# Miller v. Secretary of Health and Human Services

> United States Court of Federal Claims · August 24, 2022

URL: https://www.frixlaw.com/law-library/cases/7803187

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 24, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7803187

## 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. 20-604V
UNPUBLISHED

TRACI GOULD MILLER, Chief Special Master Corcoran

Petitioner, Filed: July 22, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Table
HUMAN SERVICES, Injury; Decision Awarding Damages;
Pain and Suffering; Influenza (Flu)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)

David John Carney, Green & Schafle, LLC, Philadelphia, PA, for Petitioner.

Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1

On May 14, 2020, Traci Gould Miller filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”), alleging that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on
September 17, 2019. Petition, ECF No. 3. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”).

For the reasons described below, and after holding a brief hearing on entitlement
and damages in this matter, I find that Petitioner is entitled compensation, and I award

1
Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it
contains a reasoned explanation for my determination. 44 U.S.C. § 3501 note (2012) (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).
damages in the total amount of $75,000.00 representing Petitioner’s actual pain and
suffering.

I. Relevant Procedural History

As noted above, this case was initiated in May 2020. On November 12, 2021, after
attempting to resolve this case informally, Petitioner filed a status report stating that the
parties had reached an impasse. ECF No. 28. The parties requested that I issue a
scheduling order setting deadlines for the filing of briefs, and I did so. ECF No. 30. 3

On December 1, 2021, Petitioner filed a Motion for Ruling on Record and Brief in
support of Damages, arguing that she had established entitlement to compensation for
her SIRVA injury, and requesting an award of $85,000.00 for her pain and suffering as
the sole damages component. ECF No. 31. Petitioner specifically asserted that the
evidence in the record preponderantly established that she had received a vaccine in her
left shoulder on September 17, 2019, that her shoulder injury began within 48 hours of
receiving the vaccine, and that she was therefore entitled to compensation. Id. at 1-2, 25.

Respondent filed a combined Rule 4(c) Report and Response to Petitioner’s
Motion on February 16, 2022, recommending that entitlement to compensation be denied
under the terms of the Vaccine Act. ECF No. 33. Respondent argued that the evidence
preponderated against a finding that the onset of Petitioner’s shoulder pain occurred
within 48 hours of her vaccination as required to establish an on-Table SIRVA claim. Id.
at 7. Petitioner filed her Reply on March 2, 2022. ECF No. 34.

On April 4, 2022, I held a status conference and indicted that based upon my
preliminary review it appeared Petitioner could likely establish Table SIRVA onset. ECF
No. 35. I therefore ordered Respondent to brief the issue of damages. Id. Respondent
filed a brief on damages on May 4, 2022, recommending that in the event that I found
Petitioner entitled compensation, I award the lessor amount of $67,500.00 for past pain
and suffering. ECF No. 36. Petitioner filed a further Reply on May 17, 2022. ECF No. 40.

In May of this year, I proposed this case be set for an expedited “Motions Day”
hearing on June 24, 2022 4, at which time I would decide the disputed issues based on all
evidence filed to date and any oral argument from counsel. ECF No. 37. The parties
agreed. ECF No. 38. The Motions Day hearing took place on July 8, 2022. Minute Entry

3
Initially, I directed the parties to brief only the issue of entitlement. ECF No. 30.
4
The hearing was subsequently rescheduled and heard on July 8, 2022.

2
dated July 18, 2022. 5 I orally ruled on Petitioner’s entitlement to compensation, and after
argument, I made an oral damages determination as well. This Decision memorializes
those findings/determinations.

II. Factual Findings and Ruling on Entitlement

A. Legal Standards

Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his 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 & Hum. 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). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–
2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).

In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement, 6 a petitioner must
establish that she 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).

5
David Carney appeared on behalf of Petitioner, and Matthew Murphy appeared on behalf of Respondent.
The transcript of the July 8, 2022 Hearing in this case was not filed as of the date of this Decision, but my
oral ruling is incorporated by reference herein.
6
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; suffered the residual effects of his injury for more than six months, died from his 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).

3
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 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).

42 C.F.R. § 100.3(c)(10).

B. Factual Finding Regarding QAI Criteria for Table SIRVA

The only Table requirement for SIRVA that Respondent contests is whether
Petitioner’s first post-vaccination symptom or manifestation of onset (specifically pain)

4
occurred within 48 hours as set forth in the Vaccine Injury Table and Qualifications and
Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(a)(XIV)(B) (seasonal
influenza vaccines); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI);
ECF No. 33 at 7. Based upon a review of the entire record, and for the reasons set forth
below, I find that it more likely than not was.

Petitioner received a flu vaccination in her left deltoid on September 17, 2019. Ex.
1 at 31. A little more than two months (or approximately 71 days) later, on November 27,
2019, Petitioner presented to orthopedist, Sunny Gupta, MD. Ex. 4 at 6. She reported that
her “[s]ymtoms started back in early September. She had a flu shot and noticed pain in
her shoulder afterward. It ha[d] been bothersome ever since.” Ex. 4 at 6. Dr. Gupta’s
notes indicate “[t]his could be an inflammatory reaction from the flu shot.” Id. at 7.
Petitioner’s subsequent treatment records continue to describe the onset of her shoulder
pain as closely following in time her vaccination. Ex. 5 at 7 (January 23, 2020: “[S]ince
September 2019 she has been experiencing pain related to a flu shot);” Ex. 6 at 9
(February 3, 2020: “Started with L[eft] shoulder pain in September . . . . ” and “Mechanism
of Injury: Patient's symptoms initiated after a flu shot she received in September.)”

Respondent asserts that Petitioner’s “medical records created more than two
months after vaccination contain only vague phrases that fail to establish that the pain in
[P]etitioner’s left shoulder began within 48 hours after vaccination.” ECF No. 33 at 7. I
find, however, that the medical records cited above, as supported by Petitioner’s sworn
affidavit (Ex. 2), preponderately support the conclusion that the onset of her shoulder pain
likely began within 48 hours of her September 17, 2019 flu vaccination. While I
acknowledge that Petitioner’s first relevant medical record indicates her pain began in
early September, while her vaccination was in mid-September, that record, and
subsequent records, clarify that she reported the start of her shoulder pain after her
September vaccination, and that it was bothersome thereon. Ex. 4 at 6; Ex. 5 ay 7; Ex. 6
at 9. My finding herein is consistent with the intent of the Act that awards are to be “made
to vaccine-injured persons quickly, easily, and with certainty and generosity.’” H.R. Rep.
No. 99–908, 3, 99th Cong., 2d Sess. 18, reprinted in 1986 U.S.C.C.A.N. 6344.

I credit Respondent’s arguments about the vagueness of certain records pertaining
to onset in this case, but note that the Program’s evidentiary standards are nevertheless
satisfied under the circumstances. As I have previously observed, “the Vaccine Act clearly
does not require that symptoms be recorded within a specific timeframe to be
preponderantly established. Rather, it requires only that onset occurs in the relevant
timeframe.” Niemi v. Sec'y of Health & Hum. Servs., No. 19-1535V, 2021 WL 4146940,
at *4 (Fed. Cl. Aug. 10, 2021) (citing Section 13) (emphasis in original). Neither does the
Act require that the medical records document an exact date that the onset of a
petitioner’s shoulder pain began. A special master may thus find that the first symptom or

5
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).

Accordingly, this element of the claim has been met.

C. Other Requirements for Entitlement

Based on the above, I find that Petitioner has satisfied all requirements for a Table
SIRVA and is entitled to a presumption of causation. However, even if a petitioner has
satisfied the requirements of a Table injury or established causation-in-fact, he or she
must also provide preponderant evidence of the additional requirements of Section 11(c),
i.e., receipt of a covered vaccine, residual effects of injury lasting six months, etc. See
generally § 11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed in this
claim. I therefore find that Petitioner is entitled to compensation in this case.

D. Damages

a. The Parties’ Arguments
Citing four 7 prior damages determinations, Petitioner requests $85,000.00 in pain
and suffering. ECF No. 31 at 1, 18-20. She asserts that her course of treatment (including
three cortisone injections, an MRI, trigger point injections, and two rounds of physical
therapy for a total of approximately 25 sessions), is comparable to the aforementioned
non-surgical SIRVA cases and warrants an award at that level. See id. at 21-25. In
particular, at the July 8, 2022 hearing, Petitioner argued that her case is most similar to
the Kent claim, but more severe, thus justifying a higher award. Petitioner also
emphasizes that that she endured pain and suffering for nearly three years, that she still
suffers from shoulder pain, and that her injury has taken a “physical and emotional toll on
her well-being.” ECF No. 40 at 10-11; Ex. 12 at 1-2.

7
Kent v. Sec’y of Health & Hum. Servs., No. 17-0073V, 2019 WL 5579493 (Fed. Cl. Spec. Mstr.
Aug. 7, 2019) (awarding $80,000.00 for actual pain and suffering); Weber v. Sec’y of Health & Hum.
Servs., No. 17-0399V, 2019 WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00
for actual pain and suffering); Young v. Sec’y of Health & Hum. Servs., No. 15-1241V, 2019 WL
396981 (Fed. Cl. Spec. Mstr. Jan. 4, 2019) (awarding $100,000.00 for actual pain and suffering);
and Dhanoa v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec.
Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering).

6
Respondent, by contrast, proposes an award of no more than $67,500.00
for Petitioner’s pain and suffering. ECF No. 36 at 1, 8. He argues that “the medical
records establish that [P]etitioner’s SIRVA was not severe, required only
conservative treatment, and to the extent it has not resolved, is only mildly limiting
at present.” Id. at 7. Respondent cites to two cases in particular – Dagen v. Sec’y
of Health & Hum. Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr.
Nov. 6, 2019) (awarding $65,000.00 for actual pain and suffering) and Knauss v.
Sec’y of Health & Hum. Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec.
Mstr. May 23, 2018) (awarding $60,000.00 for actual pain and suffering). During
oral argument, Respondent asserted that the duration of Petitioner’s injury was
only approximately six months, 8 and thus the best comparable was the Dagen
case with a similar duration of the injury.

b. Legal Standards for Damages Awards
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 II and III of Winkle v. Sec’y
Health & Hum. Servs., No. 20-0485V, 2022 WL 221643, at *2-4 (Fed. Cl. Spec. Mstr. Jan.
11, 2022).

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. 9
c. 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

8
Respondent was apparently utilizing the date Petitioner first treated for her shoulder injury, November 27,
2019, and the date of Petitioner’s June 16, 2020 physical therapy to calculate this time period. However, I
find that the onset of Petitioner’s injury began contemporaneous with her vaccination and persisted beyond
her last physical therapy on February 16, 2021 – although I do find, as discussed later, that at that time she
was substantially recovered.
9
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)).

7
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury. In determining appropriate compensation for pain and suffering, I have
carefully reviewed and taken into account the complete record in this case, including, but
not limited to: Petitioner’s medical records, affidavits, filings, and all assertions made by
the parties in written documents and at the expedited hearing held on July 8, 2022. 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.

Pursuant to my oral ruling on July 8, 2022 (which is fully adopted herein), I find
that $75,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s pain and suffering.

One factor immediately relevant to my determination is Petitioner’s treatment
delay. Petitioner alleges that her pain was severe immediately, but she did not obtain
treatment until November 27, 2019, over two months after September 17, 2019
vaccination. While I find that such a delay is reasonable (and not reason to deny
entitlement), the delay in seeking treatment is indicative that Petitioner’s shoulder pain
was not so severe as to necessitate urgent treatment in the days and weeks immediately
after her vaccination.

Thereafter, Petitioner underwent consistent, albeit conservative, treatment for her
relatively mild to moderate injury until June 16, 2020, including: physical therapy, 10 three
steroid and trigger point injections, 11 and an MRI scan. 12 Subsequently, there is
approximately a seven-month gap in Petitioner’s treatment. On January 13, 2021,
Petitioner returned to see her orthopedist, Dr. Lisko, for left shoulder pain. Dr. Lisko
describes her treatment history and indicates that Petitioner “states that she is doing
remarkably better.” Ex. 10 at 4. Petitioner further indicates to Dr. Lisko that she “work[ed]

10
Petitioner engaged in approximately 21 physical therapy sessions between February and June 2020. Ex.
6 at 9; Ex. 9 at 35.
11
Petitioner received three steroid injections on the following dates: November 27, 2019 (Ex. 4 at 7),
January 23, 2020, (Ex. 5 at 8-9), and February 12, 2020 (Ex. 5 at 5-6). Petitioner received trigger point
injections on May 7, 2020. Ex. 11 at 4-5.
12
Petitioner’s MRI scan occurred on February 6, 2020. The MRI Impression indicated as follows:

1. Mild subscapularis tendinosis. No full-thickness rotator cuff tear.
2. Evidence for a sprain of the anterior band of the inferior glenohumeral ligament versus
a sequela of adhesive capsulitis.
3. Blunted posterior glenoid labrum concerning for a chronic tear. Suspected
intrasubstance degeneration of superior glenoid labrum.

Ex. 5 at 10-11.

8
out recently and felt a twinge in her left shoulder” and wanted “to be sure that it is ok to
workout without hurting herself.” Id. Dr. Lisko’s examination found “[i]mproved but still
decreased range of motion of the left shoulder.” Id. Dr. Lisko’s primary assessment was
bursitis of the left shoulder, and while it was noted “there has been improvement,” it was
also found that Petitioner “had a minor setback with certain position” and recommended
she resume physical therapy. Id. at 5. Subsequently, Petitioner engaged in a second
round of physical therapy for a total of four additional sessions. Her last physical therapy
appointment was on February 16, 2021, while some limitations persisted, Petitioner noted
that “her shoulders feel good today” and sought no further treatment. Ex. 9 at 51. While
Petitioner asserts that she continues to suffer from shoulder pain (Ex. 12), I find that she
was substantially recovered at the time of her final physical therapy appointment on
February 16, 2021, despite some residual limitations. Accordingly, no award for future
pain and suffering has been demonstrated.

In sum, the record establishes that Petitioner was substantially recovered 17
months after her vaccination. This is not a six-month injury as Respondent alleges.
However, as discussed, Petitioner delayed seeking treatment initially and subsequently
had gaps in treatment, before aggravating her injury working out and seeking further
treatment in January 2021. 13 The fact that Petitioner could cope with her injury during
these periods of time counsels in favor of a lower pain and suffering award. Treatment
gaps are a relevant consideration in determining the degree of Petitioner's pain and
suffering.

In making my determination, I have fully considered Petitioner’s sworn affidavits.
However, I do not find any unique personal factors demonstrating severe pain and
suffering (such as a pregnancy at the time of her injury). See Desrosiers v. Sec’y of Health
& Hum. Servs., No. 16-0224V, 2017 WL 5507804, (Fed. Cl. Sept. 19, 2017). The parties’
comparable case citations were also reasonable, but not fully useful in helping me to
calculate pain and suffering. I note that the cases cited by Petitioner are several years old
(and were not decided by me either, although that fact is not of tremendous importance).
More recent SPU SIRVA cases that I have decided benefit from a larger body of caselaw
and a greater appreciation for the nature of SIRVA as an injury. However, Ms. Miller’s
injury was both more severe, and of a longer duration than that experienced in the cases
cited by Respondent, justifying an increase on what was awarded in those cases.

13
I find however that this event did not represent a new injury.

9
E. Conclusion

In light of all of the above, the I award Petitioner a lump sum payment of
75,000.00 representing Petitioner’s actual pain and suffering in the form of a check
payable to Petitioner. This amount represents compensation for all damages that would
be available under Section 15(a) of the Vaccine Act. Id.

This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision. 14

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

14
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.

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7803187. Public record. Not legal advice.