Opinion

Brunell v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Mar 27, 2026
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 39.9%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 24-0421V

DANIEL BRUNELL, Chief Special Master Corcoran

Petitioner,

v. Filed: February 23, 2026

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.

Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On March 19, 2024, Daniel Brunell filed a Petition seeking compensation under

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

“Vaccine Act”); see Section 11(c)(1)(D)(i). Petitioner alleges a right-sided shoulder injury

related to vaccine administration (“SIRVA”) following his receipt of a seasonal influenza

(“flu”) vaccine on October 17, 2022. Petition at Preamble, ¶ 7; 42 C.F.R. §§ 100.3(a),

(c)(10)(iii). The claim was assigned to the Special Processing Unit (“SPU”) of the Office

of Special Masters in August 2024.

1 Because this opinion 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 opinion will be available to anyone with access to the internet. In

accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other

information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I

agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).

For the reasons set forth below, I find that the vaccine at issue was more likely

than not administered in Petitioner’s right shoulder/arm, as alleged. In the absence of any

other objections from Respondent, and based on an independent review of the evidence,

I conclude that Petitioner has established entitlement to compensation for a Table SIRVA.

I. Procedural History

After the claim’s assignment to SPU, Respondent formally opposed compensation

for a right-sided SIRVA, because the vaccine administration form (“VAR”) indicated a “left

arm” situs. Rule 4(c) Report filed Dec. 9, 2024, ECF No. 15, at 6. I ordered Petitioner to

show cause why his claim should not be dismissed for that reason. Show Cause Order

filed May 20, 2025, ECF No. 17. Petitioner did not file any other evidence bearing on situs

or entitlement.3 The parties completed briefing, rendering the case ripe for adjudication.

See Petitioner’s Response to Order to Show Cause filed Aug. 7, 2025, ECF No. 21

(hereinafter “Brief”); Respondent’s Response filed Sept. 22, 2025, ECF No. 22,

Petitioner’s Reply filed Oct. 7, 2025, ECF No. 23; Joint Status Report filed Jan. 28, 2026,

ECF No. 25.

On February 20, 2026, I held an expedited entitlement hearing on the disputed

situs issue. After some discussion and questioning, I issued an oral ruling constituting my

findings of fact and conclusions of law, pursuant to Section 12(d)(3)(A). An official

recording of the proceeding was taken by a court reporter, although a transcript has not

yet been filed in this matter. I hereby fully adopt and incorporate that oral ruling as officially

recorded.

II. Authority

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a

preponderance of the evidence, the matters required in the petition by Vaccine Act

Section 11(c)(1). In addition to requirements concerning the vaccination received, the

duration and severity of petitioner’s injury, and the lack of other award or settlement, 4 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).

3 Petitioner filed additional medical records as Ex. 11 on August 6, 2025, ECF No. 19. Those records pertain

to unrelated medical conditions and they are “not relevant to Petitioner’s SIRVA claim” according to

Respondent. Response filed Sept. 22, 2025, ECF No. 22.

4 In summary, a petitioner must establish that he or 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 an injury or its residual effects for more than six months, died from the injury,

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

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

2

Section 11(c)(1) also contains requirements concerning the type of vaccination

received and where it was administered, the duration or significance of the injury, and the

lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With

regard to duration, a petitioner must establish that he suffered the residual effects or

complications of such illness, disability, injury, or condition for more than six months after

the administration of the vaccine. Section 11(c)(1)(D).

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

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

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

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

hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A

vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests

all of the following:

(i) No history of pain, inflammation or dysfunction of the affected shoulder

prior to intramuscular vaccine administration that would explain the alleged

signs, symptoms, examination findings, and/or diagnostic studies occurring

after vaccine injection;

(ii) Pain occurs within the specified time frame;

(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).

3

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

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).

I am resolving the fact dispute in question on the filed record. The Vaccine Act and

Rules not only contemplate but encourage special masters to decide many matters on

the papers where, in the exercise of their discretion, they conclude that doing so will

properly and fairly resolve the issue. See 42 U.S.C. § 12(d)(2)(D); Vaccine Rule 8(d).

Indeed, the decision to rule on the record in lieu of a hearing has been affirmed on appeal.

Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020);

4

Hooker v. Sec’y of Health & Hum. Servs., No. 02-472V, 2016 WL 3456435, at *21 n.19

(Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where special masters

decided cases on the papers in lieu of hearing and those decisions were upheld).

III. Finding of Fact

The record preponderantly supports a finding that the October 17, 2022

vaccination was administered in Petitioner’s right arm. I make these findings after a

complete review of the record to include all medical records, testimonial evidence,

Respondent’s Rule 4(c) Report, and both parties’ briefing and argument at the February

20, 2026 expedited hearing. Specifically, I base my findings on the following evidence:

• Petitioner was born in 1968. He had no history of right shoulder pain or dysfunction.

See generally Exs. 3-8; Ex. 1 at ¶¶ 11-13.

• Petitioner received the at-issue flu vaccine at a Roe Family HealthMart Pharmacy

in Utah on October 17, 2022. Ex. 2 at 1. A printed vaccine consent and

administration form (hereinafter the “VAR”) reflects Petitioner’s handwritten patient

information and signature, then the following information:

Ex. 2 at 1.

• Eight days post-vaccination, on October 25, 2022, Petitioner called the

Intermountain Health Family Medicine Clinic requesting an urgent appointment for

“Shoulder pain since receiving flu vaccine on 10/17/22.” Ex. 3 at 1461

(emphasis added).

• Fourteen days post-vaccination, on October 31, 2022, Petitioner attended the first

in-person medical appointment for this complaint. The appointment was apparently

brief – with the record (made by an intermountain registered nurse) reading, in full:

“Pt reports pain in R shoulder area post-flu immunization injection 2 weeks

prior, resulting in limited ROM d/t pain. No external s/sx of injury or damage

noted. [Primary care physician (“PCP”)] briefly evaluated pt RUE movement and

advised to take anti-inflammatory meds round the clock for a couple of days along

5

with ROM exercises and return to clinic in 2 weeks. RN scheduled pt for return visit

with [PCP].” Ex. 3 at 2431 (emphasis added).

• At the November 15, 2022 follow-up appointment with the PCP, Petitioner reported

that the October 17th vaccine had been given “right into the tendon… after that

he had a burning pain in his shoulder with movement, this has persisted off

and on since that time…” Ex. 3 at 2354 (emphasis added). Petitioner denied

having “any fall trauma or other injury” (although he acknowledged “using his

shoulder a lot” while remodeling his home and working as a long-haul truck driver).

Id. The PCP assessed “right anterior shoulder pain” potentially representing

arthritis, but he recommended further evaluation by an orthopedics specialist. Id.

• At a December 14, 2022 orthopedics initial evaluation for right shoulder pain,5

Petitioner reported that he had “received his flu shot at Walgreens [sic] 8

weeks ago. The technician injected him very high on the upper arm. The

following day, pain was so severe he could not lift or use his arm…” Ex. 5 at

4 (emphasis added). The orthopedist recorded that on physical examination of the

right shoulder: “Skin is intact. There is no erythema or induration about his needle

site. There is tenderness there and a little tenderness over the biceps tendon. He

is strong to global shoulder and Whipple exam.” The orthopedist assessed

Petitioner’s right shoulder injury as a “case of SIRVA which is 7 or 8 weeks in

duration.” Petitioner was prescribed oral steroids and told to return to the

orthopedics office as needed. Id.

• After a treatment gap of approximately four months, on May 15, 2023, Petitioner

underwent an MRI of his right shoulder, in light of his reported “pain and limited

range of motion.” Ex. 6 at 4-5; see also id. at 2 (reflecting that Petitioner paid out

of pocket for the MRI).

• At a May 15, 2023 “imaging follow-up” appointment, an orthopedics nurse

assessed that the MRI showed a “right shoulder massive rotator cuff tear with

subacromial impingement and biceps tendinosis” and “significant synovitis,” which

findings “could be related to SIRVA.” Ex. 5 at 8. The nurse recommended, and

Petitioner agreed to, future arthroscopic surgery. Id.

• The aforementioned orthopedist performed Petitioner’s right shoulder surgery on

June 20, 2023. Ex. 5 at 12-14. Afterwards, Petitioner attended 20 sessions of post-

operative physical therapy between August 3 – November 20, 2023. Ex. 7 at 95-

134. His shoulder was also reevaluated and assessed to be recovering at

orthopedics appointments through January 31, 2024. Ex. 7 at 137-38.

5 Petitioner had been seen at the orthopedics practice for previous unrelated medical concerns. See e.g.,

Ex. 5 at 50-123.

6

• In a June 2024 witness statement,6 Petitioner recalled that on October 17, 2022,

the pharmacy employee “indicated my dominant right arm and just asked me if this

arm was okay, [to] which I responded affirmatively because I was not especially

worried at that time.” Ex. 1 at ¶ 14. Petitioner recalls suffering immediate pain at

the time of vaccination, which persisted over time. Id. at ¶¶ 14-21. Petitioner states

that on or about March 1, 2024, he obtained a copy of the vaccine consent form

and discovered the notation of a “left arm” situs. Id. at ¶ 54. Petitioner contends

that this information is “erroneous,” and he immediately notified the pharmacy of

his concern, but he provided the form as it was originally created to his attorney.

Id.

Respondent’s sole objection to the Table SIRVA claim is that the VAR indicates

administration in Petitioner’s non-injured left arm. Rule 4(c) Report at 6 and Response at

3-6 (providing that 42 C.F.R. § 100.3(c)(10)(iii) requires Petitioner to demonstrate that his

symptoms were limited to the shoulder in which he received the flu vaccine). Respondent

correctly notes that this “left arm” situs notation was not computerized but handwritten –

and such notations are typically afforded greater comparative weight, because they

logically involve more specific action by the administrator, and because they may be more

contemporaneous to the actual fact of administration than a computer-generated record.

Response at 4-5 (internal citations omitted). Respondent also argues that that while the

VAR photocopy’s quality is not ideal, Petitioner has not identified any obvious lack of “due

care” or other obvious inaccuracies within the record that would render the “left arm”

notation less likely to be reliable. Id. at 5. Finally, there is not sufficient evidence that an

orthopedics appointment roughly two months post-vaccination observed or documented

any lingering evidence of a right-sided vaccination. Id. at 5-6.

While the “left arm” notation is somewhat problematic for Petitioner, it is not

necessarily dispositive just based on its handwritten character or status as the “first-

created” record of the vaccination. A factual finding must be made on the totality of all

case evidence, which here tips in Petitioner’s favor. In particular, Petitioner had no history

of right shoulder pain or dysfunction (which might have represented an obvious reason

for avoiding a right-sided vaccination, and/or a potential alternative cause for the injury

alleged). Additionally, the medical record evidence starting just eight days post-

vaccination7 support the conclusion that Petitioner had suffered a right-sided shoulder

6 Exhibit 1 is improperly characterized as an “affidavit,” because it is not notarized. However, the statement

at Exhibit 1 is declared as true and correct pursuant to 28 U.. § 1746 (providing that such a statement may

be given like force and effect as an affidavit).

7

In this case, Petitioner’s very early reporting and evaluation of a vaccine shoulder injury is distinguishable

from other cases such as Daugherty v. Sec’y of Health & Hum. Servs., No. 19-1519V, 2024 WL 3416068

at *3-5 (Fed. Cl. Spec. Mstr. June 5, 2024) (in which a handwritten “left arm” notation outweighed reporting

of a right-sided vaccination, reported only four months later), cited in Response at 5.

7

injury, which he believed was caused by misadministration of the vaccine on his right

side. The medical evaluations documented an objective injury which warranted treatment

including orthopedic surgery. In short, all of the medical record evidence other than the

VAR support the alleged right-sided vaccine administration. Reply at 15-16. I conclude

that the case-specific evidence and arguments preponderate in Petitioner’s favor, thereby

supporting a finding that the October 17, 2022 flu vaccine was administered in his right

arm/ shoulder.

IV. Remaining Table SIRVA QAI Criteria and Statutory Requirements

Petitioner’s success in meeting the remaining QAI requirements is not disputed,

and I also find that they have been preponderantly satisfied. The record does not reflect

any potentially explanatory prior history of alternative conditions that would better explain

Petitioner’s alleged right-sided SIRVA. More likely than not, his right shoulder pain began

within 48 hours after the vaccination; the right shoulder was later documented to have

range of motion deficits; and those symptoms were localized to the right shoulder.

The statutory requirements applicable to all claims are also preponderantly

established. Petitioner received a covered vaccine in the United States. Ex. 2 at 1. He

experienced residual effects of the right shoulder injury for more than six months. See,

e.g., Ex. 5 at 6-8; Ex. 1 at ¶¶ 26-28. And he states that he has not pursued or received

any other compensation for this injury. Ex. 1 at ¶¶ 57-58. Thus, Petitioner is entitled to

Vaccine Program compensation.

Conclusion and Damages Order

For the foregoing reasons, Petitioner is entitled to compensation for a right-sided

SIRVA. Thus, this case is now in the damages phase.

The parties are reminded that they should not retain a medical expert, life

care planner, or other expert without consulting with each other and the Chief

Special Master.8 If counsel retains an expert without so consulting in advance,

reimbursement of those costs may be affected.

8 If the parties feel that a life care plan is necessary, they are encouraged to consider the possibility of

engaging a joint life care planner. Selecting a joint life care planner can often cut months from the time

period between an entitlement determination and the award of damages. With a joint life care planner, the

damages process moves more quickly and with less contention. When a joint life care planner is not used,

the life care planners should work together to coordinate interviews and site visits in order to avoid delay

and duplication of effort.

8

As discussed during the February 20, 2026 proceeding, this case’s damages

appear to be limited in scope. Petitioner’s right shoulder was the subject of surgery, but

that intervention was apparently followed by limited post-operative treatment and a

substantial recovery, with the medical course ending within about 15 months post-

vaccination. During the argument, I estimated that an appropriate award for past pain and

suffering might be somewhere between $100,000.00 - $140,000.00 – although in

assessing damages, the parties should of course carefully review the facts of this case

against those from past cases that involved reasoned determinations of SIRVA pain and

suffering. Petitioner should also not delay in substantiating any claimed out-of-pocket

medical expenses or any existing lien. The case is unlikely to involve a claim for lost

earnings or ongoing medical treatment.

Within 60 days, by no later than Friday, April 24, 2026, Petitioner shall file a

Status Report updating me on the parties’ progress toward informally resolving the

issue of damages. The Status Report shall specifically state the date by which Petitioner

provided or intends to provide a demand for damages to Respondent. Additionally,

Petitioner shall confirm whether any Medicaid lien exists, and if so, state the date by which

Petitioner anticipates providing Respondent a letter from the appropriate state agency

verifying the amount of the lien. As always, Petitioner should continue to file any updated

medical records as they become available.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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