finding medical records warrant consideration as trustworthy evidence as they are “generally contemporaneous to the medical events,” and “accuracy has an extra premium” because a patient’s “proper 13 treatment is hanging in the balance.”
How later courts described this case
- finding medical records warrant consideration as trustworthy evidence as they are “generally contemporaneous to the medical events,” and “accuracy has an extra premium” because a patient’s “proper 13 treatment is hanging in the balance.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-409V
PATRICIA SMITH, Chief Special Master Corcoran
Petitioner, Filed: December 11, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1
On January 8, 2021, Patricia Smith filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on
December 16, 2019. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters (the “SPU”).
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $77,000.00, for past pain and suffering.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
I. Relevant Procedural History
Shortly after the claim’s initiation, Petitioner filed an amended petition on April 12,
2021. ECF No. 6. On December 1, 2021, Respondent filed a status report stating that a
preliminary review of the case did not identify any missing records or issues that required
additional support. ECF No. 22. While this case awaited medical review, Petitioner
submitted a settlement demand to Respondent on May 10, 2022. ECF No. 28. On June
27, 2022, I ordered Respondent to file a status report regarding his position on settlement
by September 15, 2022, and noted that if he did not, Petitioner was permitted to file a
motion for a ruling on the record at that time. Non-PDF Order, docketed June 27, 2022.
Petitioner thereafter filed a motion for a ruling on the record regarding entitlement
and damages on October 5, 2022. Petitioner’s Motion for Ruling on Entitlement and
Damages (“Mot.”), ECF No. 32. Petitioner argued that she meets the Table definition of
a SIRVA, and requested an award of $80,000.00 for actual pain and suffering. Id. at 2.
Respondent filed his response and Rule 4(c) Report on October 19, 2022.
Respondent’s Rule 4(c) Report and Response to Petitioner’s Motion for a Ruling on
Entitlement and Damages (“Opp.”), ECF No. 35. Respondent argued, in part, that
Petitioner has failed to establish the threshold six-month severity requirement. Opp. at 9-
10. Additionally, Respondent argued Petitioner has failed to establish a Table claim
because the onset of her shoulder pain did not occur within 48 hours of her vaccine, the
record reveals her pain was not limited to her left shoulder, and there is another
abnormality present that could explain Petitioner’s symptoms. Id. at 10-11. Respondent
did not brief damages within his response. Id. at 11.
Petitioner filed a reply on October 26, 2022, addressing Respondent’s arguments
regarding entitlement. 3 Petitioner’s Reply to Respondent’s Rule 4(c) Report and
Response to Petitioner’s Motion for a Ruling on Entitlement and Damages (“Reply”), ECF
No. 36. In August 2023, Petitioner filed additional documentation in support of her ability
to establish the six-month severity requirement. See ECF Nos. 38-40. As ordered, on
November 17, 2023, Respondent filed his supplemental brief on damages and proposed
an award of no more than $50,000.00 for actual pain and suffering if entitlement is found
in favor of Petitioner. 4 Mem. at 5, ECF No. 42. Petitioner filed a supplemental reply brief
3 Petitioner did not file a reply to Respondent’s arguments regarding damages at that time, as Respondent’s
damages brief was ordered and filed after this filing. See Mem. at 1-2, ECF No. 42.
4 Respondent noted that Petitioner’s affidavit identifies her as a Medicaid recipient, but the record did not
show whether a Medicaid lien exists related to the cost of care for Petitioner’s left shoulder injury. Mem. at
1, n.1, ECF No. 42. Petitioner subsequently confirmed that a Medicaid lien does not exist in this case and
that was an error in the filings. Informal Comm., docketed Nov. 28, 2023.
2
on damages on December 1, 2023, reiterating that she has established a Table SIRVA
claim and requesting between $70,000.00 and $80,000.00 in pain and suffering. Reply
Br. at 1, ECF No. 43. This matter is now ripe for resolution.
II. Petitioner’s Medical History
Petitioner’s medical history was non-contributory. She was a hair stylist “for the
majority of her life” and, at the time of vaccination, was working as a school bus/van driver.
Ex. 9 at 6; Ex. 2 at 3; Ex. 4 at 9. At age sixty-six, Petitioner received the flu vaccine on
December 16, 2019, in her left shoulder. Ex. 1 at 4.
Approximately one month later, on January 13, 2020, Petitioner visited Geisinger
Family Practice (a convenient care facility) complaining of a “lump on [her] left arm since
she had her flu shot.” Ex. 6 at 4. Petitioner stated that the “[p]ain started that night after
getting her flu shot” and has been constantly present for “4 weeks.” Id. Petitioner
explained that the pain “comes up into her shoulder, [and she] cannot move her arm.” Id.
She denied numbness and tingling and stated that the “pain stops at the elbow.” Id.
Petitioner noted that home remedies, including icing/heating and ibuprofen, had been
ineffective in reducing her pain. Id. An examination revealed decreased range of motion
(“ROM”) and acute pain but “no definite lump [was] identified.” Id. at 6. An x-ray of her left
shoulder showed mild to moderate acromioclavicular osteoarthritis. Id. at 10. Petitioner
was assessed with acute pain of the left shoulder and prescribed a course of Medrol
(steroids). Id. at 9-10.
On February 24, 2020, Petitioner returned to Geisinger Family Practice
(convenient care) complaining of left shoulder pain that “started December 16.” Ex. 6 at
24. The physician noted that Petitioner had “no problems at [the] time of injection. The
next day [she] had left upper arm/shoulder pain[, which] has been constant since.” Id. An
examination revealed “no swelling or abnormality noted of left shoulder/upper arm. Full
shoulder ROM, but did have pain at end of movement with abduction.” Id. at 25. Petitioner
was assessed with chronic left shoulder pain and was told to follow up with her primary
care physician (“PCP”). Id. at 26.
Petitioner filed a Vaccine Adverse Event reporting system (“VAERS”) report on
March 3, 2020. Ex. 8 at 43. The VAERS report was authored by a “[d]octor or other
healthcare professional [in an] office/clinic visit” – but no other office notes for this visit
appear in the record. Id. The report stated that Petitioner noted her pain beginning on
“12/16/19,” and she described pain and burning at the injection site “radiating to [her]
shoulder [and] elbow.” Id.
3
The following day, on March 4, 2020, Petitioner visited her PCP at Geisinger
PrimeMed “basically to have this documented as well as to see what her options are.” Ex.
8 at 17. She reported “continued left arm pain after receiving a high dose flu shot on
12/16.” Id. Petitioner stated that the steroids helped “short-term but now the pain is back
with some radiation, now down her arm into her elbow and up into her shoulder joint.” Id.
A physical examination showed “strength in all extremities 4+ throughout[,]” but was
otherwise unremarkable. Id. Petitioner was assessed with pain in the left arm and an
injection site reaction, and her PCP noted that it is “[u]nclear as to why [Petitioner] is
having continued discomfort.” Id. at 18. The physician was “not sure [if Petitioner’s] full
nerve was injured or if this is just radiation of discomfort from several [sic] tendinitis.” Id.
Petitioner was prescribed prednisone. Id. at 19.
Following this appointment, there occurred a significant, eight-month gap in
Petitioner’s treatment for left shoulder pain. On November 6, 2020, Petitioner returned to
care and underwent an initial physical therapy (“PT”) evaluation. Ex. 4 at 12. Petitioner
stated her “left shoulder pain started last Dec[ember] 6th [sic] after getting a flu shot.” Id.
She explained that “in March/April [she was] given prednisone” that alleviated the pain
but the “pain returned about a month later. She was given prednisone again that helped
again.” Id. Petitioner explained her prednisone usage and reported that she had seen her
PCP “in July in person, but had some appointments at a local walk-in clinic and [was]
given more prednisone, but only received temporary relief.” 5 Id. Petitioner stated that the
“most recent exacerbation [of pain] occurred a few months ago.” Id. The onset was noted
as June 9, 2020, but “due to[] chronic symptoms.” Id. Petitioner rated her pain ranging
from a 6-10/10, with a present rating of 8/10. Id. An examination revealed reduced ROM
and strength, and she demonstrated “signs and symptoms consistent with [rotator cuff
tear] tendonitis/bursitis with postural deficits.” Id. at 13. Petitioner attended eight additional
PT sessions between November 10, 2020, and December 10, 2020, during which
Petitioner reported that her pain and ROM improved gradually. Id. at 16-37.
Petitioner established care with a new PCP on December 2, 2020. Ex. 5 at 4. She
complained of “[l]eft arm pain from [the] flu shot from last year. [She s]till has pain and
weakness in [her] arm.” Id. A physical examination showed a “tender area [in the] left
upper arm with [a] palpable lump.” Id. at 7. Petitioner received a referral for orthopedics.
Id.
5 The records for Petitioner’s alleged June and July 2020 visits have not been filed, despite Petitioner’s
contention that such visits occurred. Petitioner filed Exhibit 12 showing that the facility from which she
allegedly received a free PT evaluation in June 2020, does not have any records of Petitioner’s visit. See
Ex. 12.
4
On December 11, 2020, Petitioner had an initial acupuncture evaluation. Ex. 7 at
7. She complained of “left shoulder pain that began 24 hours after receiving [an] influenza
injection at her local CVS pharmacy . . . [o]nset 12 months.” Id. at 12. She described the
pain as “aching and burning” and rated such pain at a 6/10. Id. at 10. She received trigger
point treatment and electroacupuncture. Id. at 12. Petitioner attended two additional
acupuncture sessions on December 18 and 23, 2020. Id. at 13.
Petitioner called her PCP on January 11, 2021, reporting ongoing shoulder pain
and inquiring whether she could receive a steroid injection. Ex. 6 at 61. Her PCP told her
an orthopedic surgeon would be the appropriate physician to administer that treatment.
Id.
On January 26, 2021, Petitioner saw an orthopedic surgeon reporting a “1 year
history of left upper arm pain. [She n]otes that [the] pain began after receiving a flu vaccine
in her left shoulder.” Ex. 9 at 6. Petitioner continued, “the pain is a burning/stabbing pain
in the lateral aspect of the shoulder with occasional radiation down the upper arm but
stops at the elbow. Pain is worse with any forward flexion or abduction of the shoulder.”
Id. On examination, Petitioner exhibited limited ROM in the left shoulder. 6 Id. at 8.
Petitioner underwent a diagnostic ultrasound and the impression was noted as: 1)
significant rotator cuff tendinopathy involving supraspinatus, infraspinatus, and
subscapularis; 2) possible partial-thickness tear of the supraspinatus at the anatomic
footprint in the background of tendinopathy; 3) subacromial and subcoracoid bursitis; 4)
subacromial-subdeltoid impingement; 5) tendinopathy long head of the biceps tendon;
and 6) [acromioclavicular] joint arthrosis. Id. Petitioner received a corticosteroid injection
in her left subacromial-subdeltoid bursa. Id. at 9-10.
Approximately five months later, on June 24, 2021, Petitioner followed up with her
orthopedic surgeon. Ex. 10 at 5. The physician represented that Petitioner was last seen
in March 2021, 7 during which time she reported improvement following her steroid
injection. Id. Petitioner stated that “[a]pproximately 2 weeks ago[,]” she “began having
worsened pain on the lateral aspect of the shoulder without radiation . . . [that] is worse
with overhead motions.” Id. She rated her pain at a 5/10. Id. A physical examination
revealed tenderness, along with limited active ROM in internal rotation and limited passive
6 Petitioner highlights that this medical record attributes her condition to the right shoulder. Petitioner
argues, and Respondent agrees, that based on the totality of the other records, this indication was likely in
error and should have referred to the left shoulder, consistent with the bulk of other evidence. Mot. at 8,
n.1; Opp. at 7, n.6. I therefore accept Petitioner’s argument that this notation was intended for the left
shoulder.
7 The records from this March 2021 visit with Petitioner’s orthopedic surgeon do not appear to have been
filed.
5
ROM “in all planes due to pain.” Id. at 6. Petitioner declined a repeat injection and opted
for conservative treatment (ibuprofen, Tylenol, icing, topical gels). Id. No additional
medical records have been filed.
III. Affidavit Evidence
Petitioner attested that “[u]pon receiving the [December 16, 2019] flu shot, [she]
experienced some mild but expected pain and soreness. That night, however, the pain
exponentially grew to an unpredictable intensity.” Ex. 2 ¶ 9. She described a “hot and
burning pain at the injection site” and a “lump on [her] shoulder where the shot was
administered.” Id. Petitioner stated that her pain did not subside in the month after her
vaccination (despite using hot and cold packs and taking ibuprofen), and she sought
treatment at local clinics (in January and February 2020) when “there was no other way
to live through the pain[,]” followed by a visit with her PCP on March 4, 2020. Id. ¶¶ 9-10,
13, 15. At the time of her March 4, 2020 visit, Petitioner was given prednisone which
“helped with the pain and burning while taking it, but the medication did not help solve the
long-term pain . . . once the prescription ran out.” Id. ¶ 15.
Petitioner further attested to ongoing shoulder pain during the gap in treatment
apparent in her medical records. Specifically, in June 2020, she stated that she received
a referral to PT from her PCP for continued shoulder pain. 8 Ex. 2 ¶ 16. The same month,
Petitioner received a free PT evaluation, “where [she] was confirmed to have a rotator
injury.” 9 Id. ¶ 17. Petitioner explained that she did not seek further PT treatment at that
time because she had lost her job as a bus driver due to the COVID-19
Pandemic/shutdown and could not afford the payments. Id. However, because she
regained employment in September 2020, Petitioner was able to begin PT on November
6, 2020. Id. ¶ 19.
As of October 1, 2022, at the time her supplemental affidavit was authored (nearly
three years post vaccination), Petitioner attested that despite her “extensive medical
treatment,” she continues to experience “a dull, aching pain [at rest], but on occasion . . .
[a] sharp, shooting pain[] even when sitting still.” Ex. 11 ¶¶ 5-6. She further reported
ongoing limitations in ROM, and estimated she has “lost half” of her ROM. Id. ¶¶ 5-7, 9,
11. No matter what Petitioner tried, “the pain always seem[ed] to come back.” Id. ¶ 11. As
8 The records from this June 2020 visit or communication with Petitioner’s PCP do not appear to have been
filed.
9 The records from this June 2020 free PT evaluation do not appear to have been filed. It is also interesting
that in Petitioner’s November 6, 2020 PT records wherein she references this free evaluation, Petitioner
alleges the visit occurred in July of 2020, not June as she describes in her affidavit. Compare, Ex. 4 at 12;
with Ex. 2 ¶ 17.
6
a result of her continued pain and restricted ROM, Petitioner described ongoing limitations
with everyday activities, including putting on a seatbelt, driving, reaching for objects,
getting dressed, and sleeping. Id. ¶¶ 5, 7-8; Ex. 2 ¶ 23. She also described diminished
interest in activities she used to enjoy, including crafting, swimming, and hiking. Ex. 2 ¶
23.
IV. Fact Findings and Ruling on 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, 10 a
petitioner must establish that he suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
she received. Section 11(c)(1)(C).
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
10
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).
7
(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.
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
8
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 QAI requirements for a Table SIRVA.
1. Petitioner Has No Prior Left Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise.
2. Onset of Petitioner’s Injury Occurred within 48 Hours of her
Vaccination
The aforementioned medical records, coupled with Petitioner’s affidavits, establish
that Petitioner consistently reported to treaters onset close-in-time to vaccination, that she
sought treatment the month after her December 16, 2019 vaccination, and that she
indeed was experiencing symptoms in the relevant timeframe. See, e.g., Ex. 6 at 4, 24;
Ex. 8 at 17; Ex. 2; Ex. 11.
Respondent argues Petitioner cannot establish onset, in part because her closest
medical record came twenty-eight days post vaccination, on January 13, 2020. Opp. at
10. More so, even though Petitioner described her pain during that visit as beginning “that
9
night after getting her flu shot,” Petitioner’s symptoms “are also more vaguely referenced
as beginning simply ‘since the flu shot.’” Id. (citing Ex. 3 at 4; Ex. 6 at 4).
These objections are ultimately unpersuasive, however, when considered against
the totality of the evidence. First, the records show that Petitioner sought treatment in a
relatively timely manner (i.e., less than a month after vaccination). It is common for SIRVA
petitioners to delay seeking treatment, thinking the injury will resolve on its own, since
patients are often told by medical providers at the time of vaccination to expect some
soreness and pain for a period of time after. Here, however, the delay was not appreciably
long – and the fact that treatment was sought in a relatively short timeframe is supportive
of a close-in-time onset.
Second, Petitioner affirmatively and repeatedly linked her shoulder pain to the flu
vaccine – beginning with the January 13th treatment encounter, at which time she noted
that her shoulder pain “started that night after getting her flu shot,” and that said pain had
been present for “4 weeks.” Ex. 6 at 4. This reporting provides additional support for onset.
Other subsequent medical records also corroborate the contention made in Petitioner’s
affidavit that Petitioner’s pain began within 48 hours of vaccination. See, e.g., Ex. 6 at 24
(a February 24, 2020 note complaining of left shoulder pain that “started December 16[,
2019.]”); Ex. 8 at 43 (a March 3, 2020 VAERS report noting onset on “12/16/19”); Ex. 8
at 17 (a March 4, 2020 note stating “continued left arm pain after receiving a high dose
flu shot on 12/16.”); Ex. 7 at 12 (a December 11, 2020 note reporting onset “24 hours
after receiving [an] influenza injection at her local CVS pharmacy . . . [o]nset 12 months.”).
Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s left shoulder pain more likely than not occurred within
one day of vaccination, and thus within the Table timeframe.
3. Petitioner’s Pain was Limited to her Left Shoulder
I also find that there is a preponderance of evidence that Petitioner’s pain was
limited to her left shoulder. Petitioner’s records consistently report left shoulder pain and
loss of ROM, which are consistent with other SIRVA cases. Petitioner’s medical
procedures were also limited to her left shoulder, and she received treatment for left
shoulder pain. See, e.g., Ex. 4 at 12; Ex. 6 at 4, 61; Ex. 7 at 12; Ex. 8 at 17; Ex. 9 at 6-
10.
Respondent argues that Petitioner’s pain extended to her elbow, and focuses on
several instances when Petitioner described pain radiating down to her elbow from her
shoulder. See Opp. at 11 (citing Ex. 8 at 17, 43; Ex. 9 at 6); see also Ex. 6 at 4. Although
10
there are references to pain radiating down Petitioner’s left arm in some records, the
majority of other records support a finding that Petitioner’s pain was limited to her left
shoulder and, more so, originated from the shoulder. See, e.g., Grossman v. Sec’y of
Health & Hum. Servs., No. 18-13V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb.
15, 2022) (noting that the “third SIRVA criterion is intended to ensure that SIRVA claims
are limited to instances in which ‘the condition is localized to the shoulder in which the
vaccine was administered[,]’ . . . [and] that the gravamen of this requirement is to guard
against compensating claims involving patterns of pain or reduced [ROM] indicative of a
contributing etiology beyond the confines of a musculoskeletal injury to the affected
shoulder”) (emphasis added); Werning v. Sec’y of Health & Hum. Servs., No. 18-267V,
2020 WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that a petitioner
satisfied the third SIRVA criterion where there was a complaint of radiating pain, but the
petitioner was “diagnosed and treated solely for pain and limited [ROM] to her right
shoulder.”). Further, there is no evidence of neuropathic causes for Petitioner’s reports of
radiating symptoms, which can thus be distinguished.
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent contends that Petitioner’s January 2020 left shoulder x-ray
and January 2021 ultrasound show mild to moderate acromioclavicular osteoarthritis/joint
arthrosis. Opp. at 11 (citing Ex. 3 at 6; Ex. 9 at 8).
Respondent’s argument, however, is at odds with Respondent’s agreement that
Petitioner did not have a pre-vaccination history of left shoulder pain or injury.
Alternatively, Respondent contends that Petitioner’s post-vaccination presentation can be
explained by Petitioner’s chronic, degenerative conditions despite her clinical history
suggesting, consistent with a SIRVA, a temporal association with Petitioner’s December
16, 2019 flu vaccination. However, Respondent has failed to show that Petitioner’s
previously asymptomatic degenerative changes otherwise explain her post-vaccination
condition to the exclusion of a SIRVA. Grossman, 2022 WL 779666, at *18; Lang v. Sec’y
of Health & Hum. Servs., No. 17-995V, 2020 WL 7873272, at *13 (Fed. Cl. Spec. Mstr.
Dec. 11, 2020) (explaining that “findings consistent with impingement, rotator cuff tears,
or [acromioclavicular] arthritis do not per se preclude a finding that a Table SIRVA exists.
Rather, the question raised by [R]espondent’s argument is whether [a] petitioner’s own
clinical history indicates that her shoulder pathology wholly explains her symptoms
independent of vaccination.”). Petitioner’s clinical course is consistent with onset of a
SIRVA, more so than with any eventual manifestation of the chronic, degenerative
conditions apparent on diagnostic imaging.
11
B. Severity
While Petitioner has satisfied her burden under the QAI for a Table SIRVA, the
next issue to be resolved is whether Petitioner has demonstrated that she suffered
“residual effects or complications of [the injury alleged] for more than six months after the
administration of the vaccine,” as required for eligibility under the Vaccine Program.
Section 11(c)(1)(D)(i).
There appears to be no dispute that Petitioner received the flu vaccine on
December 16, 2019, and she therefore must demonstrate by preponderant evidence that
her residual symptoms continued for more than six months thereafter from onset. See,
e.g., Herren v. Sec'y of Health & Hum. Servs., No. 13-100V, 2014 WL 3889070, at *2
(Fed. Cl. Spec. Mstr. July 18, 2014); see also Hinnefeld v. Sec'y of Health & Hum. Servs.,
No. 11-328V, 2012 WL 1608839, at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing
case where medical history revealed that petitioner's Guillain-Barré syndrome resolved
less than two months after onset).
To satisfy the six-month requirement, “[a] potential petitioner must do something
more than merely submit a petition and an affidavit parroting the words of the statute.”
Faup v. Sec’y of Health & Hum. Servs., No. 12-87V, 2015 WL 443802, at *4 (Fed. Cl.
Spec. Mstr. Jan. 13, 2015). Rather, a petitioner is required to “submit supporting
documentation which reasonably demonstrates that the alleged injury or its sequelae
lasted more than six months[.]” Id. Although a petitioner cannot establish the length or
ongoing nature of an injury merely through self-assertion, the fact that a petitioner has
been discharged from medical care before the expiration of the six-month period does not
necessarily indicate that there are no remaining or residual effects from his or her alleged
injury. See, e.g., Herren, 2014 WL 3889070, at *3 (finding that a petitioner suffered from
residual symptoms that due to their mild nature did not require medical care).
As discussed above, Petitioner’s treatment records and affidavit suggest that the
onset of her symptoms began within 48 hours of her December 16, 2019 flu vaccination
(likely on the day of vaccination) – or by no later than December 18, 2019. Therefore, she
logically must demonstrate that her left shoulder injury continued to or through June 16,
2020.
Petitioner initially sought treatment for her shoulder injury on January 13, 2020,
and continued until March 4, 2020, approximately three months post onset. There is then
a gap of eight months in the medical records – to November 6, 2020. Respondent
maintains that Petitioner “experienced a period of recovery during that time frame,” and
thus before the June 2020 six-month “deadline.” Opp. at 10. Indeed, Respondent notes
Petitioner’s records reflect that when Petitioner presented to PT treatment in November
of 2020, she reported that “a second round of prednisone ‘helped again,’” and she
12
experienced the “most recent exacerbation” of her shoulder pain “a few months ago.” Id.
(citing Ex. 4 at 12).
The record, however, reveals that Petitioner’s symptoms did continue – even after
March 2020 – and that the variability in symptoms was the product of her prednisone
usage. For instance, during Petitioner’s March 4, 2020 visit (her last appointment prior to
the eight-month gap in treatment), Petitioner complained of “continued left arm pain” and
that steroids she had received from a walk-in clinic had helped “short-term but now the
pain is back with some radiation[.]” Ex. 8 at 17. Petitioner’s PCP thus prescribed her
prednisone to treat such ongoing symptoms. Id. at 19. The fact that Petitioner was
prescribed additional prednisone for her symptoms supports that Petitioner’s pain was
likely not resolved by March 2020, nor was it expected to resolve immediately following
this visit.
Further, Petitioner’s report on November 6, 2020, that the second round of
prednisone “helped again,” paired with reports of a recent exacerbation “a few months
ago,” with “onset due to chronic symptoms” is not inconsistent with continued pain during
the gap in treatment – it merely reflects that Petitioner experienced relief when she was
taking prednisone. See Ex. 4 at 12. It is persuasive that Petitioner reported the same
pattern of symptomology attributable to her prednisone use prior to the gap in treatment
as she did upon her return to care. Compare Ex. 8 at 17 (a March 4, 2020 note describing
her history and reporting steroids “did help short-term but now the pain is back”), with Ex.
4 at 12 (a November 6, 2020 note describing her history and reporting that “[i]nitially the
steroid help[ed] and eliminated the pain . . . the pain returned about a month later. She
was given prednisone again that helped again.”). Petitioner’s reports of pain
commensurate with prednisone use thus provides support for Petitioner’s vaccine-related
pain extending past June 16, 2020.
Also significant to my determination on severity is the fact that when Petitioner did
return to care on November 6, 2020, she consistently related her pain back to her flu shot
she had received the previous year. See, e.g., Ex. 4 at 12 (a November 6, 2020 visit note
wherein Petitioner reported onset in December of last year “after getting a flu shot”); Ex.
5 at 4 (a December 2, 2020 visit note showing Petitioner reported “[l]eft arm pain from
[the] flu shot from last year. [She s]till has pain and weakness in [her] arm”); Ex. 7 at 12
(a December 11, 2020 visit note reflecting onset of left shoulder pain twelve months ago
“that began 24 hours after receiving [an] influenza injection”); Ex. 9 at 6 (a January 26,
2021 visit note showing a complaint of a “1 year history of left upper arm pain . . . that []
began after receiving a flu vaccine in her left shoulder”). I have no reason to doubt the
accuracy of these records, and I find Petitioner’s reports to medical treaters worthy of
appropriate weight. See Cucuras, 993 F.2d at 1528 (finding medical records warrant
consideration as trustworthy evidence as they are “generally contemporaneous to the
medical events,” and “accuracy has an extra premium” because a patient’s “proper
13
treatment is hanging in the balance.”). Such evidence suggests that Petitioner’s vaccine-
related pain was ongoing during the gap in treatment, through the June 2020 six-month
“deadline.”
In addition, Petitioner’s November 6, 2020 record (wherein Petitioner reported
visits and prednisone use during the summer of 2020) also corroborates, albeit weakly,
her affidavit wherein she explains that she sought care for her left shoulder symptoms
during the summer of 2020. Ex. 4 at 12 (noting that she had an in-person visit in July of
2020, along with “some appointments at a local walk-in clinic and given more
prednisone”); Ex. 2 ¶¶ 16-17 (noting she received a referral to PT and a free PT evaluation
in June of 2020). I do not give much weight to these statements in Petitioner’s November
6, 2020 record or the alleged visits during the summer of 2020, as evidence to support
them was never filed for my full consideration. Although Petitioner filed Exhibit 12 (a “no
records” statement issued by the facility from whom Petitioner allegedly received a free
PT evaluation), the record does not confirm whether a visit occurred, whether an
evaluation was performed, or if Petitioner had ongoing shoulder pain. Still, I give the
November 6, 2020 record some weight and, in conjunction with Petitioner’s affidavits, find
Petitioner’s vaccine-related shoulder pain continued for more than six months post
onset. 11
Furthermore, Petitioner’s explanation for why she did not return for treatment for
her left shoulder pain during the nearly eight-month period, despite the existence of pain,
is persuasive and supported by the record. Petitioner attests that she lost her job as a
bus driver in March of 2020, as a result of the COVID-19 Pandemic and related shutdown.
Ex. 2 ¶ 14. Due to her lack of employment and inability to afford insurance payments, as
well as the ongoing concern caused by the Pandemic (which unquestionably impacted
the in-person care individuals were able to receive for at least part of 2020), Petitioner did
not seek treatment during this time. Id. ¶ 17. When Petitioner regained employment in
September 2020, and returned to care in November of that year when she could afford
payments, she noted continued pain. Id. ¶¶ 18-19. This progression is supported by the
record – specifically, that Petitioner’s March 4, 2020 visit was a tele-health visit and thus
coincides with the beginning of the COVID-19 shutdown (which manifested in the United
States most prominently in March 2020). Ex. 8 at 17. I have previously given weight to
11
Petitioner’s November 6, 2020 record does contain two inconsistencies about onset. While it reports that
the onset of her shoulder symptoms was on “Dec[ember] 6th” following her receipt of a flu vaccine, it also
identified onset as June 9, 2020. Ex. 4 at 12. I do not place much emphasis on the December “6th” portion
of the visit notes, however, as it is possible that this is a typographical error since Petitioner’s vaccination
at issue occurred on December 16th. Further, not only is this statement inconsistent with the other notes
from this visit (December “6th” vs. June 9, 2020), but it is also incongruous with Petitioner’s description of
the history of her injury dating back to her December 2019 vaccination – albeit with a recent exacerbation
a few months prior. See id. Despite the records’ inconsistencies, given Petitioner’s reported history of her
injury during this visit, this notation thus provides support for Petitioner’s continuing pain since her
vaccination the previous year.
14
the fact that “at the outset of the [P]andemic, individuals reasonably curtailed (or even
avoided) medical treatment for non-emergency matters, and that in many cases this could
explain a gap in treatment.” Keeling v. Sec’y of Health & Hum. Servs., No. 20-2048V, Slip
Op. 32, (Fed. Cl. Spec. Mstr. Oct. 19, 2022).
Otherwise, the lack of evidence of continuous treatment does not prevent a finding
that severity of the injury persisted beyond six months of onset. See, e.g., Herren, 2014
WL 3889070, at *3. The record clearly establishes that Petitioner’s pain was
commensurate with her use of prednisone and that when this medication ran out, her pain
returned. When that occurred, Petitioner was largely unable to seek continued care due
to the COVID-19 shutdown and her closely connected loss of employment/inability to
afford treatment. Petitioner’s statements in her affidavits regarding ongoing pain do not
contradict the records themselves, but provide additional context of time and
circumstances that lead to her decision to forego formal treatment for eight months. Kirby
v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1384 (Fed. Cir. 2021).
Thus, after consideration of the entire record, the evidence supports a finding –
albeit barely – that severity has been met. (Certainly, however, the treatment gap
underscores that this is a mild SIRVA that did not require surgery – and any damages
that may be awarded in this case will take such factors into account).
C. 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). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in her left
shoulder on December 16, 2019, in Dallas, PA. Ex. 2 ¶ 4; Ex. 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. Ex. 2 ¶ 8; Section 11(c)(1)(E) (lack of prior civil
award). As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA. Additionally, as determined above, Petitioner has established the six-month
severity requirement. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
15
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
V. Damages
The parties have also briefed damages in this case, which is limited to a request
for a past pain and suffering award. Petitioner requests between $70,000.00 and
$80,000.00 for actual pain and suffering. Mot. at 2; Reply Br. at 1. Respondent proposes
an award of no more than $50,000.00 for past pain and suffering. Mem. at 5.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering. 12
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of the injury to be considered. In determining appropriate compensation for pain
and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, affidavits, plus all filings submitted by both
12
I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
16
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
Citing nine prior damages determinations (T.E., Hartman, Decoretz, Bergstrom,
Accetta, Coluccio, Starnes, Mantagas, and Miller), 13 Petitioner requests an award
between $70,000.00 to $80,000.00 for actual pain and suffering. Mot. at 26; Reply Br. at
1, 7. She asserts that the severity of her injury is comparable to, and in the “upper range”
for, the awards from the aforementioned SIRVA cases. Mot. at 22-26. In particular,
Petitioner emphasizes that she has treated with nine PT sessions, at-home exercises,
prescription prednisone and Medrol, an ultrasound guided corticosteroid injection,
acupuncture therapy, a diagnostic ultrasound, an x-ray and MRI, and numerous visits to
her PCP and orthopedist. Id. at 22; Reply Br. at 6, 12-14. She notes that she presented
within 28 days of her vaccination, and “[o]ver a year and a half post-vaccination, [she] still
reported [ROM] limitations, and pain that was a 5/10.” Reply Br. at 6 (citing Ex. 6 at 4; Ex.
10 at 5-6). Petitioner further attests that her pain has continued for more than three years
and will continue “into the indefinite future[,]” as she “has not fully recovered even with
her dedicated attempts at treatment.” Mot. at 25-26. Petitioner contends her pain has
been severe and consistent, and she has experienced severe limitations in ROM “by
50%.” Id. at 26 (citing Ex. 11).
Respondent, by contrast, submits that an award of no more than $50,000.00 is
appropriate for pain and suffering. Mem. at 5. 14 Respondent maintains that although the
parties dispute the severity of the injury given the break in treatment, it is undisputed that
13
T.E. v. Sec'y of Health & Hum. Servs., No. 19-633V, 2021 WL 2935751 (Fed. Cl. Spec. Mstr. May 7,
2021) (awarding $70,000.00 for actual pain and suffering); Hartman v. Sec'y of Health & Hum. Servs., No.
19-1106V, 2022 WL 444456 (Fed. Cl. Spec. Mstr. Jan. 14, 2022) (awarding $75,000.00 for actual pain and
suffering); Decoretz v. Sec'y of Health & Hum. Servs., No. 19-391V, 2021 WL 2346468 (Fed. Cl. Spec.
Mstr. May 7, 2021) (awarding $75,000.00 for actual pain and suffering); Bergstrom v. Sec’y of Health &
Hum. Servs., No. 19-784V, 2021 WL 5754968 (Fed. Cl. Spec. Mstr. Nov. 2, 2021) (awarding $80,000.00
for actual pain and suffering); Accetta v. Sec’y of Health & Hum. Servs., No. 17-1731V, 2021 WL 1718202
(Fed. Cl. Spec. Mstr. Mar. 31, 2021) (awarding $95,000.00 for actual pain and suffering); Coluccio v. Sec’y
of Health & Hum. Servs., No. 19-1684V, 2022 WL 17849579 (Fed. Cl. Spec. Mstr. Dec. 15, 2022) (awarding
$80,000.00 for actual pain and suffering); Starnes v. Sec’y of Health & Hum. Servs., No. 20-1514V, 2023
WL 8110730 (Fed. Cl. Spec. Mstr. Oct. 13, 2023) (awarding $78,000.00 for actual pain and suffering);
Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V, 2023 WL 4573855 (Fed. Cl. Spec. Mstr. June
14, 2023) (awarding $75,000.00 for actual pain and suffering); Miller v. Sec’y of Health & Hum. Servs., No.
20-959V, 2023 WL 4312920 (Fed. Cl. Spec. Mstr. June 1, 2023) (awarding $80,000.00 for actual pain and
suffering).
14 Respondent argues that Petitioner is not entitled to compensation in this case but contends no more than
$50,000.00 is just and fair compensation if the Court finds that Petitioner satisfies the legal prerequisites of
entitlement.
17
Petitioner last sought care for her shoulder injury eighteen months from the date of her
vaccination – on June 24, 2021. Id. at 3 (citing Ex. 10 at 5-6). He highlights this visit
occurred five months after her last orthopedic follow up, and after the filing of the Petition
as well. Id. Petitioner should thus receive only a modest award, given her conservative
treatment course. Id. (citing Ex. 3 at 6; Ex. 8 at 19; Ex. 9 at 9; Ex. 4; Ex. 7 at 5, 7-13).
Respondent cites to four cases (Thomson, Merwitz, Rayborn, and Knauss)15 in support
of his argument. Id. at 3-5.
The filed record in this case establishes that Petitioner suffered a moderate SIRVA
overall, with fairly significant pain upon onset. Particularly relevant to my decision includes
the evidence demonstrating Petitioner’s treatment at a walk-in clinic within one month of
her vaccination, subsequent treatment with prescriptions for a Medrol dosepak and
prednisone, an x-ray, a diagnostic ultrasound (showing significant rotator cuff
tendinopathy involving supraspinatus, infraspinatus, and subscapularis; a possible
partial-thickness tear of the supraspinatus at the anatomic footprint in the background of
tendinopathy; subacromial and subcoracoid bursitis; subacromial-subdeltoid
impingement; tendinopathy long head of the biceps tendon; and acromioclavicular joint
arthrosis), one corticosteroid injection, participation in nine PT sessions, and three
acupuncture sessions. 16 Additionally, while Petitioner’s medical records do not contain
descriptions of her pain on a ten-point scale at her first post-vaccination visits, in records
containing such descriptions she rated her pain ranging from 6-10/10, 8/10, subsequently
decreasing to a 5-6/10, then a 5/10 by the end of her formal treatment course (totaling 18
months with an eight-month gap in treatment). See, e.g., Ex. 4 at 12 (a November 6, 2020
note reporting typical pain at a 6-10/10 but 8/10 at present); Ex. 4 at 16 (a November 10,
2020 note reporting pain at a 5/10); Ex. 7 at 10 (a December 11, 2020 note reporting pain
at a 6/10); Ex. 10 at 5 (a June 24, 2021 note reporting pain at a 5/10). Such notations
support a moderately severe SIRVA, with residual pain at the conclusion of her treatment.
Additionally, Petitioner suffered from reduced ROM that was initially reported soon
after her vaccination. Her reduced ROM was documented on examination at Petitioner’s
15 Thomson v. Sec’y of Health & Hum. Servs., No. 22-234V, 2023 WL 3243536, at *4-5 (Fed. Cl. Spec.
Mstr. May 4, 2023) (awarding $82,000.00 for pain and suffering); Merwitz v. Sec’y of Health & Hum. Servs.,
20-1141V, 2022 WL 17820768, at *6 (Fed. Cl. Spec. Mstr. Nov. 14, 2022) (awarding $50,000.00 for pain
and suffering); Rayborn v. Sec’y of Health & Hum. Servs., No. 18-226V, 2020 WL 5522948, at *12-13 (Fed.
Cl. Spec. Mstr. Aug. 14, 2020) (awarding $55,000.00 for pain and suffering); Knauss v. Sec’y of Health &
Hum. Servs., No. 16-1372V, 2018 WL 3432906, at *7 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding
$60,000.00 for pain and suffering).
16 Petitioner, in making her argument in support of her claim for pain and suffering, also relies on her receipt
of an MRI. See, e.g., Reply Br. at 6. However, it does not appear from the record that Petitioner in fact
received an MRI, and therefore this contention warrants less weight.
18
first post-vaccination visit and consistently thereafter. 17 See, e.g., Ex. 6 at 6 (a January
13, 2020 examination revealing decreased ROM); Ex. 4 at 13 (a November 6, 2020
examination showing decreased ROM); Ex. 9 at 8 (a January 26, 2021 examination
wherein Petitioner exhibited limited ROM); Ex. 10 at 6 (a June 24, 2021 examination
identifying limited active and passive ROM). The medical records thus show that
Petitioner’s limitations in ROM continued to an extent. While said records do not fully
support Petitioner’s assertion made in her affidavit that her ROM was permanently
reduced to 50%, there is evidence in the medical records that her restricted ROM was
ongoing through at least June 2021.
Further, regarding duration, the record supports by preponderant evidence that
Petitioner’s treatment course and ongoing symptoms continued for approximately
eighteen months. Although Petitioner alleges in her affidavit that her pain has continued
for more than three years, I cannot fully accept this argument, as there are no
contemporaneous treatment records after June 24, 2021 (eighteen months post
vaccination). While I credit Petitioner’s assertions in her affidavit that she has continued
to experience residual symptoms of her SIRVA, including pain and limited ROM, her
overall recovery has been fairly good overall – a fact supported by her lack of continued
formal treatment contained in the medical records. Indeed, Petitioner’s assertions in her
affidavit underscore that her lingering symptoms, although present, were manageable
with conservative treatment without requiring her return to further formal treatment. I thus
find the duration of Petitioner’s SIRVA was approximately eighteen months.
The severity and duration of Petitioner’s pain, although significant (at times) and
fairly lengthy, is offset by the (at least one) long temporal gap in her treatment. When
medical records filed for petitioners in the Program reveal comparable gaps, I weigh the
reason for the gaps against evidence of a petitioner’s purported pain. As discussed
above, the timing and explanation for Petitioner’s gap in treatment can be explained by
the COVID Pandemic. Otherwise, I typically deem the decision to forego treatment as
evidence that heavily underscores the mildness of the injury, since it could be endured
without medical assistance for periods of time.
The overall severity and duration of the injury at issue herein is ultimately
distinguishable from Respondent’s cited cases. For instance, in Merwitz, the petitioner
waited three months before seeking care, treated for a total of eight months, often
described her pain as intermittent, and had almost full ROM but stiffness at the time of
her last visit. 2022 WL 17820768, at *6-15. Likewise, the Rayborn petitioner did not seek
17 Petitioner did have one treater note on examination on February 24, 2020, that she exhibited “[f]ull
shoulder ROM, but [] pain at end of movement with abduction.” Ex. 6 at 25. Considering the bulk of other
evidence of examinations showing limited ROM, I do not find this notation detracts significantly from
Petitioner’s purported decreased ROM.
19
treatment for four months post vaccination and treated for a total of nine months with a
pain level ranging from 2-6/10. 2020 WL 5522948, at *12-13. Finally, the petitioner in
Knauss also did not seek care until three months post vaccination, had full ROM within
five months post onset, rated the pain at a 1/10 (at most), and like Petitioner, had a
significant gap in treatment. 2018 WL 3432906, at *7. While Knauss is the closest of
Respondent’s cases to Petitioner’s factual circumstances (given the gap in treatment),
the severity and duration of Petitioner’s injury merits a higher award than each of these
cases. Petitioner sought care within one month of vaccination, and has proven ongoing
symptomology eighteen months post vaccination.
The cases relied upon by Petitioner are, by contrast, more instructive – but the
severity of Petitioner’s injury does not quite warrant the $80,000.00 sum requested by
Petitioner. For instance, Petitioner and the petitioner in Bergstrom experienced moderate
and severe pain levels, and both petitioners treated for at least one year. See 2021 WL
5754968. However, the Bergstrom petitioner received objectively more treatment than
Petitioner – two cortisone injections and twenty-one sessions of PT – approximately
double Petitioner’s one injection and nine PT sessions. See id. Similarly, the Miller
petitioner received two cortisone injections and underwent twenty-four PT sessions. See
2023 WL 4312920. The Miller petitioner also treated for ten months but experienced an
additional six months of pain. See id. Although Petitioner has experienced pain and
residual effects of her SIRVA for longer than the Bergstrom and Miller petitioners, her
more conservative treatment course speaks to a slightly lower award.
Indeed, the severity of Petitioner’s injury is more akin to other cases she relied
upon, where $75,000.00 for past pain and suffering was awarded. See Hartman, 2022
WL 444456; see also Decoretz, 2021 WL 2346468. In fact, this case is most factually
analogous to Mantagas. In Mantagas, the petitioner sought treatment within two months
of vaccination, rated his pain at a 6/10 (moderate level) throughout his treatment,
attended thirteen PT sessions, had a low-grade linear tear, and treated for eleven months
with “moderately severe pain,” that persisted for another eighteen months, including a
substantial gap in treatment due to the COVID Pandemic. Mantagas v. Sec’y of Health &
Hum. Servs., No. 20-1720V, 2023 WL 4573855 (Fed. Cl. Spec. Mstr. June 14, 2023). I
found Mantagas experienced a manageable, ongoing injury for this entire duration –
similar to Petitioner here. I will award slightly more than the petitioner in Mantagas, due
to Petitioner’s documented significant pain levels (6-10/10 and 8/10) nearly one year post
vaccination on November 6, 2020, her receipt of a cortisone injection, three sessions of
acupuncture treatment, and her residual pain and ROM restrictions more than eighteen
months post onset.
20
As noted above, I have concluded that Petitioner suffered a moderately significant
injury, which was initially complicated by the Pandemic, and persisted over a longer
period of time with lingering symptoms. Based on review of the case evidence and in my
experience, I find that $77,000.00 is an appropriate award for Petitioner’s actual pain and
suffering.
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that the onset of Petitioner’s injury, specifically shoulder pain, was within 48 hours
of her vaccine, her pain was limited to her left shoulder, and there is no alternate
condition that would explain Petitioner’s symptoms. Further, based on the
evidence of record, I find that Petitioner 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, $77,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 18
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
21