Belka v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-0585V

UNPUBLISHED

KATHERINE BELKA, Chief Special Master Corcoran

Petitioner, Filed: September 1, 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for

Petitioner.

Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1

On May 11, 2020, Katherine Belka 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 defined in the Vaccine Injury Table, after receiving an

influenza (“flu”) vaccine on September 11, 2018. Petition at 1, ¶¶ 1, 12. The case was

assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”).

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).

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

damages in the amount $71,569.95, representing $68,000.00 for actual pain and

suffering, plus $3,569.95 for actual unreimbursed expenses.

I. Relevant Procedural History

After the case was filed, and after engaging in informal settlement discussions from

early October 2021 through late March 2022, the parties informed me they had reached

an impasse – noting that they were far apart in their valuations of the case. ECF No. 34.

I then ordered Petitioner to file a motion for a ruling on the record encompassing both

issues of entitlement and damages, and Respondent to file a Rule 4(c) Report or

response thereafter. Order, issued Apr. 21, 2022, ECF No. 35.

Over the subsequent four-month period, the parties provided their written

arguments. Petitioner’s Motion for Ruling on Record (“Motion”), filed June 3, 2022, ECF

No. 40; Respondent’s Response to Petitioner’s Motion and Brief on Damages

(“Response”), filed July 22, 2022, ECF No. 43; Petitioner’s Reply to Response (“Reply”),

filed Aug. 12, 2022, ECF No. 46. In July, I proposed this case for an expedited hearing

on August 26, 2022, at which time I would decide the disputed issues based on all

evidence filed to date and any oral argument from counsel. ECF No. 42. The parties

agreed, and the expedited “Motions Day” hearing took place as scheduled. ECF No. 44;

Minute Entry dated Aug. 29, 2022.3 During the hearing, I orally ruled on Petitioner’s

entitlement to compensation, and then made an oral damages determination. This

Decision memorializes those findings and 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.

3

Substituting for the attorney of Record - Leah Durant, Christopher Williams appeared on behalf of

Petitioner, and Austin Egan appeared on behalf of Respondent. As of the date of this Decision, the transcript

of the August 26, 2022 Motions Day hearing has not been filed, but my oral ruling is incorporated by

reference herein.

2

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,4 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).

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

4

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 Section 11(c)(1)(A)(B)(D)(E).

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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) (2017).

B. Factual Finding Regarding QAI Criteria for Table SIRVA

The only Table requirement for SIRVA that Respondent contests is the first

criterion - whether Petitioner experienced a history of left shoulder pain, inflammation, or

dysfunction that would explain her post-vaccination symptoms. Response at 8-9; see 42

C.F.R. § 100.3(c)(10)(i). Emphasizing the results of Petitioner’s MRI, which revealed

conditions not usually associated with a SIRVA injury, plus statements from one of

Petitioner’s treating physicians, Respondent argued that “[P]etitioner experienced left

shoulder dysfunction prior to vaccination.” Response at 8.

The results of the MRI (performed on June 1, 2019) revealed bursal and articular

surface tearing of the supraspinatus and infraspinatus tendons, glenohumeral joint

effusion with moderate synovitis, and circumferential labral tearing. Exhibit 10. After

reviewing the MRI results, the first orthopedist to treat Petitioner indicated he “d[id] not

feel her pain [wa]s coming from her labral tear” and characterized the possibility that the

flu vaccine contributed to the partial tearing of the rotator cuff as “remote.” Exhibit 3 at

181. However, he also opined that “[i]t is likely that the placement of the injection

contributed to the glenohumeral synovitis that [Petitioner] [wa]s experiencing.” Id. And the

orthopedist recognized Petitioner had not experienced any prior left shoulder pain,

remarking that “[i]t is important to note [Petitioner] was not having any shoulder pain prior

to this immunization injection.” Id.

4

Despite confirming the view that Respondent had raised reasonable points against

the claim’s adequacy, I ruled in favor of Petitioner at the August 26, 2022 Motions Day

hearing. Although Petitioner suffered pain in multiple other locations prior to vaccination,5

there is a dearth of evidence showing Petitioner suffered prior left shoulder pain or

dysfunction. And the probative value of the orthopedist’s later statements emphasized by

Respondent is diminished by additional statements he made at the same visit - for

example, the orthopedist’s acknowledgement that Petitioner had experienced no prior left

shoulder pain. Thus, I find Petitioner has satisfied this first QAI criterion.

Furthermore, the record contains sufficient evidence showing Petitioner has

satisfied the other QAI criteria and symptoms onset timing required for a Table SIRVA

injury following receipt of a flu vaccine. See 42 C.F.R. § 100.3(a)(XIV)(B) & (c)(10)(ii)-(iv).

Although Petitioner did not complain of her left shoulder pain until 64 days post-

vaccination and did not seek treatment until an additional four months thereafter, she

consistently attributed her left shoulder pain to the flu vaccine she received, reporting that

her pain began immediately upon vaccination. Exhibit 9 at 2; Exhibit 5 at 45; Exhibit 7 at

24; Exhibit 4 at 3 (initial complaints in chronologic order). Additionally, Petitioner’s pain

and decreased range of motion were limited to her left shoulder. E.g., Exhibit 5 at 45.

Although Petitioner experienced unrelated conditions and sources of pain, there is no

other condition or abnormality which would explain Petitioner’s left shoulder pain. See

supra note 5.

Thus, and as I stated during the expedited hearing, all elements of a Table SIRVA

claim have been preponderantly established.

C. Other Requirements for Entitlement

Because Petitioner has satisfied the requirements of a Table SIRVA, she need not

prove causation. Section 11(c)(1)(C). However, she must satisfy the other requirements

of Section 11(c) regarding the vaccination received, the duration and severity of her injury,

and the lack of other award or settlement. Section 11(c)(A), (B), and (D). Respondent

does not dispute that Petitioner has satisfied these requirements in this case, and the

overall record contains preponderant evidence which fulfills these additional

requirements.

5

The medical records show that prior to vaccination, Petitioner suffered from right shoulder stiffness and

pain, thoracic back pain, and right foot and ankle pain. Exhibit 4 at 34-79; Exhibit 5 at 3-11; Exhibit 6 at 4-

10. Her right shoulder and thoracic pain appear to be related to bilateral mastectomies with implants

undergone a few years earlier to treat right sided breast cancer suffered in 2013. Id. Petitioner attended PT

for her right shoulder and back pain as late February 23, 2018 – less than seven months prior to vaccination.

Exhibit 6 at 11. And she continued to report these symptoms while seeking treatment for her left shoulder

pain post-vaccination. E.g., id. at 12 (reporting neck, thoracic/back pain during a PT session on May 1,

2019).

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III. Compensation to be Awarded

A. Parties Arguments

The parties agree Petitioner should be awarded $3,569.95 for past unreimbursed

expenses. Motion Brief at 5 n.1; Opp. at 1-2, 2 n.1, 8. Thus, the only area of disagreement

is the amount of compensation which should be awarded for Petitioner’s pain and

suffering.

Maintaining that her SIRVA injury spanned more than four years and continues to

the present day, Petitioner seeks $110,000.00 for her pain and suffering. Motion at 13-

17. She insists that “all conservative treatment measures aimed at controlling and

eradicating [her] vaccine-induced pain were unsuccessful.” Id. at 13. She favorably

compares the facts and circumstances of her SIRVA injury with those suffered by the

petitioner in Cooper,6 who received the same amount for pain and suffering -

$100,000.00. Id. at 16.

Petitioner characterizes her injury as severe, asserting that “[h]er pain was initially

severe and has remained moderate to severe” (Motion at 14) and that her condition

interfered with her ability to work and to care for her children (id. at 15). She emphasizes

the treatment she received – 24 PT sessions and two cortisone injections. Id. at 13.

Petitioner maintains that her previously suffered breast cancer and continued right arm

difficulties equated to a greater SIRVA pain and suffering. Id. at 14-15.

In contrast, Respondent asserts that Petitioner should receive the lesser amount

of $50,000.00 for her pain and suffering. Response at 11-12. Emphasizing that Petitioner

did not report her symptoms until two months post-vaccination, and did not seek treatment

until another four months thereafter, Respondent notes that Petitioner’s initial pain levels

were not severe – zero at rest and four to five when active. Id. at 10 (citing Exhibit 7 at

24). He stresses that Petitioner reported 85 percent improvement and pain levels between

one to three approximately twelve months post-vaccination.

Regarding the Cooper case cited by Petitioner, Respondent argues that

Petitioner’s delay in seeking treatment was longer, her pain was less severe, and her

improvement with PT was greater. Response at 10-11. He proposes Crefasi – a proffered

case containing greater detail about the facts of that case (due to the accompanying Rule

6

Cooper v. Sec’y of Health & Hum. Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7,

2018).

6

4(c) Report included with the Proffer) in which the petitioner was awarded $50,000.00.7

Id. at 11.

In response, Petitioner criticizes Respondent’s reliance on Crefasi – in effect, a

settled case reflecting the parties’ tacit agreement about the proper sum of damages to

be awarded. Reply at 2-3. She reiterates her assertion that Cooper presents a

comparable pain and suffering award. Id. at 3.

B. Legal Standards for Pain and Suffering 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 Friberg v. Sec’y

of Health & Hum. Servs., No. 19-1727V, 2022 WL 3152827 (Fed. Cl. Spec. Mstr. July 6,

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.8

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

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, signed declarations,9 filings, and all assertions

7

Crefasi v. Sec’y of Health & Hum. Servs., No. 15-0166V, 2015 WL 5166283 (Fed. Cl. Spec. Mstr. Aug.

12, 2015).

8

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)).

9

Rather than affidavits, all statements provided by Petitioner, her family members, and a co-worker are

declarations signed under penalty of perjury as required pursuant to 28 U.S.C.A. § 1746.

7

made by the parties in written documents and at the expedited hearing held on August

26, 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 August 26, 2022 (which is fully adopted herein), I

find that $68,000.00 represents a fair and appropriate amount of compensation for

Petitioner’s pain and suffering.

When making this determination, I have considered relevant facts such as the

significant delay between vaccination and when Petitioner first sought medical treatment

– six months post-vaccination, initial pain which was sharp with movement but much

lower, even non-existent, at rest, unrelated prior pain and conditions which may have

accounted for some of Petitioner’s pain but would also have made her SIRVA injury more

impactful. Although Petitioner’s delay in seeking treatment did not prevent her from

meeting the requirements of a Table SIRVA injury, it is evidence that her SIRVA injury

was not notably severe.

By contrast, Petitioner’s depiction of a severe SIRVA injury which spanned more

than four years is not supported by the record in this case. When making this assertion,

she fails to acknowledge her earlier reports of mild to non-existent pain at rest and full

ROM with pain only at the extremes. See Exhibit 5 at 45, 47; Exhibit 7 at 24. Emphasizing

her reported pain level of three at her last PT session, Petitioner fails to note this was the

highest level of her pain.

An examination of the record from this October 2nd PT session reveals Petitioner

reported pain which ranged from one to zero. Exhibit 8 at 36. And Petitioner reported

significant improvement throughout PT sessions in September 2019. For example, by

September 3rd, she described increased mobility and the ability to sleep on her stomach.

Id. at 24. By September 5th, she assessed her condition as 85 percent improved. Most

importantly, there is no evidence that Petitioner sought treatment beyond October 2nd,

approximately thirteen months post-vaccination. Because the Cooper case proposed by

Petitioner involves a SIRVA injury with significant pain levels for eight months and an

overall duration of more than two years with continued PT throughout, it does not present

a helpful comparison for this case. See Cooper, 2018 WL 6288181, at *12.

As I stated during the Motions Day hearing, however, Respondent’s preferred

comparable determination, Crefasi, was also an unhelpful comparison. Proffered cases

represent an amount which has been agreed upon by the parties and thus, do not present

reasoned explanation for why the outcome proposed by Respondent should be applied

herein. I previously have rejected Respondent’s argument that the amounts awarded in

8

proffered cases are a more accurate gauge of the appropriate amount to be awarded than

reasoned decisions from the Court and special masters. Sakovits, 2020 WL 3729420, at

*4.

Instead, I find that the cases of Murray and Coli – in which the petitioners were

awarded $65,000.00 and $70,000.00, respectively10 - offer better comparisons to the

facts and circumstances in this case. In particular, Murray -which involved a mild SIRVA

injury lasting approximately one year, with good relief after 15 PT sessions and three

cortisone injections – is a very apt comparable. Murray, 2020 WL 4522483, at *4-5. I

therefore rely on it, although I award a slightly higher figure herein, taking into account

the evidence of pain and suffering otherwise offered.

IV. Conclusion

For all the reasons discussed above and based on consideration of the entire

record, I find that Petitioner’s left shoulder injury meets the definition for a Table

SIRVA. Thus, causation is presumed, and Petitioner is entitled to compensation in

this case. Furthermore, I find that $68,000.00 represents a fair and appropriate

amount of compensation for Petitioner’s actual pain and suffering.11

Based on the record as a whole and arguments of the parties, I award Petitioner

a lump sum payment of $71,569.95, representing $68,000.00 for her actual pain and

suffering and $3,569.95 for her actual unreimbursable expenses, 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.12

10

Murray v. Sec’y of Health & Hum. Servs., No. 18-0534V, 2020 WL 4522483 (Fed. Cl. Spec. Mstr. July 6,

2020); Coli v. Sec’y of Health & Hum. Servs., No. 20-0543V, 2022 WL 706682 (Fed. Cl. Spec. Mstr. Feb.

4, 2022).

11

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)).

12

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.

9

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

10