# Spiller v. Secretary of Health and Human Services

> United States Court of Federal Claims · August 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11118994

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 12, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11118994

## How later opinions describe it (automated extraction)

- explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1939V

DANIELLE SPILLER, Chief Special Master Corcoran

Petitioner,
v. Filed: July 10, 2025

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

John Beaulieu, Siri & Glimstad, LLP, Louisville, KY, for Petitioner.

Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1

On December 30, 2022, Danielle Spiller 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 Table shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on
October 30, 2021. Petition at 1. The case was assigned to the Office of Special Masters
(“OSM”)’s Special Processing Unit (“the SPU”).

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).
The parties’ settlement discussions reached an impasse, and they have fully
briefed entitlement and damages.3 For the reasons set forth herein, I find that Petitioner
is entitled to compensation, and I award damages in the amount of $77,566.46
(representing $75,000.00 for pain and suffering, and $2,566.46 for past
unreimbursable expenses).

I. Factual Evidence

A. Medical Records

Upon receiving the at-issue vaccine on October 30, 2021, Petitioner Danielle
Spiller was 43 years old with a non-contributory medical history. See, e.g., Ex. 2 at 5 – 6.
Medical records reference her care of two children (aged 10 and 13) and work as a
preschool teacher. See, e.g., Ex. 4 at 98; Ex. 14 at 54, 39, 22.

Petitioner received the flu vaccine in her left deltoid, at a CVS pharmacy. Ex. 3 at
2. The next medical encounter (for any reason) occurred thirty (30) days later, on
November 29, 2021, at which time she met with a sports medicine physician4 for a new
complaint of left shoulder pain. She reported: “just over a month ago she had a flu vaccine
and has had pain in the shoulder ever since… pain with laying on the shoulder and losing
sleep… has los[t] AROM [active range of motion] and cannot go above 90 [degrees]…
Pain is only mild at this point 3 – 4 out of 10.” Ex. 4 at 55 – 56.

On physical examination, the shoulder had a painful arc of motion and positive
impingement signs. Ex. 4 at 56. An x-ray was unremarkable. Id. The assessments were
acute pain, bursitis, synovitis, impingement syndrome, and tendinitis. Id. at 57. The sports
medicine physician prescribed a limited course of the non-steroidal anti-inflammatory
drug (“NSAID”) Meloxicam, encouraged formal physical therapy (“PT”), and deferred a
steroid injection based on an expectation that Petitioner was “getting better.” Id.

But on December 13, 2021, the sports medicine physician recorded that Petitioner
had ongoing shoulder pain despite the trial of Meloxicam. Ex. 4 at 38. An exam found
deltoid tenderness, “minimal” weakness, and positive impingement signs. Id. at 39. A
steroid injection was administered to the subacromial bursa. Id. at 40.

3 Rule 4(c) Report filed Oct. 2, 2024, ECF No. 42; Petitioner’s Entitlement Brief filed Dec. 17, 2024, ECF

No. 46; Petitioner’s Damages Brief filed Jan. 17, 2025; Respondent’s Response filed Feb. 20, 2025, ECF
No. 50; Petitioner’s Reply filed Mar. 7, 2025, ECF No. 51 (accompanied by Petitioner’s supplemental sworn
declaration as Ex. 23, ECF No. 51-1).
4 This sports medicine physician had previously treated Petitioner for unrelated concerns. See generally

Ex. 4 at 72 – 105.

2
On January 4, 2022, Petitioner reiterated that her left shoulder pain had “started
after getting a flu vaccine.” Ex. 5 at 5. The steroid injection had not provided “any relief”;
her pain was currently “sharp” and rated 10/10. Id. An exam of the shoulder found
tenderness, weakness (4/5), positive impingement signs, and pain in all planes of range
of motion. Id. at 6. The sports medicine physician prescribed prednisone to “help calm
down her shoulder inflammation.” Id. at 7. He also provided home exercises and a
Theraband, because “with [Petitioner’s] busy schedule and being a full-time mom as well
as working, she has not had time to go to” formal PT. Id.

On February 3, 2022, the sports medicine physician reviewed that Petitioner’s pain
had not been relieved by the steroid injection or oral prednisone, she was “very upset,”
and “this all started after the flu vaccine.” Ex. 4 at 23. A focused musculoskeletal exam
found pain, weakness, positive impingement signs, and “mild” restrictions to range of
motion (“ROM”).5 Id. at 24. The physician commented that he had previously seen this
kind of “post-vaccine inflammation in the shoulder.” Id. at 25. To guide further treatment,
he ordered an MRI, which visualized a small foci of bone edema and mild undersurface
tearing of the supraspinatus tendon (within the rotator cuff). Id. at 6.

On February 15, 2022, the sports medicine physician recorded that Petitioner was
still in “a lot of pain” and “really not happy with her outcome.” Ex. 4 at 8. He prescribed
the NSAID Celebrex (with precautions to avoid exacerbating Petitioner’s underlying
ulcerative colitis) and again encouraged formal PT. Id. at 9.

Instead on February 24, 2022, Petitioner met with a new orthopedist. Ex. 6 at 9.
She recounted that her left shoulder pain had “started around the end of October,” and
specifically one day after her vaccination. Id. None of the previous treatment attempts
had worked, she had lost ROM, and she could not perform previous activities of daily
living (“ADLs”). Id. On exam, Petitioner’s shoulder was diffusely tender, with restricted
ROM (elevation 120 degrees, abduction 90 degrees, external and internal rotation 30
degrees)6 but full strength and no impingement signs. Id. The orthopedist opined that
Petitioner’s primary injury was capsular tightness with potentially secondary
impingement/ adhesive capsulitis. Id. at 10. Upon the orthopedist’s administration of an
intraarticular steroid injection, Petitioner reported immediate pain relief and increased
ROM. Id. The orthopedist taught her “sleeper stretches” and also referred her for
“aggressive” formal PT. Id. He noted on February 24th (and on subsequent dates) that

5 The sports medicine physician did not document specific degrees of ROM.

6 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in

abduction, and 90 to 100 degrees in external rotation. Cynthia C. Norkin and D. Joyce White,
MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 88 (F. A. Davis Co., 5th ed.
2016).

3
surgical intervention on Petitioner’s shoulder was a possible option, but only if and when
more conservative measures failed. Id.

At the February 28, 2022 PT initial evaluation, Petitioner noted that her left
shoulder pain and ROM loss began “right away” after her October 30 th vaccination. Ex. 6
at 6. The physical exam found restricted ROM (elevation 100 degrees, abduction 80
degrees, external rotation 25 degrees, internal rotation 30 degrees), and weakness (2+
to 3+/5). Id. Petitioner was assessed with adhesive capsulitis and instructed on home
exercises which she was supposed to perform in addition to attending formal PT sessions
three times a week for the next four weeks. Id. at 6 – 7.

At an April 7, 2022 follow-up, the orthopedist recorded: “[s]he states the shoulder
felt great the day of the injection but the pain came back. The shoulder is better but not
100%. She still has problems with certain movements. She attended one PT session and
then had COVID and was out of March [sic?]. She [w]as able to do some stretches at
home that PT showed her. While recovering from COVID she was placed on an oral
steroid7 and that helped the shoulder pain. But since she has been off of it [the steroid]
the pain is creeping back.” Ex. 6 at 3. The exam findings were identical to that from six
weeks earlier. Id. The orthopedist opined that Petitioner was “on the right track,” and
would continue home exercises. Id. at 4.

At an August 25, 2022 follow-up, the orthopedist recorded that despite Petitioner’s
adherence to the home exercise program, she still “[wa]sn’t back to 100%.” Ex. 7 at 2.
The exam found improved, but still somewhat restricted ROM (elevation 150 degrees,
abduction 130 degrees, external rotation 40 degrees, internal rotation 20 degrees),
normal strength (5/5), full strength, and no impingement. Id. at 2 – 3. The orthopedist
stated that Petitioner was “seeing a lot of improvement but still has a way to go,”
warranting continued home exercises. Id.

After a long treatment gap, the orthopedist recorded at an April 9, 2024 follow-up
that Petitioner “doesn’t feel the shoulder has ever been perfect. She has had limitations
for several years now.” Ex. 18 at 9. Repeat x-rays were normal, the physical exam findings
were identical, and the orthopedist administered a glenohumeral steroid injection. Id. at
10 – 11.

Finally, two years and nearly seven months post-vaccination, on May 21, 2024,
the orthopedist recorded that Petitioner had an ongoing left shoulder injury, with pain

7 Petitioner has not filed any medical records confirming this reported infection, or its treatment with oral

steroids.

4
particularly while sleeping, that was not relieved by the most recent steroid injection. Ex.
19 at 8. The physical exam findings were again identical to those at the previous two
encounters. Id. at 8 – 9.8 The orthopedist suggested an arthrogram prior to any
consideration of surgical intervention, but no further records have been filed.

B. Testimonial Evidence

Petitioner maintains9 that her left shoulder pain began within 48 hours post-
vaccination; after that pain persisted for several weeks, she secured an appointment with
her established sports medicine physician. Ex. 1 at ¶¶ 6 – 8. She describes ongoing
disruptions with activities of daily living (e.g. driving, getting dressed, sleeping on her left
side), caring for her family and home, and working as a preschool teacher. She can no
longer lift children or heavy objects, or lift overhead. Id. at ¶¶ 14 – 16; see also Ex. 23 at
¶¶ 2 – 4. She is concerned that the injury will never heal, or even worsen as she ages.
Ex. 23 at ¶ 6. She states that the numerous pain medications and steroid injections have
provided “little” relief and that the only other option is invasive surgery, but she is
pessimistic that any surgery would succeed, and she has unspecified “personal reasons”
for wanting to avoid it. Ex. 1 at ¶¶ 13, 17; Ex. 23 at ¶ 5. Petitioner references her March
2022 bout with COVID and continued performance of home exercises, but not the
prospect of formal PT or any other treatment measures.

Petitioner’s husband and her mother recall that her left shoulder pain began within
a day after the October 30, 2021 vaccination. These lay witnesses also endorse the view
that Petitioner has suffered ongoing pain and limitations that have not been relieved by
her treatment to date. See generally Exs. 20, 21.

8 Each record reads, in relevant part:

Left shoulder:…
Palpation: diffusely, tender, ant/post capsule.
Passive ROM: There is pain with all directions of motion at the end points including ER
with elbow at the side, forward elevation (deg):, 150, abduction, 130, external rotation at
the side (deg):, 40, internal rotation at the side: LS jxn behind the back GIRD testing shows
20 deg IR at 90 deg abd vs. 50 deg. on the right.
Active ROM: same as passive ROM.
Strength testing: 5/5 in all planes within pain-free motion arc.
Neer’s impingement sign is negative.
Hawkin’s impingement sign is negative…

Ex. 7 at 2 – 3 (August 25, 2022 orthopedics physical exam); accord Ex. 18 at 10 (April 9, 2024) and Ex. 19
at 9 (May 21, 2024).
9 Petitioner completed an affidavit in December 2022, Ex. 1. She submitted a statement sworn under penalty

of perjury in March 2025, Ex. 23. See 28 U.S.C.A. § 1746 (providing that such a declaration may be afforded
like force and effect as a notarized affidavit).

5
II. Factual Findings and Ruling on Entitlement

A. Legal Standards

Before compensation can be awarded under the Vaccine Act, a petitioner must
preponderantly demonstrate all matters required under Section 11(c)(1), including the
factual circumstances surrounding his or her claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section
13(a)(1). Petitioner’s allegations must be supported by medical records or by medical
opinion. Id.

To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “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 &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“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 & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).

In addition to requirements concerning the vaccination received and the lack of
other award or settlement,10 a petitioner must establish that he or she suffered an injury
meeting the Table criteria, in which case causation is presumed, or an injury shown to be
10 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered

either in the United States and its territories or in another geographical area but qualifying for a limited
exception and has not filed a civil suit or collected an award or settlement for his or her injury. Section
11(c)(1)(A)(B)(E).

6
caused-in-fact by the vaccination he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
or condition for more than 6 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 a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;

(ii) Pain occurs within the specified time-frame;

(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).

7
42 C.F.R. § 100.3(c)(10).

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.

B. Factual Finding on Onset of Shoulder Pain

At issue is whether Petitioner’s left shoulder pain began within forty-eight (48)
hours of the October 30, 2021 vaccination. 42 C.F.R. §§ 100.3(a)(XIV)(B), (c)(10)(ii).
Preponderant evidence supports such a finding.

Respondent mainly relies on the fact that medical records created close-in-time to
vaccination do not expressly establish a Table onset. Response at 6. But the records
contain statements uniformly relating Petitioner’s shoulder pain back to the vaccination,
with language that can be reasonably understood to refer to a 48-hour timeframe. See,
e.g., Ex. 4 at 55 (“has had pain in the shoulder ever since” vaccination); Ex. 5 at 5 (pain
“started after getting a flu vaccine”); Ex. 4 at 23 (“this all started after the flu vaccine”); Ex.
6 at 9 (“received the flu shot the day before the pain started”). Such language has been
consistently interpreted to mean “within 48 hours of vaccination.” Flowers v. Sec’y of
Health & Hum. Servs., No. 20-285V, 2024 WL 2828211, at *11 (Fed. Cl. Spec. Mstr. May
8, 2024) (internal parentheticals and citations omitted), mot. for rev. den’d, 173 Fed. Cl.
613 (2024). Indeed here, Petitioner notes that “since” is defined as “a definite past time
until now.” Entitlement Brief at 9.11 And what Petitioner was referring to was clearly her
vaccination. Accordingly, Petitioner did in fact identify onset based on the date of
vaccination as a reference point. Id.

Moreover, there is no evidence suggesting a shoulder pain onset anywhere
outside of the Table timeframe, and the medical records’ onset descriptions are confirmed
by Petitioner and the two supporting witnesses’ accounts. For all of the foregoing reasons,
Petitioner has established a shoulder pain onset within the Table timeframe.12

11 Citing Merriam-Webster Dictionary, Since, https//www.merriam-webster.com/dictionary/since (last
accessed July 9, 2025).

12 At best, Respondent (in the Rule 4(c) Report at 6) identified an apparent conflict between Petitioner’s

affidavit description of her initial pain being “excruciating” and the contemporaneous medical records which

8
C. Factual Findings on Remaining SIRVA QAI Criteria and Statutory
Requirements

Petitioner’s success in meeting the remaining QAI requirements is not disputed,13
and I find that they have been preponderantly satisfied. The record does not contain
preponderant evidence that Petitioner had a history of shoulder pain or any other
condition that would explain her post-vaccination symptoms. She exhibited reduced
ROM, and her pain and ROM limitations were limited to the vaccinated shoulder.

The statutory requirements applicable to all claims are also preponderantly
established. Petitioner received a covered vaccine in the United States. Ex. 3 at 2. She
experienced residual effects of her injury for more than six months. Ex. 7 at 2 – 4. And
she states that she has never received an award or settlement of a civil action for her
vaccine-related injury, nor has she filed a civil action. Ex. 1 at ¶ 19. Thus, Petitioner is
entitled to compensation.

III. Pain and Suffering Damages

A. Legal Standard

In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Sections I – II of Timberlake v. Sec’y
of Health & Human Servs., No. 20-1905V, 2025 WL 721730 (Fed. Cl. Spec. Mstr. Feb.
19, 2025).

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 $250,000.00,” in addition to certain unreimbursable
expenses resulting from the vaccine-related injury. Section 15(a)(1), (a)(4). The petitioner
bears the burden of proof with respect to each element of compensation requested.
Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23
(Fed. Cl. Spec. Mstr. Mar. 18, 1996). Factors to be considered when determining an

reflect at 30-day initial treatment delay, plus an initial pain rating of just 3 – 4/10. Those differing
characterizations of the pain are more relevant to quantifying Petitioner’s actual pain and suffering, which
is discussed further below.

13 Respondent does not raise any arguments concerning the remaining SIRVA Table QAI requirements or

statutory requirements. See generally Rule 4(c) Report and Response.

9
award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury;
and 3) duration of the suffering.14

B. Appropriate Compensation for Pain and Suffering

In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.

The evidence establishes that Petitioner’s initial shoulder pain was not so severe
to prompt immediate emergency attention – but Petitioner still promptly sought an
appointment with a known sports medicine specialist, which actually occurred 30 days
post-vaccination. Her pain was variable (ranging from 3 – 4/10 at the sports medicine
initial evaluation, to 10/10 one month later) but persistent for months, with no lasting relief
from various pain measures (over-the-counter medications, Meloxicam, and Celebrex)
and steroid injections administered to two different areas of the shoulder. MRI imaging
suggested a supraspinatus tendon tear. The medical records also reflect that Petitioner’s
obligations to her family and preschool teaching, and one bout with COVID, made it more
difficult to access formal PT – but after she performed home exercises for several months,
by the August 25, 2022 orthopedics follow-up, her left shoulder’s ROM was somewhat
improved, but still restricted. The record before me thus establishes that Petitioner’s
SIRVA pain and suffering was moderately severe for the first ten months.

Her subsequent course is more difficult to parse, in light of the significant treatment
gap, and the recordation at her two orthopedics follow-up appointments in April and May
2024. The orthopedics records do not detail Petitioner’s ongoing “limitations,” carrying
forward much of the clinical history, and the physical exam findings may have been copied
as well (given the identical wording). Thus, the orthopedics records establish that
Petitioner had some ongoing shoulder injury that justified a third steroid injection in April
2024 – but not that the injury remained as severe as before. Petitioner, her husband, and
her mother’s sworn statements do not bridge that gap – especially because they are lay
witnesses, and they do not address the potential of Petitioner, for example, reattempting
formal PT long after her recovery from her March 20222 COVID infection.

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

May 14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).

10
Overall, Petitioner’s request for $85,000.00 (see generally Damages Brief)15 is not
unreasonable based on the evidence and past practice. There are some distinctions with
her comparable cases, however. The Parsons petitioner was awarded $90,000.00 even
though he did not undergo surgery, because his injury was “noteworthy for its duration,
spanning over five years” and it impacted his work as a veterinarian and maintaining a
family farm. 2023 WL 9060490, at *9 – 10. Ms. Spiller’s injury has not been documented
to have lasted nearly as long, and she has been able to modify her work as a preschool
teacher.

Havis is a better comparable. That petitioner’s formal treatment began earlier (14
days post-vaccination), her MRI findings were more extensive (several tears,
tendinopathy, bursitis, and degenerative changes), she attended 7 formal PT sessions,
and she was wholly unable to work (performing and teaching music) during the acute
course. 2024 WL 5039036, at *2 – 4. But the Havis petitioner received only one injection,
and moreover I concluded that her “injury had substantially improved by ten months post-
vaccination.” Id. at *5. In contrast, Ms. Spiller has (somewhat) better evidence of residual
effects persisting for a year and a half longer, which warranted another steroid injection
(her third, in total).

Respondent proposed a much lower award of $25,000.00. Response at 7, 9, 12.
But this number “factor[ed] in the deficiencies in the evidence that prevented Respondent
from conceding entitlement to compensation.” Response at 12.16 That number does not
recognize that the case is now formally in the damages phase.
Respondent also urges rough comparison to Leach,17 followed by a downward
departure, on the grounds that Ms. Spiller’s SIRVA “mostly resolved” more quickly, “within
about five months” – based on the April 7, 2022 orthopedics follow-up when she
subjectively reported being “better but not 100%.” Response at 13, referencing Ex. 6 at 3
– 4. But as noted above, Petitioner’s objective improvement (specifically with ROM) was

15 Citing Parsons v. Sec’y of Health & Hum. Servs., No. 19-1150V, 2023 WL 9060490 (Fed. Cl. Spec. Mstr.

Nov. 30, 2023) (awarding $90,000.00 for past pain and suffering); Smith v. Sec’y of Health & Hum. Servs.,
No. 21-0409V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Dec. 11, 2023) ($77,000.00); Havis v. Sec’y of
Health & Hum. Servs., No. 21-0583V 2024 WL 5039036 (Fed. Cl. Spec. Mstr. Nov. 1, 2024) ($75,000.00).

16 My order had specified: “Each party’s briefing shall set forth his or her position on whether Petitioner has

established a Table SIRVA (focusing on the issue raised by Respondent), and assuming that Petitioner so
prevails, the value of the case…” Scheduling Order entered Nov. 18, 2024, ECF No. 45 at 1 (emphasis
added). In future SPU cases when I order briefing of entitlement for a Table injury, and in the event that the
petitioner so prevails, the appropriate damages award, Respondent is exhorted to propose a “full-value”
figure.

17 Leach v. Sec’y of Health & Hum. Servs., No. 21-0108V, 2024 WL 3358552 (Fed. Cl. Spec. Mstr. June

6, 2024) (awarding $37,500.00 for actual pain and suffering).

11
not documented until the next orthopedics appointment on August 25, 2022. Ex. 7 at 2 –
3. The latter is a more reliable marker. She also had a more acute course with multiple
consultations attempts at pain control, more steroid injections, and more extensive MRI
findings (in contrast with the Leach case, in which Respondent disputed whether the
statutory severity requirement had been met due to a long gap in treatment).

Based on the record as a whole and the proposed comparable cases, I find that
$75,000.00 represents a fair pain and suffering award in this case.

IV. Past Unreimbursable Expenses

Section 15(a)(1)(B) of the Vaccine Act provides that Petitioner may be awarded
actual expenses which resulted from the vaccine injury, were incurred by or on her behalf,
and were for the “diagnosis, medical or other remedial care, rehabilitation ... determined
to be reasonably necessary.”

Petitioner seeks $2,824.46 for past medical expenses. Damages Brief at 1, 9;
Reply at 3 (withdrawing one expense unrelated to the vaccine injury). In arguing for
reimbursement of only $618.51, Respondent raises two concerns. Response at 14. First,
Respondent notes that two medical bills do not correspond to treatment for Petitioner’s
SIRVA. Response at 14.18 This concern was not answered by Petitioner, see generally
Reply, or my own independent review of the evidence, so those expenses will not be
reimbursed.

Respondent also contends that Petitioner has not established her actual payment
of several other medical expenses related to her SIRVA. Response at 12.19 In reply,
Petitioner has sworn under penalty of perjury that she does not have proof of receipt, but
she has paid these expenses off as of March 7, 2025. Ex. 23 at ¶ 7. Based on her sworn
statement, I find it is appropriate to include them – bringing the reimbursed medical
expenses total to $2,566.46.

Conclusion

For all of the reasons discussed above and based on consideration of the record
as a whole, I find that Petitioner is entitled to compensation for a Table SIRVA
following her October 30, 2021 vaccination.

18 Citing Ex. 22 at 2 (December 17, 2021 date of service, costing $60.00); id. at 1 (January 3, 2022 date

of service, costing $198.00).
19 Citing Ex. 22 at 3 (patient balance of $798.07), id. at 7 ($981.20), id. at 8 ($168.68).

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Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum of $77,566.46 (representing $75,000.00 for pain and
suffering20 and $2,566.46 for past unreimbursable expenses) to be paid through an
ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to
Petitioner. This amount represents compensation for all damages that would be available
under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with this Decision.21

IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

20 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to

net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
21 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11118994. Public record. Not legal advice.