulder pain from a vaccine for this length of time and I was puzzled by

her situation.” Id. She also stated that she only learned after her mother started treating

her shoulder that a vaccine could cause frozen shoulder. Id. Ms. Bruster stated that her

mother continued to complain of pain in her left arm “over the next several months.” Id.

d. Jacqueline McBride

Ms. Crawford also submitted an affidavit, dated June 18, 2020, from her friend,

Jacqueline McBride, with whom she does karaoke twice per week. Ex. 15 at 1. Ms.

McBride stated that she had a conversation with Ms. Crawford after noticing that she was

favoring her shoulder at karaoke. Ms. McBride stated that Ms. Crawford had told her, “that

her shoulder was hurting and that it was that ‘darn’ shot that caused her pain.” Id. at 1-2.

Ms. McBride averred that although she does not recall when this conversation occurred,

she knows it was before September 18, 2018, because she (Ms. McBride) had suffered

shoulder pain after a Tdap vaccination herself on September 18, 2018, and it reminded

her of Ms. Crawford’s complaints. Id. at 2. Ms. McBride further stated that she did some

research when she was experiencing symptoms, discovered that vaccinations can cause

shoulder injuries, she shared this information with Ms. Crawford, who was unaware of the

Vaccine Injury Compensation Program. Ms. McBride stated that she helped Petitioner

locate her attorney. Id.

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III. Expert Reports

a. Petitioner’s Expert

Petitioner’s expert, Dr. Uma Srikumaran, is board certified in orthopedic surgery

and an associate professor in the Shoulder Division in the Department of Orthopedic

Surgery at Johns Hopkins School of Medicine. Ex. 18 at 1.

Dr. Srikumaran obtained his medical degree from John Hopkins University School

of Medicine in 2005. Id. He thereafter completed a one-year surgical internship at John

Hopkins and completed his orthopedic residency in 2010 as an administrative chief

resident. Id. He began his professional career as an attending physician at John Hopkins

Hospital in 2011, which he continues to the present. Id. In 2017, Dr. Srikumaran became

the chair of the department of orthopedic surgery at Howard County General Hospital. Id.

He was specifically trained as a shoulder specialist at Harvard. Ex. 18 at 1. Dr. Srikumaran

stated that each year, he sees approximately 2,500-3,000 patients for shoulder issues

and performs between 400-500 shoulder surgeries annually. Id. He trains two shoulder

fellows each year as well as coordinates and trains between four and six residents in

shoulder surgery each year. Id. Dr. Srikumaran gives lectures locally, nationally, and

internationally on various topics related to shoulder pathology and shoulder surgery. Id.

A. Dr. Srikumaran’s First Expert Report

In preparing his report, Dr. Srikumaran states that he reviewed Petitioner’s exhibits

1-17, Respondent’s Rule 4(c) report, the petition, and he reviewed the Vaccine Injury

Table for SIRVA. Ex. 18 at 2. He states that based on his review of the medical records,

the scientific literature, and his experience and training, he concludes, to a reasonable

degree of medical certainty, that Ms. Crawford suffered a shoulder injury related to

vaccine administration (SIRVA) table injury. Dr. Srikumaran also believes that Ms.

Crawford has a causation-in-fact claim. Id.

Dr. Srikumaran notes that Ms. Crawford had no history of left shoulder pain that is

documented in her medical records prior to vaccination. Ex. 18 at 10. In considering the

onset of Ms. Crawford’s shoulder pain, Dr. Srikumaran states that Ms. Crawford

“consistently and reliably reports immediate shoulder pain after vaccination to her varied

medical providers, at various clinical settings including office and treatment visits over a

long period of time…” Id. He thus concludes that he believes that “Ms. Crawford’s pain

began immediately after the injection and worsened after that time.” Id. In reaching his

conclusion, Dr. Srikumaran states that based on his experience in treating and evaluating

patients at over 2,500 visits per year, “[t]he vast majority of patients do not have their pain

(outside of acute traumas/emergency room situations) evaluated within 48 hours.” Id. He

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goes on to explain that most of his patients are hopeful that the pain will improve with time

and wait weeks or months before seeking medical care. Id. Dr. Srikumaran also notes

that individuals have different abilities to tolerate pain and will wait even longer than

average to seek a formal evaluation, as Ms. Crawford did. Id. He cites to Ms. Crawford’s

declaration where she explains the delay in seeking treatment due to the fire at her home,

travel, and a cough that required more urgent medical evaluation. Id.

Dr. Srikumaran next states that he disagrees with Respondent’s arguments that

the findings of chronic degeneration (rotator cuff tear or osteoarthritis) on Ms. Crawford’s

MRI, the development of opposite shoulder pain, or having diabetes as a risk factor are

inconsistent with a SIRVA injury. Ex. 18 at 12. He states that chronic degenerative

conditions of the shoulder are “extraordinarily common”, and age related. Id. Regarding

the notations of symptoms in Ms. Crawford’s opposite (right) shoulder, Dr. Srikumaran

states that in the months immediately following vaccination, all of Ms. Crawford’s shoulder

complaints were regarding her left shoulder. Id. It was only 11 months later that she began

to complain of right shoulder pain, which after evaluation, only showed “typical age related

degenerative changes.” Id. He states that,

[t]his is quite typical when patients have shoulder pain one side to over

compensate with their other shoulder which can often lead to new complaints in

that opposite shoulder as it takes additional demands. This is a common way

patients attempt to protect their most symptomatic side and I do not find this

unusual.”

Id.

Dr. Srikumaran next opines that Ms. Crawford’s MRI findings support findings

consistent with SIRVA, namely the rotator cuff partial tears, tendinosis, subacromial

bursitis, and adhesive capsulitis. Ex. 18 at 12. He states that it is important to note that

patients at Ms. Crawford’s age will have imaging findings of chronic degenerative

conditions such as frayed or partially torn ligaments, tendons, and osteoarthritic joints. Id.

Dr. Srikumaran notes, however, that “the majority of these chronic conditions are

asymptomatic.” Id. His theory is that “the initiation of inflammation directly related to

vaccine antigen being delivered to or near the bursa or synovium of the joint… It is this

inflammation which initiates pain in previously long standing, silent, chronic degenerative

conditions.” Id. Dr. Srikumaran cites to medical literature showing the association of

subdeltoid bursitis after influenza vaccination. Id. at 10. Citing to Bodor et al., he states

that “a ‘high’ position of injection into the deltoid can lead to a subacromial injection rather

than an intramuscular injection.” Id. Dr. Srikumaran states that there is epidemiologic

evidence showing that the “investigators found an increased risk of subdeltoid bursitis

12

after influenza vaccination additional a rate of 7.78 cases per 1 million vaccinations (this

equates to an approximate incidence of 1:130,000).” Id.

Finally, Dr. Srikumaran states that “there are no other conditions such as

neuropathies or radiculopathies that can explain Ms. Crawford’s symptoms,” and that the

“proximate temporal relationship is consistent reported by Ms. Crawford… This timing

supports a causation with the vaccination as the trigger.” Id.

b. Respondent’s Expert

Respondent submitted an expert report and curriculum vitae prepared by Dr.

Geoffrey Abrams, also a board-certified orthopedic surgeon. Ex. A at 1. Dr. Abrams is

board certified in orthopedic surgery with subspecialty certification in sports medicine. Ex.

A at 1; Ex. B. He is an assistant professor of orthopedic surgery at Stanford University

School of Medicine. Id. Dr. Abrams is the Director of Sports Medicine for Stanford

University Varsity Athletics and Director of the Lacob Family Sports Medicine Center at

Stanford University. Id. He also serves as the team physician for a number of professional

and collegiate sports teams in the San Francisco Bay Area. Id. His surgical practice is

focused on orthopedic conditions of the shoulder, and he has published extensively on

shoulder pathology. Id. Dr. Abrams currently serves or has served on numerous national

and international professional orthopedic surgery organization committees related to the

diagnosis, treatment, and education of shoulder conditions. Id.

A. Dr. Abram’s First Report

Dr. Abrams’s expert report begins with an overview of his medical background,

followed by a summary of the medical records he reviewed and an overview of the SIRVA

disease process and his theory. Ex. A at 2-5. He opines that Ms. Crawford’s shoulder

pain is not related to SIRVA for four reasons: “1) the petitioner did not report pain in her

shoulder until nearly four months following the injection, despite having four visits with her

primary care provider during this intervening time, 2) she has a history of diabetes which

predisposes her to independent (non-SIRVA) development of adhesive capsulitis – which

she was diagnosed with following the injection, and 3) she has degenerative changes

(mild arthritis) of the left shoulder which is another common cause of shoulder pain.” Id.

at 4.

The next section of his report is dedicated to discussing the onset of Ms.

Crawford’s shoulder pain. Id. Dr. Abrams notes that Ms. Crawford waited nearly four

months before reporting her shoulder pain to a medical provider despite having four

intervening medical visits with her primary care provider. Id. at 5. Dr. Abrams notes that

Ms. Crawford “was even noted to be ‘go(ing) to gym including treadmill, weight lifting 2-

13

3x per week’ and have a pain severity score of 0/10.” Id. He states that it would be

“extremely unlikely” for Ms. Crawford to not discuss her shoulder pain when she stated

that she was going to the gym and lifting multiple times per week. Id. Dr. Abrams also

mentioned that there is documentation of a musculoskeletal review of symptoms which

includes different states from her PCP and thus was not a “copy and paste” from the prior

medical note. Id. Next, Dr. Abrams references the article cited by Petitioner’s expert, Dr.

Srikumaran, which discusses general obstacles to seeking treatment for pain. Id. Dr.

Abrams notes that the barriers that are discussed in the article, such as difficulty

communicating, and lack of medical insurance are not issues that Ms. Crawford

experienced. Id. at 5-6. Furthermore, the individuals in those articles had sought medical

attention for pain over the prior two weeks and not four months like Ms. Crawford. Id. at

5. Finally, Dr. Abrams noted that Ms. Crawford stated that her shoulder pain was acute

and thus does not explain why she delayed seeking treatment, especially when she

sought immediate care for other conditions such as her cough. Id. at 6. He states that he

is not claiming that Ms. Crawford is misrepresenting her shoulder pain, but rather that her

pain is attributable to her other conditions. Id. Dr. Abrams cites to a position statement by

the North American Orthopedic professional society addressing their consensus view that

common shoulder conditions cannot be caused by vaccine administration. Id. The

position includes the following statement,

There is no high-quality evidence that demonstrates that vaccination can

cause or contribute to common shoulder problems such as rotator cuff

tendinopathy and arthritis. There are only descriptions of patients that

perceive a relationship between vaccination and their shoulder problem…

Id. at 7. Dr. Abrams notes that Ms. Crawford has rotator cuff (supraspinatus)

tendinopathy and mild arthritis of her left shoulder which can be seen on her MRI. Id. She

also has evidence of adhesive capsulitis, a slowly developing condition which she is at

increased risk of due to her history of diabetes. Id.

The next section of Dr. Abram’s report discusses how adhesive capsulitis is more

common in diabetic patients. Ex. A. at 7. Dr. Abrams noted that Ms. Crawford’s Hba1c

value was elevated and that hyperglycemia “is known to have significant negative effects

on the shoulder and makes patients more susceptible to the development of inflammatory

conditions, such as adhesive capsulitis.” Id. Dr. Abrams goes on to explain how

hyperglycemia affects the muscles in the shoulder citing several medical articles that

show the prevalence of adhesive capsulitis in patients with diabetes. Id. at 7-8. He

explains that with a SIRVA injury, the subacromial space/bursa is injected with antigenic

material, while with adhesive capsulitis, the contracture of the glenohumeral capsule is

the hallmark sign – two distinctly different components of the shoulder structure. Id. at 8.

14

Regarding Dr. Srikumaran’s report, Dr. Abrams states “[n]owhere in his report, nor the

Hesse et al. article, is there a discussion of how adhesive capsulitis can be caused of

injection of antigenic material to the joint, presumably because this would be extremely

unlikely to occur in someone with an intact rotator cuff.” Id. at 8-9.

Dr. Abrams next discusses how Ms. Crawford’s rotator cuff tendinopathy and

arthritis are a more likely alternative cause of her shoulder pain. Ex. A. at 9. As Dr.

Srikumaran notes, there is an association between rotator cuff partial tears and tendinosis

with a SIRVA injury, but “causation is lacking.” Id. This is because of the overwhelming

occurrence of these types of symptoms in the general population, especially in Ms.

Crawford’s age group. Id. Dr. Abrams opines that it is more likely that Ms. Crawford’s

rotator cuff tendinopathy and arthritis “became naturally symptomatic over the course of

a four-month timeframe after vaccination rather than due to the vaccination itself.” Id. He

states that in his experience, it is uncommon for a patient to identify a trigger for their

shoulder pain, but rather identify a period of time over which the shoulder began to bother

them (absent some traumatic event). Id.

Regarding Ms. Crawford’s right shoulder pain, Dr. Abrams states that Dr.

Srikumaran’s statement that Ms. Crawford’s right shoulder injury is due to her

compensation for the left shoulder dysfunction “is not clinically plausible.” Ex. A at 9. He

explains that compensatory contralateral shoulder pain is not uncommon, but not at two

years after onset of the original extremity; it would occur much sooner. Id. Dr. Abrams

concludes that the fact that the right shoulder pain began long after onset of the

vaccination “points more to the predisposition of the petitioner to develop shoulder pain

due to her diabetes as well as degenerative changes of the shoulder.” Id. He notes that

Ms. Crawford’s pain was “episodic and not continuous” from the time of vaccination to

July 2020, leading to the conclusion that arthritis, a slowly developing and progressive

condition, is the more likely source of her shoulder pain. Id.

Finally, Dr. Abrams states that in the notes from Ms. Crawford’s shoulder surgery

in June 2020, the surgeon observed that there was “significant fraying of the superior

aspect of the labrum, tenosynovitis of the long head of the biceps tendon, and diffuse

Grade 2 and focal Grade 3 cartilage damage to the glenoid (Ex 14, p 13).” Ex. A at 10.

These findings are not consistent with a SIRVA injury. Id.

B. Dr. Srikumaran’s Supplemental Expert Report

Dr. Srikumaran submitted a supplemental expert report responding to Dr. Abrams.

Ex. 33. Regarding the onset of Ms. Crawford’s shoulder pain, Dr. Srikumaran notes that

after Ms. Crawford sought care for her left shoulder injury, “she consistently and reliably

15

reported the onset of her pain as starting after receiving vaccination.” Id. at 1. He explains

that the medical profession routinely relies upon the patient history, along with the

physical exam, imaging, and other diagnostic assessments. Id. at 1-2. Dr. Srikumaran

also notes that is unlikely that Ms. Crawford’s husband, friend, and daughter all had

unreliable recollection of the events that followed Ms. Crawford’s vaccination, as is

articulated in their declarations. Id. at 1.

Regarding the issue of Ms. Crawford’s diabetes contributing to her development

of adhesive capsulitis, Dr. Srikumaran agrees that all diabetic patients are at higher risk

of developing adhesive capsulitis. Ex. 33 at 2. In response to Dr. Abrams’s statement, Dr.

Srikumaran states that he is not suggesting that the inflammation from the subacromial

bursa penetrated directly into the joint capsule to cause adhesive capsulitis, but rather,

the adhesive capsulitis results as a sequela from the bursitis and pain. He states that the

pain can cause a patient to protect their arm by avoiding certain movements and at times

completely immobilizing the arm. Id. at 2. Dr. Srikumaran goes on to explain that it is more

likely than not that Ms. Crawford’s chronic conditions of her left shoulder (rotator cuff

partial tears, tendinosis, cartilage damages) became more symptomatic after

inflammation caused by the vaccine. This, he states, is a more likely scenario than having

the symptoms flare up without a nidus. Id.

Dr. Srikumaran states that although he was incorrect on the timing of the onset of

Ms. Crawford’s right shoulder pain (he reported it occurred 10 months post-vaccination

versus two years post-vaccination), the timing does not affect his opinion. Ex. 33 at 3. He

states that Ms. Crawford’s repeated need to compensate for her left shoulder over a long

period of time, and the increased burden on her right shoulder made her right shoulder

chronic conditions symptomatic. Id. Dr. Srikumaran notes that unlike her left shoulder,

Ms. Crawford’s right shoulder symptoms were transient, isolated, and resolved. Id.

Finally, in addressing the statement put forth by the North American Orthopedic

professional society, cited by Dr. Abrams, which states that there is no high quality

evidence that demonstrates that vaccination can cause or contribute to common shoulder

problems such as rotator cuff tendinopathy or arthritis, Dr. Srikumaran notes that the

AAOS’s position does not consider the overall growing body of evidence and medical

literature to the contrary and the position contains a disclaimer that it is not a product of

systemic review, i.e., readers are encouraged to consider the information and reach their

own conclusions. Id. at 3. Dr. Srikumaran states that he rejects the conclusions of this

non-peer reviewed position statement. Id. at 4.

16

B. Dr. Abram’s Supplemental Report

In his supplemental report, Dr. Abrams reiterates his position that it is unlikely that

Ms. Crawford’s shoulder pain began within 48 hours of vaccination. Ex. C at 1. He

explains that Ms. Crawford saw her primary care physician on four separate occasions

and discussed issues such as working out at the gym. Id. Dr. Abrams state that it would

be very unlikely that Ms. Crawford would omit complaining about her shoulder pain to a

physician that she sees for all general issues, including her cough and diabetes

management. Id. He stated that this was especially so when discussing her return to the

gym – it would have been a very likely that Ms. Crawford complained about shoulder pain

if she had been discussing going to the gym. Id.

Dr. Abrams also discusses the Shi et al. article cited by Dr. Srikumaran which

discusses the reasons patients sometimes delay seeking treatment. Ex. C at 1. Dr.

Abrams explained that the reasons discussed in that article, lack of access to care (i.e.,

insured) as well as difficulty communicating with providers, are not issues that were

present when Ms. Crawford was seeking care. Id. at 2. He explained that Ms. Crawford’s

life events did not prevent her from seeking care for her other non-urgent conditions. Id.

Regarding the witness affidavits, Dr. Abrams states that “memory is malleable and

certainly prone to suggestion over time …” Id.

Regarding Ms. Crawford’s pain, Dr. Abrams notes that Dr. Srikumaran agrees that

diabetic patients are at higher risk for adhesive capsulitis. Ex. C at 2. Dr. Abrams states

that Dr. Srikumaran slightly shifted his argument that an injection can lead to adhesive

capsulitis by explaining that when a patient has bursitis from the injection, the patient can

experience pain which can lead to a decreased range of motion, leading to shoulder

stiffness and resulting in adhesive capsulitis. Id. However, Dr. Abrams states that the

medical records establish a timeline where Ms. Crawford did not experience pain

immediately after vaccination, and thus, her diabetes is a more likely cause of her

adhesive capsulitis. Id. at 3. His conclusion is that while “SIRVA can be diagnosed in the

appropriate circumstances, the clinical facts present in this case make a non-SIRVA-

related cause of shoulder pain more likely.” Id.

IV. Parties’ Respective Arguments

Petitioner argues that the medical records, affidavit, and Dr. Srikumaran’s expert

reports all clearly demonstrate that she suffered a SIRVA injury following receipt of the flu

vaccine on September 4, 2017. Mot. at 1. Respondent argues that Petitioner’s claim fails

because the onset of her shoulder pain did not occur within 48 hours of vaccination, and

that her shoulder symptoms are caused by a factor unrelated to vaccination (i.e., prior

shoulder pathology and her diabetes diagnosis). Thus, two Table SIRVA injury

17

requirements cannot be met. Opp. at 1; 23. Respondent also argues that Petitioner has

not established a cause-in-fact claim. Id. at 23.

V. Applicable Law

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). 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, this rule

does not always apply. “Written records which are, themselves, inconsistent, should be

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as

incorrect the presumption that medical records are accurate and complete as to all the

patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,

1383 (Fed. Cir. 2021).

The United States Court of Federal Claims has outlined four possible explanations

for inconsistencies between contemporaneously created medical records and later

testimony: (1) a person’s failure to recount to the medical professional everything that

happened during the relevant time period; (2) the medical professional’s failure to

document everything reported to her or him; (3) a person’s faulty recollection of the events

when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did

not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),

aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

The Court has also said that 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

18

& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).

The credibility of the individual offering such fact 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

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, 110 Fed. Cl. at 204 (citing Section 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).

VI. Analysis

I. Fact Findings – Onset and Entitlement

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,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

3

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).

19

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;

(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.

20

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 at 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

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 at 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).

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 Qualifications and Aids to Interpretation

(“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). Although Respondent has insinuated that Ms.

Crawford had preexisting shoulder degeneration issues which may have contributed to

her left shoulder pathology, he has not specifically raised this first requirement as a basis

for dismissal, and has clearly stated in his brief that Ms. Crawford “did not have a history

of left shoulder pain or injury.” Opp. at 4. The specific language of the relevant QAI portion

21

states that there must be “[n]o 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.” 42 C.F.R. § 100.3(c)(10)(i). Ms. Crawford’s medical history does not evidence

pre-vaccination explanatory “pain, inflammation or dysfunction.” Thus, the evidence

preponderantly supports the conclusion that any pre-vaccination symptoms were not

likely related to what Petitioner experienced post-vaccination. The first SIRVA criterion is

met.

2. Pain Occurs with the Specified Timeframe (Onset)

Regarding the onset of Petitioner’s pain, in order to meet the definition of a Table

SIRVA, a petitioner must show that she experienced the first symptom or onset within 48

hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)) and that her pain occurred within that

same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI criteria)).

Respondent’s argument rests on the fact that Ms. Crawford did not report her

shoulder injury to a medical provider until nearly four months after vaccination, and in the

interim, she presented to medical providers on five separate occasions and did not report

shoulder pain to any of them. Opp. at 16. Significantly, Respondent notes that four of

these interim visits were with the family health clinic from which Ms. Crawford received

primary care. Id. At the first such visit, on September 18, 2017, two weeks after

vaccination, Ms. Crawford was noted to be going to the gym and lifting weights two to

three times per week. Ex. 3 at 111. It was not until January 2, 2018, almost four months

after vaccination, that she first reported shoulder pain to her PCP. Id. at 81-85, 87.

In her affidavit, Ms. Crawford explains the reasons for her delay in seeking

treatment. She attributes the delay to a fire that occurred at her house in October 2017,

her time spent on a scheduled vacation cruise, and then first seeking care for a more

urgent cough that required treatment when she returned. Ex. 37 at ¶4. She states that

“[g]iven the fire, my travels, the holidays, my bad cough, and my belief that the shoulder

pain would go away, I did not call to make an appointment for my shoulder until December

29, 2017.” Id.

Ms. Crawford also submitted the affidavits of her husband, daughter, and friend

who all averred to observing and hearing Ms. Crawford complain of left shoulder pain in

the days and weeks following her September 4, 2017 vaccination. Exs. 15, 16, 17.

Specifically, Ms. Crawford’s husband, Mr. Laurence Stahl, stated “[w]ithin a few days of

the vaccination, she complained to me that her left shoulder was still in pain from the

vaccination and that she was concerned that the pain was still present.” Ex. 16. Ms.

22

Crawford’s daughter, Wanda Bruster, stated, “I have a distinct memory of her initial

complaint of shoulder pain a couple of weeks after her flu vaccine. My mother is not one

to complain about pain, so this stands out in my mind…” Ex. 17.

Both Petitioner’s and Respondent’s experts spent a significant amount of time in

their reports opining on the reasons Ms. Crawford delayed reporting her shoulder

symptoms. Exs. 18, A. However, the question of onset of shoulder pain is a factual

question for which expert testimony is not necessary (although explanations for delay

inform somewhat the outcome, in any case where pain onset issues involve treatment

delays). Neither Dr. Srikumaran nor Dr. Abrams has any additional evidence or factual

information than the information that is contained in the record. While both have offered

very credible reasons for why Ms. Crawford did or did not report her shoulder pain more

promptly, these reasons are ultimately speculation. Thus, I must review the facts as a

whole, including the medical records and affidavit testimony, and reach a conclusion

based on a preponderance of the evidence.

There is no dispute that Ms. Crawford waited nearly four months before being seen

for her left shoulder symptoms. This is not an insignificant amount of time and

Respondent’s objection regarding onset is a credible one. However, there are a variety

of reasons that an individual may wait before seeking medical treatment especially for a

shoulder injury related to a vaccine injury.

Many individuals expect, and are advised, that there will be pain at the injection

site after vaccination. This can lead to a delay in seeking treatment. An individual’s

particular threshold for pain or avoidance of doctors are other reasons. In this case, Ms.

Crawford’s daughter stated that her mother is one that typically does not complain about

pain.

In addition, Ms. Crawford had a series of events in the months following

vaccination that she explained made her delay seeking medical treatment for her

shoulder, despite the fact that she sought treatment for other unrelated symptoms. Ms.

Crawford stated that she did mention in passing her shoulder pain to her physicians during

some of her intervening medical visits, but these complaints were not documented. This

is not unusual. Post-vaccination pain is a typical side effect associated with vaccination.

Many SIRVA cases feature medical record notations from physicians recommending that

a patient wait a period of time after vaccination to allow time for the shoulder pain to fade

before seeking treatment. Continued pain for nearly four months is not typical, however.

It was at this stage that Ms. Crawford sought medical attention. Her first documented

complaint of shoulder pain on January 2, 2019, specifically links her left shoulder pain to

23

her September 2017 influenza vaccine. (“P[atien]t correlate[d] onset [with] [an] influenza

vaccine done on [the] same side,” but denied other trauma. Ex. 3 at 87).

Thereafter, there are a consistent number of medical record citations that all link

the onset of Ms. Crawford’s left shoulder pain to her vaccination. See e.g., Ex. 4 at 2 and

52 (noting that Ms. Crawford “had flu shot and shoulder started to ache”); Ex. 7 at 12 (“74

y[ear] o[ld] dependent female with L[eft] shoulder pain that started after immunization in

2017.”); Ex. 9 at 6; (“She reports that the symptoms started in her left shoulder in

September 2017 following a flu shot.”); Ex. 10 at 6, 26, and 40 (“74 year old right handed

female presents with c/o L shoulder pain worst sub-deltoid and lateral upper arm. Date:

September 2017. Mechanism of injury: after flu shot.”); Ex. 14 at 13 (“This is a 75-year-

old female who began having pain in her left shoulder in 2017 following a flu shot.”); Ex.

34 at 3 (“Patient is a 76 yo RHD female who presents with L shoulder pain for the past

few years. Patient reports pain initially began after she received her flu shot in September

of 2017 that resulted in frozen shoulder”). Onset in these later records is further

corroborated by the declarations of Petitioner and the three other witness declarations

offered in support of Ms. Crawford’s case. The fact that several of these treatment-related

records were generated within four to six months of vaccination is also relevant to this

inquiry; this is not a case where a petitioner relies on records long after the immediate

timeframe to prove onset.

Although a four-month delay in seeking treatment for shoulder pain and symptoms

does not absolutely negate a SIRVA claim, it does provide evidence on the issue of

severity. (That issue is discussed in the damages section infra – and as noted below, it

establishes some grounds for reducing the magnitude of the pain and suffering award in

this case). But on the issue of onset, the totality of the evidence preponderantly supports

the conclusion that Ms. Crawford’s shoulder pain occurred within 48 hours of her

vaccination. I reiterate, however, that this is a fairly weak preponderant showing – enough

to barely cross the “fifty percent and a feather” line, but not enough to fully remove all

doubt that onset was possibly later.

3. Petitioner’s Pain and Limited Range of Motion was Limited to her

Left Shoulder

The specific language of a SIRVA injury contained in the QAI of the Vaccine Injury

Table is that “pain and reduced range of motion are limited to the shoulder in which the

intramuscular vaccine was administered.” 42 C.F.R. § 100.3(c)(10)(iii) (QAI criteria)). It

does not appear that Respondent is contesting this criterion. However, there is a brief

reference to a right shoulder x-ray and symptoms that I will briefly address. On July 17,

2019, Ms. Crawford underwent an x-ray of her right shoulder, which apparently was

24

performed due to bilateral shoulder pain, and showed degenerative enthesopathic

acromial spurring and degenerative hypertrophic changes involving the right

acromioclavicular articulation. Ex. 9 at 3. In her affidavit, Ms. Crawford stated that she

has never complained of right arm or shoulder pain and does not know why she had a

right shoulder x-ray, except for the purposes of comparing it to her left shoulder. Ex. 37

at 1. In July 2020, Ms. Crawford had apparently requested a correction on a radiology

request from the right shoulder to her left shoulder, seemingly regarding this x-ray. Ex. 14

at 8-9.

There is only this single x-ray related to the right shoulder and Ms. Crawford is not

claiming any injury nor is she seeking any compensation related to her right shoulder. In

addition, Respondent’s brief makes no argument that Petitioner’s pain and limited range

of motion was not limited to her left shoulder. Thus, I find that all the evidence presented

supports a finding that Ms. Crawford’s pain and reduced range of motion was limited to

her left shoulder, and that she has fulfilled this 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 Petitioner’s current symptoms. 42 C.F.R. §

100.3(c)(10)(iv). Respondent’s argument is twofold: (1) that Petitioner’s imaging and

operative findings demonstrate other chronic shoulder pathology that predated or is

unrelated to the vaccination, and (2) that Ms. Crawford’s diabetes mellitus is a more likely

cause of her adhesive capsulitis. Thus, Respondent claims that Petitioner has failed to

establish a Table claim.

First, Respondent argues that Ms. Crawford’s MRI showed evidence of rotator cuff

tendinopathy and mild arthritis. Ex. A at 7. Dr. Abrams opined that “[w]hile these

conditions certainly existed prior to the vaccination in question, it is more likely that they

became naturally symptomatic over the course of a four-month timeframe after the

vaccination rather than due to the vaccination itself.” Id. at 9. Dr. Abrams further states

that these symptoms “are exceedingly common in petitioner’s age group, ”and “a leading

cause of shoulder pain in the general population.” Id. (citing Ex. A11).

In Dr. Abrams’s view, it is uncommon for patients with slowly developing

conditions, such as arthritis, to identify a trigger absent major trauma. Id. at 9. As a result,

Dr. Abrams believes “it is more likely that the petitioner’s shoulder pain developed due to

the normal and expected course of her degenerative shoulder, rather than some

nontraumatic event such as a vaccination, particularly when given the extended time

period of nearly four months between the vaccination and the first report of shoulder pain.”

Id. Given Ms. Crawford’s waxing and waning of symptoms, Dr. Abrams states that

25

“[s]houlder arthritis is, by nature, a slowly developing and progressive condition that

typically has stepwise deterioration,” and that “this episodic timeline argues against

SIRVA as a diagnosis and points rather to the petitioner’s predisposition to develop

shoulder pain due to her medical condition.” Id. at 10. Regarding Ms. Crawford’s MRI, Dr.

Abrams stated that the findings of fraying of the labrum, tenosynovitis of the bicep tendon

and diffuse cartilage damages to the glenoid (Ex. 14 at 13) “are not consistent with SIRVA

related injuries and further provide evidence as to why the petitioner’s shoulder began to

have symptoms again after a period of relative quiescence from at least July of 2018

through May of 2019.” Id.

Petitioner’s expert, Dr. Srikumaran, disagrees, stating that the chronic conditions

seen on Ms. Crawford’s MRI “became symptomatic after inflammation caused by the

injection…” Ex. 33 at 2-3. He noted that Ms. Crawford, “like most people her age, will

have imaging findings of chronic degenerative conditions such as frayed or partially torn

ligaments and tendons and osteoarthritic joints. However, the majority of these chronic

conditions are asymptomatic.” Id. at 12. Dr. Srikumaran states that his theory is that it “is

the initial of inflammation directly related to the vaccine antigen being deliver to or near

the bursa or synovium of the joint… It is this inflammation which initiates pain in previously

long standing, silent, chronic degenerative conditions.” Id. He argued that it was more

likely than not that her symptoms were a result of the vaccination “than to slowly develop

without a nidus.” Id. He goes on to state that “[t]here can be many triggers to inflammation

that cause a degenerative condition to become symptomatic. I agree with Dr. Abrams that

in cases where patients cannot identify a trigger, or cannot identify one reliably, it would

be more likely than not a chronic condition could explain their symptoms. However, in this

case we do indeed have a trigger with a strong, reliably, and consistently reported,

temporal association.” Id.

Regarding the x-ray of Ms. Crawford’s right shoulder, Dr. Abrams opined that the

fact that Ms. Crawford had right shoulder pain and degenerative findings on imaging of

her right shoulder “points more to the predisposition of the petitioner to develop shoulder

pain due to her diabetes as well as degenerative changes in the shoulder.” Ex. A at 9. Dr.

Srikumaran, on the other hand, opines that due to her left shoulder pain, Ms. Crawford

overcompensated by using her right shoulder. Ex. 18 at 12. He states, “This is quite typical

when patients have shoulder pain one side to over compensate with their other shoulder

which can often lead to new complaints in that opposite shoulder as it takes on additional

demands. This is a common way patients attempt to protect their most symptomatic side

and I do not find this unusual.” Id.

In her supplemental affidavit, Ms. Crawford stated that she has never complained

of right arm or shoulder pain and does not know why she had a right shoulder x-ray,

26

except for the purposes of comparing it to her left shoulder. Ex. 37 at 1. The significance

of this right shoulder x-ray is not immediately apparent, but in any event, it does not play

a role in causation in this case. Petitioner does not make any claim for a right shoulder

injury, she does not recall complaining of right shoulder pain, and the entire record only

contains this single reference to her right shoulder. Although Dr. Abrams opines that the

right shoulder x-ray is evidence of Ms. Crawford’s predisposition to develop shoulder pain

and arthritis, it is not preponderant evidence that disproves vaccine causation. Thus, I do

not find that the right shoulder x-ray proves or disproves vaccine causation in this case.

Both experts agree that Ms. Crawford had evidence of arthritis and other

degenerative changes in her left shoulder, as revealed by MRI, and that these conditions

likely pre-dated the vaccination at issue. However, I find Petitioner’s expert, Dr.

Srikumaran’s explanation to be more persuasive. Ms. Crawford had no issues with her

left shoulder prior to her September 4, 2017 vaccination, a point that is not disputed by

either party. I have found, based on the evidence before me, that Ms. Crawford did

experience pain in her left shoulder within 48 hours of vaccination as I articulated above.

Respondent’s expert’s explanation that Ms. Crawford’s arthritic and degenerative pain

coincidentally flared within two days of receiving a flu vaccination to the area of her left

shoulder where her pain occurred is ultimately unpersuasive. It is more likely than not that

the flu vaccination, as Dr. Srikumaran explained, triggered inflammation in her previously

asymptomatic left shoulder as a result of her vaccination. Thus, any preexisting conditions

that Ms. Crawford may have had in her left shoulder do not likely explain her left shoulder

symptoms after vaccination.

Second, Respondent argues that Petitioner’s diagnosis of diabetes mellitus is a

more likely cause of her adhesive capsulitis. Opp. at 20. Dr. Abrams noted in his report

that in the month before the vaccination at issue in this case (August 2017), Ms.

Crawford’s HbA1c value for hyperglycemia was elevated. Ex. A. at 7. He stated that

“[h]yperglycemia is known to have significant negative effects on the shoulder and makes

patients more susceptible to the development of inflammatory conditions, such as

adhesive capsulitis.” Id. Dr. Abrams explained the mechanism for how diabetes affects

the muscle tissue and states that the incidence of shoulder impairments in individuals

with diabetes is “extremely common.” Id. at 7-8. He cites and attaches medical literature

regarding the increased risk of an adhesive capsulitis diagnosis in individuals with

diabetes. Id. Regarding Ms. Crawford’s case, Dr. Abrams states that based on her

diagnosis, “there is a significantly greater chance that she acquired [adhesive capsulitis]

as a result of her diabetes rather than the vaccination.” Id. at 8.

Dr. Abrams also explained that SIRVA could not cause adhesive capsulitis due to

the glenohumeral joint pathology. Ex. A. at 8. He states that “contracture of the

27

glenohumeral capsule is the hallmark of adhesive capsulitis,” and that the “capsule is

located only in the glenohumeral (ball and socket) joint, not the subacromial space.” Id.

Thus, he opines that the “[s]tandard needle length used for intramuscular injection in a

patient of the petitioner’s height, weight, and BMI … would not be long enough to reach

the intra-articular space from a deltoid injection, particularly in someone who has a BMI

in the overweight range.” Id. at 9.

In response, Dr. Srikumaran explained that while he agrees that all diabetic

patients are at higher risk for adhesive capsulitis, pain from bursitis caused by an injection

can cause a patient to protect their arm by avoiding certain movement and at times

immobilizing the arm. Ex. 33 at 2. This guarding can cause stiffness in the capsule. Id.

Dr. Srikumaran clarified that he was “not suggesting that the inflammation from the

subacromial bursitis necessarily penetrated directly to the joint capsule, but in

combination with a predisposition to adhesive capsulitis, the patient developed adhesive

capsulitis as the result of sequela from that bursitis and resulting pain.” Id. He stated that

this temporal relationship between vaccination and the development of adhesive

capsulitis was more plausible than the spontaneous development of adhesive capsulitis

due to having diabetes. Id.

Again, similar to my finding regarding the development of pain due to the natural

development of arthritis and degeneration, I find that Dr. Srikumaran’s explanation to be

more persuasive. Ms. Crawford has had diabetes for more than ten years. Ex. 37 at 1.

But she stated that she had never experienced any pain with her muscles and joints until

after the September 4, 2017 vaccination. Id. While Ms. Crawford’s diabetes may have

made it more likely for her to have suffered a shoulder injury at some point, I find that her

diabetes was not specifically an alternative cause or factor unrelated to vaccination which

best explains her left shoulder symptoms. Thus, I find there is no other condition or

abnormality present that would explain Petitioner’s symptoms.

B. Other Requirements for Entitlement

In addition to establishing a Table injury, a petitioner must also provide

preponderant evidence of the additional requirements of Section 11(c). The overall record

contains preponderant evidence to fulfill these additional requirements.

The record shows that Ms. Crawford received a flu vaccine intramuscularly in her

left shoulder on September 4, 2017. Ex. 2 at 1; 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. Petition at 4; Section 11(c)(1)(E) (lack of prior civil award).

28

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). I have also found that Petitioner’s pain and reduced

range of motion was limited to her left shoulder. 42 C.F.R. § 100.3(c)(10). Finally, I find

that there was no condition or abnormality that would explain Petitioner’s symptoms after

vaccination. Id. Therefore, Petitioner has satisfied all requirements for a Table SIRVA.

The last criteria which must be satisfied by Petitioner involves the duration of her

SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer

the residual effects of his or her left shoulder injury for more than six months or required

surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement).

Starting from September 24, 2016 (48 hours after vaccination), the records undoubtedly

demonstrate that Ms. Crawford suffered the residual effects of her shoulder injury for

more than six months. See, e.g., Ex. 7 at 17(record of Petitioner’s appointment with her

PCP); Ex. 5 (Petitioner’s June 11, 2019 MRI of her left shoulder). Thus, this requirement

is also met.

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.

VII. Damages

The parties have also briefed damages in this case, which is limited to claims for

an award of actual pain and suffering plus past unreimbursable expenses. Petitioner

requests $160,000.00 for her actual pain and suffering, and $45.574 for her past out-of-

pocket medical expenses, for a total award of $160,045.57. Mot. at 1. Respondent

proposed an award of $100,000.00 for pain and suffering and $45.57 for medical mileage.

Opp. at 20. 1-2.

A. Legal Standards for Damages Awards

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

4

In her Reply Brief, Ms. Crawford amended her request for out-of-pocket expenses to account only for out-

of-pocket expenses related to mileage in the amount of $45.57. Respondent agrees that this amount is

appropriate. Reply at 9-10.

29

award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover

“actual unreimbursable expenses incurred before the date of judgment award such

expenses which (i) resulted from the vaccine-related injury for which petitioner seeks

compensation, (ii) were incurred by or on behalf of the person who suffered such injury,

and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined

to be reasonably necessary.” Section 15(a)(1)(B). 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).

There is no mathematic formula for assigning a monetary value to a person’s pain

and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,

2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional

distress are inherently subjective and cannot be determined by using a mathematical

formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,

at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is

inherently a subjective evaluation”). 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. I.D., 2013 WL 2448125, at *9 (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)).

I may also consider prior pain and suffering awards to aid my resolution of the

appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe

34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is

nothing improper in the chief special master’s decision to refer to damages for pain and

suffering awarded in other cases as an aid in determining the proper amount of damages

in this case.”). And, of course, I may rely on my own experience (along with my

predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of

Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress

contemplated the special masters would use their accumulated expertise in the field of

vaccine injuries to judge the merits of individual claims).

Although pain and suffering in the past was often determined based on a

continuum, as Respondent argues, that practice was cast into doubt several years ago

by a particular decision from the Court. Graves v. Sec’y of Health & Hum. Servs., 109

5

From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.

For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,

were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,

the majority of SPU cases were reassigned to me as the current Chief Special Master.

30

Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of

all suffering awards into a global comparative scale in which the individual petitioner’s

suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590.

Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain

and suffering awards within the Vaccine Program, and a survey of similar injury claims

outside of the Vaccine Program. Id. at 595. Under this alternative approach, the statutory

cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude

of all possible awards as falling within a spectrum that ends at the cap. Although Graves

is not controlling of the outcome in this case, it provides reasoned guidance in calculating

pain and suffering awards.

B. Prior SIRVA Compensation Within SPU6

A. Data Regarding Compensation in SPU SIRVA Cases

SIRVA cases have an extensive history of informal resolution within the SPU. As

of January 1, 2024, 3,696 SPU SIRVA cases have resolved since the inception of SPU

on July 1, 2014. Compensation was awarded in 3,588 of these cases, with the remaining

108 cases dismissed.

2,075 of the compensated SPU SIRVA cases were the result of a reasoned ruling

that petitioner was entitled to compensation (as opposed to an informal settlement or

concession).7 In only 200 of these cases, however, was the amount of damages also

determined by a special master in a reasoned decision.8 As I have previously stated, the

written decisions setting forth such determinations, prepared by neutral judicial officers

6

All figures included in this decision are derived from a review of the decisions awarding compensation

within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited

are approximate.

7

The remaining 1,513 compensated SIRVA cases were resolved via stipulated agreement of the parties

without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,

and thus represent a reduced percentage of the compensation which otherwise would be awarded.

Because multiple competing factors may cause the parties to settle a case (with some having little to do

with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge

of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.

8

The rest of these cases resulting in damages after concession were either reflective of a proffer by

Respondent (1,846 cases) or stipulation (29 cases). Although all proposed amounts denote some form of

agreement reached by the parties, those presented by stipulation derive more from compromise than

instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of

damages.

31

(the special masters themselves), provide the most reliable precedent setting forth what

similarly-situated claimants should also receive.9

The data for all groups described above reflect the expected differences in

outcome, summarized as follows:

Damages Proffered Stipulated Stipulated10

Decisions by Damages Damages Agreement

Special Master

Total Cases 200 1,846 29 1,513

Lowest $40,757.91 $10,000.00 $45,000.00 $2,500.00

st

1 Quartile $70,000.00 $61,338.13 $90,000.00 $36,000.00

Median $88,974.23 $81,049.85 $130,000.00 $53,500.00

rd

3 Quartile $125,007.45 $110,000.00 $162,500.00 $80,000.00

Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00

B. Pain and Suffering Awards in Reasoned Decisions

In the 200 SPU SIRVA cases in which damages were the result of a reasoned

decision, compensation for a petitioner’s actual or past pain and suffering varied from

$40,000.00 to $210,000.00, with $85,000.00 as the median amount. Only nine of these

cases involved an award for future pain and suffering, with yearly awards ranging from

$250.00 to $1,500.00.11

In cases with lower awards for past pain and suffering, many petitioners commonly

demonstrated only mild to moderate levels of pain throughout their injury course. This

lack of significant pain is often evidenced by a delay in seeking treatment – over six

months in one case. In cases with more significant initial pain, petitioners usually

experienced this greater pain for three months or less. Most petitioners displayed only

9

Of course, even though any such informally resolved case must still be approved by a special master,

these determinations do not provide the same judicial guidance or insight obtained from a reasoned

decision. But given the aggregate number of such cases, these determinations nevertheless “provide some

evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Hum.

Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the

difference between cases in which damages are agreed upon by the parties and cases in which damages

are determined by a special master).

10

Two awards were for an annuity only, the exact amounts which were not determined at the time of

judgment.

11

Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa

v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).

32

mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed

evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many

petitioners suffered from unrelated conditions to which a portion of their pain and suffering

could be attributed. These SIRVAs usually resolved after one to two cortisone injections

and two months or less of physical therapy (“PT”). None required surgery. Except in one

case involving very mild pain levels, the duration of the SIRVA injury ranged from six to

30 months, with most petitioners averaging approximately nine months of pain. Although

some petitioners asserted residual pain, the prognosis in these cases was positive.

Cases with higher awards for past pain and suffering involved petitioners who

suffered more significant levels of pain and SIRVAs of longer duration. Most of these

petitioners subjectively rated their pain within the upper half of a ten-point pain scale and

sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.

All experienced moderate to severe limitations in range of motion. MRI imaging showed

more significant findings, with the majority showing evidence of partial tearing. Surgery or

significant conservative treatment, up to 133 PT sessions - occasionally spanning several

years, and multiple cortisone injections, were required in these cases. In eight cases,

petitioners provided sufficient evidence of permanent injuries to warrant yearly

compensation for future or projected pain and suffering.

C. Appropriate Compensation for Petitioner’s Pain and Suffering

In this case, awareness of the injury is not disputed, leaving only the severity and

duration of that injury to be considered. In determining appropriate compensation for pain

and suffering, I have carefully reviewed and considered the complete record in this case,

including all medical records, declarations, 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.

In her brief, Ms. Crawford requests $160,000.00 for her pain and suffering and

explains that her pain and suffering has persisted for nearly four years. Mot. at 30. She

states that her left shoulder pain started within 24 hours of her September 4, 2017

vaccination, and her most recent SIRVA related treatment occurred on July 2, 2021. Ex.

36. In her supplemental affidavit, Ms. Crawford states that she still experiences shoulder

pain every day and night. Ex. 27 at ¶10.

Regarding the severity of her injury, Ms. Crawford states that her pain and suffering

is on the severe end. Mot. at 30. Her treatment consisted of three x-rays, one MRI, three

33

steroid injections, 65 total PT sessions (both pre- and post-surgery), shoulder surgery on

June 22, 2020, Mobic, NSAIDS, ICE, a home exercise program, and activity

modifications. Ms. Crawford states that she also has instructions from her current

physician for “frequent, chronic cortisone injections as needed.” Ex. 36; Ex. 37 at ¶9.

In her affidavit, Ms. Crawford explains that prior to the vaccination, she led an

active life with various hobbies including gardening and exercising at the gym. Ex. 37 at

¶5. She explains that she can no longer lift heavy plants in her yard or dig holes to plant

them due to her persistent shoulder pain. Id. at ¶5, 8. In addition, she states that she can

no longer lift her grandchildren. Ms. Crawford averred that her constant pain has

prevented her from getting a full night’s sleep and that she tends to act “moody” or

“irritable and snappy.” Id. at ¶ 8, 10. She struggles with small tasks such as opening jars

or driving long distances. Id. at ¶10.

To support her requested award for pain and suffering, Ms. Crawford cites to three

cases: Tumolo v. Sec’y of Health & Human Servs., No. 16-343V, 2020 WL 6279711, at

*15 (Fed. Cl. Oct. 1, 2020) ($170,000.00 awarded for pain and suffering), Reed v. Sec’y

of Health & Human Servs., No. 16-343V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1,

2019) ($160,000.00 awarded for pain and suffering), and S.C. v. Sec’y of Health & Human

Servs., No. 19-341V. 2021 WL 2949763 (Fed. Cl. Spec. Mstr. June 14, 2021)

($160,000.00 awarded for pain and suffering).

Respondent, by contrast, submits that the lesser sum of $100,000.00 is

appropriate for pain and suffering. Opp. at 29. Addressing the specific damages cited by

Petitioner, Respondent argues that Tumolo, Reed, and S.C. involved more severe injuries

and non-medical circumstances that justified higher pain and suffering awards. Id.

Respondent cites to the Shelton case in support of his proposed award for pain and

suffering. Shelton v. Sec’y of Health & Human Servs., No. 19-279V, 2021 WL 2550093

(Fed. Cl. Spec. Mstr. May 21, 2021) ($97,500.00 awarded for pain and suffering).

In this case, the record establishes that although Ms. Crawford experienced the

onset of shoulder pain almost immediately after vaccination, the fact that she waited so

long to seek medical treatment will have to be considered in calculating a pain and

suffering award. Although the Program does not penalize a claimant for suffering with an

injury for a period of time, the fact that a person delays treatment – especially while readily

seeking other treatment for concurrent concerns – undermines the determination that the

injury was so severe that it warrants a higher pain and suffering award. This is especially

so when other cases, in which individuals readily seek treatment due to the unbearable

nature of the pain in question, are evaluated.

Here, it is incontrovertible that Ms. Crawford did not seek medical treatment right

34

away. While she may have discussed her shoulder injury with her family and friends in

the days and months after vaccination, she did not seek medical treatment until nearly

four months later. Even considering Ms. Crawford’s aversion to formal medical treatment

and her general avoidance of doctors, it remains the case that a very serious and painful

injury will impel an individual to seek treatment – and thus the failure to do so is more

reflective of a less-serious injury than the claimant’s personal proclivities with respect to

medical care generally.

Thus, the facts specific to this case support a lower award than in the cases cited

by Petitioner - Tumolo, Reed, and S.C. In Tumolo, a case decided by Special Master

Dorsey, the petitioner reported her shoulder pain promptly, just 16 days after vaccination,

and experienced severe pain for approximately nine months before she received her first

steroid injection. She underwent a total of 14 PT sessions, four MRIs, two cortisone

injections, and arthroscopic shoulder surgery. Her date of surgery was moved up due to

her complaints of significant pain. In total, petitioner sought treatment for 20 months over

a four-year period due to several gaps in treatment. Id. at * 3.

In Reed, the petitioner reported shoulder pain just 11 days post vaccination. Reed,

2019 WL 1222925, *3. She consistently reported significant pain for approximately six

months until the time she underwent shoulder surgery. Id. at *15. She described her pain

as “searing”, “intense”, “burning” and “throbbing,” and she began seeing a pain

management specialist. Id. The petitioner in the Reed case underwent treatment for two

and half years, had two MRIs, a shoulder arthrogram, a steroid injection, NSAIDs, muscle

relaxers, trigger point injections, Lidoderm patches, a course of PT, and she underwent

surgery which she deemed as “failed.” Id. at *7. And in S.C., the petitioner reported

shoulder pain to her orthopedist just two weeks following vaccination. S.C., 2021 WL

2949763, at *4. Petitioner rated her pain at an 8/10 at this time. Id. She underwent two

MRIs, four steroid injections, a total of 95 PT sessions (30 sessions pre-surgery and 65

sessions post-surgery), arthroscopic surgery, and she consistently reported her pain as

“significant” for more than four months. Id. The total duration of Petitioner’s injury was 38

months, with an 18-month gap of treatment. Id. at *5.

Respondent proposes an award of $100,000.00, referencing one comparable case

- Shelton v. Sec’y of Health & Human Servs. - where the petitioner delayed seeking

treatment for her injury for nearly five months post vaccination. Shelton, 2021 WL

2550093, at *7. She then did not obtain any further treatment until over three months later

at which time she was referred for diagnostic testing. Id. She subsequently underwent

consistent treatment for approximately one year which consisted of 26 total PT sessions

(both pre- and post-surgery), three steroid injections, one MRI, and arthroscopic surgery.

Id. at * 8. Similar to Ms. Crawford, however, the petitioner in Shelton also had fluctuating

levels of reported pain, and at times, the pain was rated fairly high, with some lower pain

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levels, particularly following receipt of a steroid injection. Id. However, in just 14 months

post-vaccination, the petitioner in Shelton had met all her goals and milestones and

sought no further treatment. Id. Thus, her overall treatment course was much shorter than

that of Ms. Crawford - although the record herein also establishes both a delay in initial

treatment, followed by a lengthy period for most of 2018 in which she received almost

wholly PT – with no increase in the intrusive nature of treatment until after the claim was

filed.

At bottom, the amount I award reasonably takes into account the fact that Ms.

Crawford experienced years of shoulder pain, underwent a significant amount of

treatment (including surgery), and endured a fairly long treatment course, if intermittent.

However, the four-month delay in seeing treatment must be factored into the award as it

signifies a less severe injury than the petitioners in the cases cited by Ms. Crawford – and

I also give weight to the twenty-month period in which treatment did not occur or was

limited in scope. Thus, I find that the amount of $105,000.00 for pain and suffering is fair

and appropriate. (I also award the full amount of the revised unreimbursed expenses

since they are not disputed).

VIII. Conclusion

In view of the evidence of record, I find Petitioner is entitled to compensation.

I also find that, for all of the reasons discussed above and based on consideration

of the record as a whole, $105,000.00 represents a fair and appropriate amount of

compensation for Ms. Crawford’s actual pain and suffering. She is also awarded

the full amount requested for her past unreimbursable medical expenses in the

amount of $45.57. Petitioner is therefore awarded a total of $105,045.57.

I approve a Vaccine Program award in the requested amount set forth above to be

made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix

B, the Clerk of the Court is directed to enter judgment herewith.12

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

12

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly

or separately) a notice renouncing their right to seek review.

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