VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01387
Package ID: USCOURTS-cofc-1_16-vv-01387
Petitioner: Jodi Cooper
Filed: 2016-10-24
Decided: 2018-12-03
Vaccine: Hepatitis A
Vaccination date: 2015-10-30
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 113642

AI-assisted case summary:
Jodi Cooper filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of her October 30, 2015 Hepatitis A vaccination. The case was initially assigned to the Special Processing Unit, and a ruling on entitlement was issued on January 18, 2018, finding Ms. Cooper entitled to compensation. A damages hearing was subsequently held. Ms. Cooper, then 51 years old, received the Hepatitis A vaccine in her left deltoid. She reported excruciating pain shortly after the injection, which she felt was administered too high on her shoulder. She experienced aching for three weeks and delayed seeking medical treatment for over two months due to preparing for a trip to Vietnam and caring for her ailing mother, who subsequently passed away. She first sought medical treatment on January 6, 2016, and was diagnosed with rotator cuff tendinitis. Her physical therapy evaluation on January 19, 2016, noted positive impingement tests and assessed her with impingement and tendinitis. She later reported to her physical therapist that her pain began shortly after the vaccination and that she had researched similar problems online. An orthopedist evaluated her on March 11, 2016, noting restricted mobility and pain consistent with adhesive capsulitis, suspecting it was aggravated by the vaccine injection. The court found that Ms. Cooper's injury was caused-in-fact by the vaccination, satisfying the Althen test for off-Table claims. The court awarded her $110,000.00 for past pain and suffering and $3,642.33 for unreimbursable expenses, for a total award of $113,642.33.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01387-0
Date issued/filed: 2018-04-09
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 1/18/2018) regarding 33 Ruling on Entitlement. Signed by Chief Special Master Nora Beth Dorsey. (rp) Service on parties made.
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Case 1:16-vv-01387-UNJ Document 38 Filed 04/09/18 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1387V
Filed: January 18, 2018
UNPUBLISHED
JODI COOPER,
Special Processing Unit (SPU);
Petitioner, Ruling on Entitlement; Causation-In-
v. Fact; Hepatitis A (Hep A) Vaccine;
Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT AND RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On October 24, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of her October 30, 2015 Hepatitis A (“Hep A”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters. Petitioner now moves for a decision on the written record (1)
making a fact finding as to the onset of petitioner’s shoulder pain and (2) further finding
that petitioner is entitled to compensation. (See ECF No. 29.) For the reasons
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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Case 1:16-vv-01387-UNJ Document 38 Filed 04/09/18 Page 2 of 13
described below, the undersigned grants petitioner’s motion and finds that petitioner is
entitled to compensation.
I. Procedural History
On November 4, 2016, petitioner filed medical records marked as Exhibits 1-9
along with an affidavit marked as Exhibit 10. (ECF No. 7.) Following an initial status
conference, additional records were ordered, which were filed as Exhibits 11 and 12 on
January 17, 2017. (ECF Nos. 9, 10.)
Initially, the parties engaged in settlement discussions. (ECF No 15.) However,
on August 7, 2017, petitioner’s counsel advised the undersigned that the parties had
reached an impasse. (ECF No. 24.) During a status conference held August 23, 2017,
the parties reported that “they have evaluated and valued the case differently and that
the most significant issue is respondent’s view regarding the period of time from
vaccination until petitioner sought treatment of her injury.” (ECF No. 25.) The parties
further agreed that the record was complete, with the exception of a potential fact
hearing. (Id.)
Subsequently, the parties agreed to proceed to a ruling on the written record in
lieu of a fact hearing and a further status conference was held to establish a briefing
schedule. (ECF No. 28.) The parties agreed that petitioner would file a motion for a
finding of fact accompanied by any outstanding supplemental evidence petitioner
wished to have considered, followed by a combined Rule 4 Report and motion response
by respondent, and a reply brief by petitioner. (Id.)
Petitioner filed her motion on October 23, 2017, and did not include any
accompanying supplemental evidence. (ECF No. 29.) Respondent filed his combined
Rule 4 report and motion response on January 2, 2018, and petitioner’s reply was filed
on January 17, 2018. (ECF Nos. 31, 32.)
Thus, petitioner’s motion for a ruling on the written record is now ripe for
adjudication.
II. Factual History
On October 30, 2015, petitioner received a Hepatitis A vaccination from her
primary care physician which was administered in her left deltoid. (Ex. 1, p. 1; Ex. 2, p.
1.) Petitioner averred that she received the vaccination in preparation for a month long
trip to Vietnam beginning November 24, 2015. (Ex. 10, pp. 1-2.)
At the time of her vaccination, petitioner was 51 years old. (Ex. 2, p. 1.) Her prior
medical history included prior reports of back pain (e.g. Ex. 5, p. 1), headaches (e.g. Ex.
5, pp. 4-5), joint pain (e.g. Ex. 12, p. 7), and right shoulder pain (e.g. Ex. 12, p. 3).3
Perhaps most notably, more than two years prior to the vaccination at issue in this case,
3 Petitioner’s right shoulder pain began as a sudden pain while exercising (push-ups) in July of 2012. It
was diagnosed as a rotator cuff strain. (Ex. 12, p. 3.)
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on July 8, 2013, petitioner presented to her chiropractor with a two day history of left
shoulder pain radiating down the left arm and into the little finger. (Ex. 5, p. 4.)
Petitioner did not relate her shoulder pain to any trauma. (Id.) Her chiropractor
suggested the pain could be related to her ongoing neck and back problems and
performed a full spine adjustment and recommended cryotherapy. (Id.) Three days
later, petitioner returned to her chiropractor on July 11, 2013, and reported that the
shoulder pain had resolved. (Id.) Additionally, petitioner reported in her affidavit that she
previously slipped and fell on the deck of her boat in August of 2015, but indicated that
she did not suffer any injury as a result. (Ex. 10, p. 2.)
Petitioner averred that her October 30 Hep A injection was “excruciating.” (Ex.
10, p. 1.) She further indicated that she commented on the pain to the nurse who
administered the injection, but was told the pain was normal. (Id.) Petitioner felt the
vaccination had been given high on the shoulder. (Id.) She described aching for three
weeks following the vaccination and indicated that she performed massage and minor
stretching. (Id. at 2.) Petitioner represented that she was very busy during this period,
preparing for her upcoming trip to Vietnam and making care arrangements for her 91
year old mother, a dementia patient living in a nursing home. (Id.) Petitioner averred
that she prioritized these concerns over her own care. (Id.)
Petitioner further explained that from November 25, 2015, until December 21,
2015, she and her husband were in Vietnam. (Ex. 10, p. 2.) Petitioner recalled that she
had difficulty dressing while she was on her trip and that she had several massages
during her trip for pain relief. (Id.) Upon her return from Vietnam, petitioner reports that
she was informed on December 23, 2015, that her mother had fallen and was acting
strangely. Petitioner further explained that her mother was placed in hospice care and
died on December 29, 2015. (Id.) Petitioner made all the arrangements for transport
and cremation. (Id.)
Thereafter, petitioner first sought medical treatment for her shoulder pain on
January 6, 2016. (Ex. 3, p. 47; Ex. 10, p. 3.) According to her physician’s notes,
petitioner “complains of left shoulder pain” that “has been present for the last 1-2
months occurring with reaching or extending. She denies any injury, trauma, swelling,
bruising, or pain at rest.”4 (Ex. 3, p. 47.) Petitioner also described “near identical” prior
episodes of frozen shoulder. The physician noted that in 2012 she had been diagnosed
with right shoulder tendinitis.5 (Id.) Upon physical examination, petitioner’s shoulder
was “tender to palpation over supraspinatus,” but impingement tests (“Hawkins”) were
negative and range of motion was normal for flexion, extension, and rotation. (Ex. 3, p.
4 Petitioner also complained of palpitations which she reported were not a new symptom, having been
occurring for “a few years.” (Ex. 3, p. 47.)
5 This record does not specifically identify the shoulder implicated in the near identical prior episodes of
frozen shoulder, but does seem to suggest in the later notation that this refers to petitioner’s 2012 right
shoulder tendinitis diagnosis. (Ex. 3, p. 47.) Petitioner’s earlier shoulder complaints are recorded at Ex. 5,
p. 4 (left shoulder, 2013) and Ex. 12, p. 3 (right shoulder, 2012).
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48.) X-rays were negative. (Id.) Petitioner was diagnosed as having rotator cuff
tendinitis and physical therapy was recommended.6 (Id.)
Subsequently, petitioner underwent a physical therapy evaluation on January 19,
2016. (Ex. 3, p. 2.) Petitioner provided a history indicating that her shoulder pain
“began in early November but is not sure what caused it. She did have a fall on a boat
in August though.” (Ex. 3, p. 2.) She reportedly treated previously with ice, heat, arnica,
and TENS.7 (Id.) The date of injury onset is listed on petitioner’s evaluation as
November 1, 2015. (Id.) Hawkins/Kennedy testing for impingement was positive and
petitioner was assessed as having impingement and tendinitis. (Ex. 3, p. 3.) Decreased
scapular strength and stability was also noted. (Id.) Petitioner’s physical therapy plan
included 1-2 visits per week for six weeks. (Id.)
On February 1, 2016, at her fourth physical therapy visit, 8 petitioner reported that
“her shoulder continues to be painful. She began having pain shortly after she received
a vaccination in the shoulder back in November. She felt the injection was too high in
her shoulder and has done some online research which showed others with similar
problems.”9 (Ex. 3, p. 10.) The therapist further noted that “Jody and I discussed the
possibility of shoulder injury due to vaccine administration. I encouraged her to contact
her primary care physician to discuss this further.” (Id.) Petitioner averred in her
affidavit that she discovered that vaccinations can cause shoulder injuries while
researching the causes of bursitis and tendinitis. (Ex. 10, p. 3.)
Petitioner continued her physical therapy sessions throughout February 2016
without any further discussions being noted regarding the onset of her condition.10 (Ex.
3, pp. 12-23.) However, during that same period, petitioner also saw her chiropractor
6 Respondent stresses that there was no mention of petitioner’s Hep A vaccination in the record of this
visit. (ECF No. 31, p. 2.) However, petitioner avers that, at the time of her January 6, 2016 assessment
she did not understand or realize that her arm could be injured as a result of a vaccination. (See Ex. 10,
p. 2 (“I didn’t realize a routine vaccine could cause so much pain.”); Ex. 10, p. 3 (“ . . . I saw my doctor on
January 6, 2016. I explained how badly my left shoulder hurt, but still didn’t realize my arm could be
injured as a result of my vaccine.”).)
7 TENS is an acronym for transcutaneous electrical nerve stimulation. DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY (32nd Ed.), p. 1882.
8 Petitioner’s first physical therapy session occurred January 19, 2016, her second on January 22, 2016,
and her third on January 27, 2016. (Ex. 3, pp. 4-9.) None of the session notes for these visits contain any
notations regarding onset of petitioner’s injury.
9 This record is somewhat ambiguous in stating that “she began having pain shortly after she received a
vaccination in the shoulder back in November.” One might interpret this language as misplacing the date
of vaccination, however, the undersigned interprets this notation as being silent as to the date of
vaccination and indicating that the pain began “back in November.” This remains consistent with
petitioner’s other reports of pain starting at the beginning of November.
10 The record of petitioner’s February 23, 2016 session repeats the same history of onset included in her
initial evaluation, but does not appear to be a new or separate report from petitioner regarding onset. (Ex.
3, p. 20.)
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Case 1:16-vv-01387-UNJ Document 38 Filed 04/09/18 Page 5 of 13
and an acupuncturist. In both instances, petitioner reported that she was experiencing
shoulder pain that she linked to her vaccination.11 (Ex. 5, p. 22; Ex. 4, p. 1.) Petitioner’s
health history questionnaire from the acupuncturist lists the onset of her shoulder pain
as the “1st week of Nov.” (Ex. 4, p. 1.) Additionally, the acupuncturist’s notes of the
same date indicate that petitioner’s left shoulder pain “started after getting 2nd Hep A
shot in upper arm Oct. 2015. Pain and stiffness increased over next 2-3 mos.” (Ex. 4, p.
5.)
On February 23, 2016, petitioner’s physical therapist noted that after eight
sessions, petitioner’s shoulder pain was increasing while her range of motion
decreased. (Ex. 3, p. 21.) An orthopedic consultation was recommended. (Id.)
On March 11, 2016, petitioner was evaluated by an orthopedist. (Ex. 7, p. 1.)
The history taken by the orthopedist stated that petitioner:
has been having left shoulder restricted mobility and problems since she
had a hepatitis A vaccine for travel back on October 30, 2015. She said
when the shot was administered, it was very painful for several days
afterwards, and then she began to have increasing pain in the shoulder to
the point where it gradually became worse where she had difficulty moving
the shoulder. She now has a lot of trouble staying asleep because of the
discomfort in the shoulder. She has tried Advil. She has done physical
therapy and continues with physical therapy, but none of this has really
helped her condition. She is most frustrated by the restricted mobility of
the shoulder in addition to the nighttime pain. Other than this injection, she
has had no prior injury to the shoulder. Pain is described as deep in the
shoulder, sometimes radiating to the upper arm. She has not noted distal
grip weakness. There has been no numbness, paresthesias, tingling, or
neck pain.
(Ex. 7, p. 1.)
On physical examination, the orthopedist found no visible swelling or atrophy of
the shoulder but noted slight palpatory pain over the anterolateral subacromial bursa.
“Global limitations” were noted in range of motion, including having only 80 degrees of
forward flexion, 70 degrees of abduction, and 20 degrees of external rotation. (Ex. 7, p.
2.) Impingement signs were noted to be difficult to assess, but increased pain was
noted on the Hawkins test. (Id.) Additionally, the orthopedist confirmed that petitioner’s
prior January 6, 2015 x-rays were negative and additionally ordered diagnostic
ultrasound, which was also negative for any shoulder abnormalities. (Id.) The
orthopedist’s diagnostic impression was that “Jodi’s symptoms appear consistent with
11 Petitioner also presented to her chiropractor with “increased pain in both sides of the cervicothoracic
area” as well as increased neck pain potentially due to her shoulder exercises. (Ex. 5, p. 22.) The
chiropractor believed that “there may be a connection in the lack of improvement in her shoulder with PT
and her upper back and neck issues.” (Id.)
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left adhesive capsulitis. I suspect given her history, this may have been aggravated
initially by the injection into the subacromial bursa with her hepatitis vaccine that may
have triggered this.” (Ex. 7, p. 2.)
In the several months following her orthopedic evaluation, petitioner had further
appointments with her chiropractor (Ex. 9, p. 9), a massage therapist (Ex. 6), and
physical therapist (Ex. 3, p. 36). She also established care with a new primary care
physician on March 21, 2016. (Ex. 8, p. 7.) Her intake history included “frozen shoulder
on left since last October.” (Id.) Petitioner declined a second orthopedic evaluation. (Ex.
8, p. 8.) On April 20, 2016, petitioner returned to her primary care physician. (Ex. 8, p.
3.) At that time it was noted that petitioner had ended her physical therapy sessions,
but that she still had “quite limited” range of motion. (Id.)
III. Party Contentions
Although petitioner acknowledges that this petition was filed prior to the inclusion
of SIRVA on the Vaccine Injury Table, petitioner’s motion nonetheless urges that the
Qualifications and Aids to Interpretation (“QAI”) for SIRVA should be considered
instructive regarding the criteria for determining whether a SIRVA exists.12 (ECF No. 29,
p. 6.) Petitioner asserts that the medical records and affidavit filed in this case establish
that petitioner’s symptoms began within 48 hours of her alleged injury-causing
vaccination as required by the QAI. (Id.) Petitioner cites eight separate notations in the
medical records which she asserts support her contention and urges the undersigned to
evaluate the record of the case as a whole, discounting instances of erroneous
vaccination dates or records that are silent as to onset. (Id. at 7.) Petitioner also urges
12 Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Vaccine Injury
Table (“Table”). See National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury
Table, Final Rule, 82 Fed. Reg. 6294, Jan. 19, 2017; National Vaccine Injury Compensation Program:
Revisions to the Vaccine Injury Table, Delay of Effective Date, 82 Fed. Reg. 11321, Feb. 22, 2017
(delaying the effective date of the final rule until March 21, 2017). The criteria under the QAI are as
follows:
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).
82 Fed. Reg. 6303 (Qualifications and Aids to Interpretation for SIRVA); see also National
Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg.
45132, Notice of Proposed Rulemaking, July 29, 2015 (citing Atanasoff S, Ryan T, Lightfoot R,
and Johann-Liang R, 2010, Shoulder injury related to vaccine administration (SIRVA), Vaccine
28(51):8049-8052).
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that her extensive, sworn statement regarding her delay in seeking treatment be
credited. (Id. at 7-8.)
In his response, respondent counters that petitioner’s contemporaneous records
do not establish that her injury manifested within 48 hours of vaccination. (ECF No. 31,
p. 6.) Respondent stresses that petitioner waited more than two months to seek
medical treatment, and that this delay casts doubt on both the development of her injury
and the accuracy of her recollections. (Id.) Respondent further stresses that petitioner
did not link her vaccination with her injury until she conducted online research, having
initially linked it to her slip and fall on her boat, and did not report the link to her treating
providers until February of 2016. (Id. at pp. 6-7.)
Respondent further suggests that the physician statements in petitioner’s medical
records purporting to link the vaccination and her injury stem from petitioner’s own
reports and do not constitute reliable medical opinions. (Id. at 7.) Respondent argues
that “it must be determined whether any of these statements actually represents
physicians’ medical conclusions, as opposed to mere speculation or recitation of
assertions made by petitioner.” (Id.) Respondent asserts that, when viewing the record
as a whole, the claim that petitioner’s symptoms began within 48 hours or the claim that
there is a causal relationship between petitioner’s injury and her vaccination “amount to
no more than ‘the claims of petitioner alone’” and therefore cannot form the basis for an
award of compensation. (Id. (citing §300aa-13(a)(1).) Respondent requested that
petitioner’s petition be dismissed. (Id. at 8.)
In her reply, petitioner reiterates her argument that her affidavit should be viewed
as credible and further stresses that respondent does not directly challenge any of the
factual statements made by petitioner. (ECF No. 32, pp. 1-2.) Additionally, petitioner
challenges respondent’s view that the histories petitioner provided to her physicians
should be given less weight or viewed as less credible, contending in particular that
petitioner’s use of online research was a reasonable means to inform the history she
provided her doctors. (Id., pp. 3-4.)
IV. Finding of Fact
The first issue to be addressed is the parties’ dispute over whether the onset of
petitioner’s condition was within 48 hours of the vaccination implicated by petitioner’s
claim. Petitioner has the burden of demonstrating the facts necessary for entitlement to
an award by a “preponderance of the evidence.” § 300aa-12(a)(1)(A). Under that
standard, the existence of a fact must be shown to be “more probable than its
nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring). In light
of all of the above record evidence and for the reasons described below, the
undersigned finds that there is preponderant evidence that the onset of petitioner’s
alleged shoulder pain occurred within 48 hours of petitioner’s October 30, 2015 Hep A
vaccination.
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As described above, petitioner’s contemporaneous medical records demonstrate
that petitioner repeatedly and consistently placed the onset of her condition within 48
hours of her vaccination, even during the period where she has suggested that she did
not herself understand the connection between her vaccination and injury. The first
time petitioner sought medical treatment for her injury on January 6, 2016, she placed
the onset of her pain as being up to two months prior, which would place onset in early
November. (Ex. 3, p. 47.) Her subsequent physical therapy evaluation just two weeks
later placed onset at November 1, 2015, i.e. specifically within 48 hours of October 30,
2015. (Ex. 3, p. 2.) Petitioner further linked the onset in her injury to her vaccination in
an explicit fashion in subsequent medical visits during the course of her treatment. (E.g.
Ex. 3, p. 10.; Ex. 5, p. 22; Ex. 4, p. 5; Ex. 7, p. 1.) Moreover, all of petitioner’s
subsequent reports regarding onset remained consistent with her initial recollection.13
Respondent implicitly argues that the above-described medical records do not
constitute contemporaneous records, noting that these records are “well outside of a
medically appropriate interval to ascribe causation to the vaccine, and the months-long
gap casts doubt upon both the development of left shoulder pain shortly after
petitioner’s vaccination and the accuracy of her recollection.” (ECF No. 31, p. 6.)
Although respondent raises a reasonable point in the abstract, the undersigned does
not find this argument persuasive given the specific facts of this case.
Medical records generally “warrant consideration as trustworthy evidence.”
Cucuras v.HHS, 993 F.2d 1525, 1528 (Fed.Cir.1993). However, greater weight is
typically given to contemporaneous records. Vergara v. HHS, 08-882V, 2014 WL
2795491,*4 (Fed. Cl. Spec. Mstr May 15, 2014) (“Special Masters frequently accord
more weight to contemporaneously-recorded medical symptoms than those recorded in
later medical histories, affidavits, or trial testimony.”) In this case, the undersigned does
not accept respondent’s premise that the records in this case constitute later histories
rather than contemporaneous records.
As respondent notes in his motion response, the weight afforded to
contemporaneous records is due to the fact that they “contain information supplied to or
13 The undersigned recognizes that many of these records are imprecise regarding onset (e.g. “1-2
months,” “1st week of November,” or “early November”); however, it would be a mistake to overanalyze
these notations in search of a precise onset date when they were clearly provided as generalizations (e.g.
it would not be accurate to assume that petitioner’s reference to “1-2 months” made on January 6 and
clearly intended as an approximation necessarily meant November 6 and not a day earlier). It is sufficient
that, petitioner’s vaccination having occurred on October 30, the reported timeframe of early November
reflected by the record as a whole does encompass the 48 hour post-vaccination period. Additionally, it is
significant that when petitioner’s physical therapist selected a date certain for onset based on petitioner’s
report, she selected November 1, 2015, which is within 48 hours of the vaccination. (Ex. 3, p. 2.) This
allows that petitioner’s treating practitioners understood at the time that her earliest reports, general as
they may be, reflected onset at the beginning of November rather than some later point in November.
.
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by health professionals to facilitate diagnosis and treatment of medical conditions. With
proper treatment hanging in the balance, accuracy has an extra premium.” Cucuras,
993 F.2d at 1528. That is exactly the context in which the above-described medical
records discussed the onset of petitioner’s shoulder pain. Thus, the undersigned does
not find a delay in treatment of several months to be dispositive in and of itself regarding
the question of onset in a SIRVA case such as this. Petitioner’s recollection that her
injury began during the period immediately following her vaccination is evidenced from
her very first treatment record regarding her shoulder injury. Moreover, none of her
subsequent medical records contain any notation inconsistent with her initial placement
of her injury in early November.14 Additionally, there are no records reflecting
intervening medical visits where petitioner failed to note her shoulder pain. That is,
petitioner’s recollection of onset was clearly documented (initially and many times
subsequently) in the context of diagnosis and treatment “with proper treatment hanging
in the balance.” Thus, contrary to respondent’s assertion, petitioner’s claim is
corroborated by contemporaneous treatment records.
Additionally, the undersigned finds petitioner’s sworn statement explaining her
pattern of treatment and reports to her physicians as reasonable and credible. See, e.g.
Stevens v. HHS, 90-221V, 1990 WL 608693, *3 (Cl. Ct. Spec. Mstr. 1990)(noting that
clear cogent, and consistent testimony can overcome missing or contradictory medical
records). Petitioner’s account is detailed, concrete, and describes verifiable facts
bearing on petitioner’s delay in seeking treatment. Moreover, in the undersigned’s
experience, petitioner’s sworn statement and medical records together reflect a pattern
of treatment consistent with and similar to many other SIRVA claims.
Also significant is that petitioner’s account is fully consistent with her
contemporaneous medical records. In weighing medical records, “it must be recognized
that the absence of a reference to a condition or circumstance is much less significant
than a reference which negates the existence of the condition or circumstance. Since
medical records typically record only a fraction of all that occurs, the fact that reference
to an event is omitted from the medical records may not be very significant.” Murphy v.
HHS, 23 Cl. Ct. 726, 733 (Fed. Cl. 1991)(aff’d 968 F.2d 1226 (Fed. Cir. 1992)); cf.
Cucuras, 993 F.2d at 1528 (noting that “the Supreme Court counsels that oral testimony
in conflict with contemporaneous documentary evidence deserves little weight.”). In this
case, the undersigned is persuaded that petitioner’s much more detailed sworn
statement is in harmony with the contemporaneous records and provides additional
14 Petitioner’s first physical therapy evaluation on January 19, 2016, does include a reference to a fall on
a boat in August; however, this reference immediately follows her report that the injury began in “early
November” and expands on petitioner’s explanation that she does not know what caused her injury. (Ex.
3, p. 2.) Thus, the undersigned does not interpret petitioner’s reference to the August slip and fall as a
statement regarding onset. Petitioner has averred that she did not understand until later that her
vaccination was capable of causing her injury. (Ex. 10, pp. 2-3.) Additionally, petitioner reported at her
January 6, 2016 medical visit that her shoulder pain was not related to any injury or trauma. (Ex. 3, p. 47.)
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credible statements regarding her condition that are absent or omitted from the medical
records, rather than contradicted by the medical records.
Thus, petitioner’s contemporaneous reports to her physicians and her much
more detailed statements in her sworn affidavit corroborate one another. The
undersigned finds that petitioner’s sworn statements and medical records work in
tandem to provide preponderant evidence that her shoulder pain began within 48 hours
of her October 30, 2015 Hep A vaccination.
V. Ruling on Entitlement
In light of the above finding of fact, the undersigned further finds that this case is
ripe for adjudication on the question of petitioner’s entitlement to compensation for her
alleged SIRVA. For the reasons described below, the undersigned finds that petitioner
is entitled to compensation.
a. Legal Standard
In this case, because petitioner’s claim predates the inclusion of SIRVA on the
Vaccine Injury Table, petitioner must prove her claim by showing that her injury was
“caused-in-fact” by the vaccination in question. § 300aa-13(a)(1)(B); § 300aa-
11(c)(1)(C)(ii). In such a situation, of course, the presumptions available under the
Vaccine Injury Table are inoperative. The burden is on the petitioner to introduce
evidence demonstrating that the vaccination actually caused the injury in question.
Althen v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005); Hines v. HHS, 940 F.2d 1518,
1525 (Fed. Cir. 1991). The showing of “causation-in-fact” must satisfy the
“preponderance of the evidence” standard, the same standard ordinarily used in tort
litigation. § 300aa-13(a)(1)(A); see also Althen, 418 F.3d at 1279; Hines, 940 F.2d at
1525. Under that standard, the petitioner must show that it is “more probable than not”
that the vaccination was the cause of the injury. Althen, 418 F.3d at 1279.
The petitioner need not show that the vaccination was the sole cause or even the
predominant cause of the injury or condition, but must demonstrate that the vaccination
was at least a “substantial factor” in causing the condition, and was a “but for” cause.
Shyface v. HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Under the leading Althen test, petitioner must satisfy three elements. The Althen
court explained this “causation-in-fact” standard, as follows:
Concisely stated, Althen’s burden is to show by preponderant evidence
that the vaccination brought about her injury by providing: (1) a medical
theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason
for the injury; and (3) a showing of proximate temporal relationship
between vaccination and injury. If Althen satisfies this burden, she is
“entitled to recover unless the [government] shows, also by a
preponderance of the evidence, that the injury was in fact caused by
factors unrelated to the vaccine.”
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Case 1:16-vv-01387-UNJ Document 38 Filed 04/09/18 Page 11 of 13
Althen, 418 F.3d at 1278 (citations omitted). The Althen court noted that a petitioner
need not necessarily supply evidence from medical literature supporting petitioner’s
causation contention, so long as the petitioner supplies the medical opinion of an
expert. Id. at 1279-80. The court also indicated that, in finding causation, a Program
fact-finder may rely upon “circumstantial evidence,” which the court found to be
consistent with the “system created by Congress, in which close calls regarding
causation are resolved in favor of injured claimants.” Id. at 1280.
b. Analysis
The undersigned finds that petitioner satisfies the three prongs of Althen as
follows:
i. Althen Prong 1
Under Althen Prong One, there must be preponderant evidence of a medical
theory causally connecting petitioner’s vaccination to her injury. In satisfaction of Althen
Prong One, the undersigned takes judicial notice of the fact that respondent has added
SIRVA to the Vaccine Injury Table for the Hepatitis A vaccine. See National Vaccine
Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg.
45132, Notice of Proposed Rulemaking, July 29, 2015 (citing Atanasoff S, Ryan T,
Lightfoot R, and Johann-Liang R, 2010, Shoulder injury related to vaccine
administration (SIRVA), Vaccine 28(51):8049-8052); see also Doe 21 v. HHS, 88 Fed.
Cl. 178 (July 30, 2009), rev’d on other grounds, 527 Fed. Appx. 875 (Fed. Cir.
2013)(holding that recognition of a link between vaccine and injury on the Vaccine Injury
Table supports petitioner’s burden under Althen Prong One.)
In any event, although respondent stresses petitioner’s burden to establish all
Althen prongs by preponderant evidence, he has not disputed that the Hep A vaccine
can cause SIRVA. In that regard, it is worth noting that there is a well-established track
record of awards of compensation for SIRVA being made on a cause-in-fact basis in
this program. See, e.g. Loeding v. HHS, No. 15-740V, 2015 WL 7253760 (Fed. Cl.
Spec. Mstr. Oct. 15, 2015)(noting that “respondent ‘has concluded that petitioner’s injury
is consistent with SIRVA; that a preponderance of evidence establishes that her SIRVA
was caused in fact by the flu vaccination she received on October 14, 2014; and that no
other causes for petitioner’s SIRVA were identified.”); see also Johnson v. HHS, No. 16-
165V, 2016 WL 3092002 (Fed. Cl. Spec. Mstr. April 13, 2016)(awarding compensation
for a SIRVA caused-in-fact by the influenza vaccine); Koenig v. HHS, No. 16-1496V,
2017 WL6206391 (Fed. Cl. Spec. Mstr. April 13, 2017)(same). Moreover, respondent
has conceded causation in many prior Hep A-caused SIRVA cases in particular. See,
e.g. Telonidis v. HHS, No. 15-450V, 2015 WL 5724746 (Fed. Cl. Spec. Mstr. Sept. 2,
2015); Salas v. HHS, No. 16-739V, 2016 WL 8459834 (Fed. Cl. Spec. Mstr. Nov. 7,
2016).
ii. Althen Prong 2
Under Althen Prong Two, petitioner must demonstrate a logical sequence of
cause and effect showing that the vaccination was the reason for the injury. Although
11

Case 1:16-vv-01387-UNJ Document 38 Filed 04/09/18 Page 12 of 13
petitioner’s claim does not constitute a Table Injury, the undersigned finds the QAI
criteria for SIRVA to be persuasive regarding the factors necessary to demonstrate a
logical sequence of cause and effect. The criteria under the QAI are as follows:
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).
82 Fed. Reg. 6303 (Qualifications and Aids to Interpretation for SIRVA).
In light of the factual history described above, the undersigned finds that all four
of the criteria listed in the QAI for SIRVA are satisfied by preponderant evidence.
Although petitioner did seek treatment for left shoulder pain in 2013, the records show
that the pain resolved within five days. (Ex. 5, p. 4.) Moreover, no follow up diagnostics
were performed at that time to reveal any shoulder dysfunction and ultrasound and x-
rays conducted post-vaccination did not reveal any potentially pre-existing condition or
abnormality to explain petitioner’s symptoms. (Ex. 7, p. 2.) Nor, for that matter, has
respondent asserted that petitioner’s 2012 report of left shoulder pain could explain her
post-vaccination condition.
Additionally, petitioner’s post-vaccination medical records reveal no other
proffered explanation for her injury and her diagnostic evaluations are significant for
multiple findings on physical examination consistent with a SIRVA injury, including
tenderness to palpation over the supraspinatus (Ex. 3, p. 48) and positive impingements
on Hawkins/Kennedy tests (Ex. 3, p. 3). Further, following his evaluation, petitioner’s
orthopedist concluded that “Jodi’s symptoms appear consistent with left adhesive
capsulitis. I suspect given her history, this may have been aggravated initially by the
injection into the subacromial bursa with her hepatitis vaccine that may have triggered
this.” (Ex. 7, p. 2.)
Respondent argues that the physician statements contained in the medical
records should be discounted, because they likely constitute either “mere speculation or
a recitation of assertions made by petitioner.” (ECF No. 31, p. 7.) In that regard,
respondent stresses that a physician’s conclusions “are only as good as the reasons
and evidence that support them,” and argues that the claim of a causal relationship
based on petitioner’s report of onset within 48 hours “amount to no more than ‘the
claims of petitioner alone.’”
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Given the finding of fact above, the undersigned is not persuaded by
respondent’s argument. As noted above, petitioner’s assertion that her injury began
within 48 hours of her vaccination is credible and supported by contemporaneous
records. Thus, the undersigned does not find that petitioner’s physicians’ reliance on
that history was misplaced or suspect. Moreover, the orthopedist’s records reflect a full
physical evaluation, including diagnostic ultrasound to rule out shoulder irregularities.
Therefore, it is not accurate to characterize his medical opinion has “mere speculation.”
Respondent has not raised any other challenge to the credibility of petitioner’s treating
physicians.
For all these reasons, the undersigned finds that petitioner has presented
preponderant evidence pursuant to Althen Prong Two of a logical sequence of cause
and effect showing that her injury was vaccine-caused.
iii. Althen Prong 3
Under Althen Prong Three, there must be a proximate temporal relationship
between vaccination and injury. In this case, both parties agree that the relevant,
medically accepted, timeframe for onset of a SIRVA injury is within 48 hours of
vaccination. (ECF No. 29, p. 7; ECF No. 31, pp. 7-8.) Thus, in light of the above finding
of fact that petitioner’s shoulder pain began within 48 hours of her October 30, 2015
Hep A vaccination, petitioner has necessarily satisfied Althen Prong Three.
iv. Factors Unrelated to Vaccination
Although petitioner’s medical records include a reference to prior left shoulder
pain in 2012 (Ex. 5, p. 4) as well as a report of a slip and fall on a boat made in the
context of assessing the cause of petitioner’s shoulder injury (Ex. 3, p. 2), respondent
has not asserted, nor would the undersigned find, that these isolated notations in the
medical records are sufficient to carry respondent’s burden of establishing an alternative
cause for petitioner’s injury unrelated to vaccination.15
VI. Conclusion
Thus, for all the foregoing reasons, the undersigned DENIES respondent’s
request that this case be dismissed (ECF No. 31, p. 8) and GRANTS petitioner’s motion
for a finding that petitioner is entitled to compensation (ECF No. 29, p. 1).
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
15 Respondent does assert that petitioner’s reference to the slip and fall on her boat should cast doubt on
the accuracy of her recollection (ECF No. 31, p. 7), but this is addressed above. In particular, see fn. 14,
supra.
13

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_16-vv-01387-1
Date issued/filed: 2018-12-03
Pages: 22
Docket text: PUBLIC DECISION (Originally filed: 11/07/2018) regarding 56 DECISION of Special Master (Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 1 of 22
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1387V
Filed: November 7, 2018
PUBLISHED
JODI COOPER,
Special Processing Unit (SPU);
Petitioner, Decision on Damages; Damages
v. Hearing; Hepatitis A (Hep A)
Vaccine; Shoulder Injury Related to
SECRETARY OF HEALTH AND Vaccine Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On October 24, 2016, petitioner 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of her October 30, 2015 Hepatitis A (“Hep A”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters. On January 18, 2018, a ruling was issued finding petitioner
entitled to compensation for her SIRVA. (ECF No. 33.) For the reasons described
below, the undersigned now awards compensation in the amount of $113,642.33.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 2 of 22
I. Procedural History
On November 4, 2016, petitioner filed medical records marked as Exhibits 1-9
along with an affidavit marked as Exhibit 10. (ECF No. 7.) Following an initial status
conference, additional records were ordered, which were filed as Exhibits 11 and 12 on
January 17, 2017. (ECF Nos. 9, 10.)
Initially, the parties engaged in settlement discussions. (ECF No 15.) However,
on August 7, 2017, petitioner’s counsel advised the undersigned that the parties had
reached an impasse. (ECF No. 24.) During a status conference held August 23, 2017,
the parties reported that “they have evaluated and valued the case differently and that
the most significant issue is respondent’s view regarding the period of time from
vaccination until petitioner sought treatment of her injury.” (ECF No. 25.) The parties
further agreed that the record was complete, with the exception of a potential fact
hearing. (Id.)
Subsequently, the parties agreed to proceed to a ruling on the written record in
lieu of a fact hearing and a further status conference was held to establish a briefing
schedule. (ECF No. 28.) The parties agreed that petitioner would file a motion for a
finding of fact accompanied by any outstanding supplemental evidence petitioner
wished to have considered, followed by a combined Rule 4 Report and motion response
by respondent, and a reply brief by petitioner. (Id.)
Petitioner filed her motion on October 23, 2017, and did not include any
accompanying supplemental evidence. (ECF No. 29.) Respondent filed his combined
Rule 4 report and motion response on January 2, 2018, and petitioner’s reply was filed
on January 17, 2018. (ECF Nos. 31, 32.)
On January 18, 2018, the undersigned issued a finding of fact with regard to the
onset of petitioner’s shoulder pain and a ruling on entitlement finding petitioner entitled
to compensation for a SIRVA. (ECF No. 33.) The parties subsequently attempted to
resume their negotiations in light of the undersigned’s ruling; however, petitioner
reported that the parties were “just too far apart” to resolve the case informally and
requested a damages hearing. (ECF No. 35.)
In preparation for the damages hearing, the parties filed pre-hearing briefs (ECF
Nos. 40, 42) and petitioner filed additional medical records marked as Exhibits 13-14,
and 19. (ECF Nos. 43-44.) Respondent objected to petitioner’s discussion in her pre-
hearing brief of the medical facts of other cases without the express written consent of
the individual whose medical facts were being discussed. A status conference was held
before the undersigned to resolve the issue on July 12, 2018. The undersigned noted
that she is concerned both with the requirements of Vaccine Act section 12(d)(4)(A) and
with the individual’s rights pursuant to HIPAA. The undersigned found that remedial
action was not necessary since petitioner’s brief is not a public document, but noted that
2

Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 3 of 22
she would not consider or cite inappropriately disclosed material in reaching her
decision in this case.3 (ECF No. 45.)
Additionally, several witness statements were filed prior to the hearing as Exhibit
15.4 (ECF No. 43.) Documentation of unreimbursable expenses was filed and marked
as Exhibits 16, 17, and 20. (ECF Nos. 43-4, 43-5, 47-1.)
A damages hearing was held in Portland, Maine, on July 19, 2018. (See
Transcript of Proceedings (“Tr.”) at ECF No. 50.) Petitioner, Jodi Cooper, her husband,
Paul Moniz, and her former coworker, Sheila Rollins, testified. (Id.)
Following the hearing, petitioner filed additional documentation of her expenses
as Exhibits 21 and 23 and a statement by her message therapist recommending future
care as Exhibit 22. (ECF Nos. 51, 54.) On September 19, 2018, petitioner confirmed
that the case is ripe for a decision by the undersigned. (ECF No. 55.)
II. Medical History
On October 30, 2015, petitioner received a Hepatitis A vaccination from her
primary care physician which was administered in her left deltoid. (Ex. 1, p. 1; Ex. 2, p.
3 In prior decisions, the undersigned has considered and discussed proffered amounts from prior cases
as “a frame of reference” when deciding SIRVA damages in the absence of available reasoned decisions.
See, e.g. Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804, at *5 (Fed. Cl. Spec. Mstr. Sept. 19,
2017). However, the undersigned has discouraged the practice and given very little weight to such
citations even in the absence of any objection. In Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl.
Spec. Mstr. July 20, 2018), the undersigned explained that
[W]hile the undersigned appreciates the rationale behind citing selected prior proffered
awards, the usefulness of these citations without more is minimal. This approach has
several significant limitations and becomes less persuasive as additional reasoned
decisions become available. First . . . awards based on stipulations and proffers may
include additional elements of damages, such as lost wages or medical expenses, that
are not clearly communicated by the negotiating parties. Moreover, notwithstanding the
representations made in the party briefs regarding the merits of these prior cases, the
facts of these individual cases are not a part of the record of this case nor are they
disclosed in the cited decisions. Third, the scale of the . . . history of prior SPU SIRVA
awards (864 such awards in four years) is such that petitioner's [individual] citations, even
assuming arguendo that they are very well matched to the facts of the instant case,
necessarily represent “cherry picking.”
Indeed, petitioner has raised a similar or related point in her brief, arguing that reliance on prior
negotiated resolutions by other firms is problematic because her counsel has achieved better results in
similarly situated cases than those cited by the petitioner in Desrosiers. (ECF No. 42, p. 17.) Petitioner
also stresses that informal resolutions may be artificially low due to the fact that they likely represent
comprise amounts from petitioner’s perspective. (Id.)
4 In addition to the testifying witnesses, Cathie Door, a friend of petitioner, and Matthew Whitman, the
assistant general manager at petitioner’s place of employment, provided statements. (Ex. 15, pp. 3, 7.)
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Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 4 of 22
1.) Petitioner explained that she received the vaccination in preparation for a month
long trip to Vietnam beginning November 24, 2015. (Ex. 10, pp. 1-2; Tr. 18-19.)
At the time of her vaccination, petitioner was 51 years old. (Ex. 2, p. 1.) Her prior
medical history included prior reports of back pain (e.g. Ex. 5, p. 1), headaches (e.g. Ex.
5, pp. 4-5), joint pain (e.g. Ex. 12, p. 7), and right shoulder pain (e.g. Ex. 12, p. 3).5
More than two years prior to the vaccination at issue in this case, on July 8, 2013,
petitioner presented to her chiropractor with a two day history of left shoulder pain
radiating down the left arm and into the little finger. (Ex. 5, p. 4.) Petitioner did not relate
her shoulder pain to any trauma. (Id.) Her chiropractor suggested the pain could be
related to her ongoing neck and back problems and performed a full spine adjustment
and recommended cryotherapy. (Id.) Three days later, petitioner returned to her
chiropractor on July 11, 2013, and reported that the shoulder pain had resolved. (Id.)
Additionally, petitioner reported in her affidavit that she previously slipped and fell on the
deck of her boat in August of 2015, but indicated that she did not suffer any injury as a
result. (Ex. 10, p. 2.)
Petitioner testified that her October 30, 2015 Hep A injection was “excruciating.”
(Ex. 10, pp. 1-2; Tr. 19.) She described aching for three weeks following the
vaccination and indicated that she performed massage and minor stretching. (Id.)
Petitioner represented that she was very busy during this period, preparing for her
upcoming trip to Vietnam and making care arrangements for her 91-year-old mother, a
dementia patient living in a nursing home. (Ex. 10, pp. 1-2; Tr. 20-21, 86.) Petitioner
indicated that she prioritized these concerns over her own care. (Id.) Petitioner testified
that she was experiencing steady pain during this period, but that her shoulder had not
yet started “freezing.” (Tr. 21.)
Petitioner further explained that from November 25, 2015, until December 21,
2015, she and her husband were in Vietnam. (Ex. 10, p. 2; Tr. 22.) Petitioner recalled
that she had difficulty dressing while she was on her trip and that she had several
massages during her trip for pain relief. (Id.) Petitioner testified that her shoulder began
to freeze while she was on this trip. (Tr. 22.) She recalled her pain as being an eight
and ten on a scale of one to ten during the trip.6 (Id.)
Upon her return from Vietnam, petitioner reports that she was informed on
December 23, 2015, that her mother had fallen and was acting strangely. Petitioner
5 Petitioner’s right shoulder pain began as a sudden pain while exercising (push-ups) in July of 2012. It
was diagnosed as a rotator cuff strain. (Ex. 12, p. 3.)
6 Petitioner testified that her shoulder remained frozen for six to nine months. (Tr. 32.) This would be until
about June to September of 2016. Petitioner testified that during this time her pain was at a ten most of
the time. (Id.) She further testified that during this period she could not ski, snowshoe, or even pull a
broom toward her, and that her condition impacted her sleeping. (Tr. 33-34.) Driving was also more
difficult. (Tr. 35.) Petitioner testified, however, that the range of motion did not come back after the six to
nine months. (Tr. 43-44.)
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Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 5 of 22
further explained that her mother was placed in hospice care and died on December 29,
2015. (Id.) Petitioner made all the arrangements for transport and cremation. (Id.)
Thereafter, petitioner first sought medical treatment for her shoulder pain on
January 6, 2016. (Ex. 3, p. 47; Ex. 10, p. 3.) According to her physician’s notes,
petitioner “complains of left shoulder pain” that “has been present for the last 1-2
months occurring with reaching or extending. She denies any injury, trauma, swelling,
bruising, or pain at rest.”7 (Ex. 3, p. 47.) Petitioner also described “near identical” prior
episodes of frozen shoulder. The physician noted that in 2012 she had been diagnosed
with right shoulder tendinitis.8 (Id.) Upon physical examination, petitioner’s shoulder
was “tender to palpation over supraspinatus,” but impingement tests (“Hawkins”) were
negative and range of motion was normal for flexion, extension, and rotation. (Ex. 3, p.
48.) X-rays were negative. (Id.) Petitioner was diagnosed as having rotator cuff
tendinitis. Avoidance of lifting or repetitive motion, ice, over-the-counter pain relievers,
and physical therapy were recommended. (Id.) Orthopedic follow up or steroid injection
were noted as additional steps if the condition persisted. (Id.)
Subsequently, petitioner underwent a physical therapy evaluation on January 19,
2016. (Ex. 3, p. 2.) Petitioner rated her pain as a ten at worse, four at best, and a seven
at the time of her evaluation.9 The pain was characterized as “sharp.” (Ex. 3, p. 2.)
Active range of motion was recorded as within normal limits for flexion and 110 degrees
for abduction. Passive range of motion was 160 degrees flexion and 120 degrees
abduction with painful end feel. (Id.) She reportedly treated previously with ice, heat,
arnica, and TENS.10 (Id.) Hawkins/Kennedy testing for impingement was positive and
petitioner was assessed as having impingement and tendinitis. (Ex. 3, p. 3.) Decreased
scapular strength and stability were also noted. (Id.) Petitioner reported that her pain is
worse with reaching back and twisting. (Id. at 2.) Petitioner’s physical therapy plan
7 Petitioner also complained of palpitations which she reported were not a new symptom, having been
occurring for “a few years.” (Ex. 3, p. 47.)
8 This record does not specifically identify the shoulder implicated in the near identical prior episodes of
frozen shoulder, but does seem to suggest in the later notation that this refers to petitioner’s 2012 right
shoulder tendinitis diagnosis. (Ex. 3, p. 47.) Petitioner’s earlier shoulder complaints are recorded at Ex. 5,
p. 4 (left shoulder, 2013) and Ex. 12, p. 3 (right shoulder, 2012).
9 During the hearing petitioner stressed the evaluation form she filled out in connection with this
appointment. (Tr. 38 (discussing Ex. 3, p. 39).) This document further breaks down petitioner’s pain and
difficulty for different tasks based on the same ten point scale. (Ex. 3, p. 39.) With regard to difficulty,
petitioner rated washing her back as a ten (meaning so difficult it requires help) and putting on a shirt as a
nine. (Id.) She rated washing her hair and placing an object on a high shelf as eights. (Id.) With regard to
pain, petitioner indicated that her pain is a ten at worst, but with regard to specific functions her highest
ratings were marked as an eight. (Id.) She marked reaching for something on a high shelf and touching
the back of her neck as the two most painful activities. Additionally, the form includes a written comment
stating that “Reaching say – over the back seat of the car is the worst. Can’t buckle bra.” (Id.)
10 TENS is an acronym for transcutaneous electrical nerve stimulation. DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY (32nd Ed.), p. 1882.
5

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included 1-2 visits per week for six weeks. (Id. at 3.) Her level of disability was
characterized as 57%, but her rehab potential was noted to be “good.” (Id. at 2, 4.)
Petitioner returned for physical therapy on January 22 and 27, 2016, with no
change in her symptoms. (Ex. 3, pp. 5-9.) On February 1, 2016, she reported that her
shoulder continues to be painful (Id. at 10), but by February 4, 2016, she reported that
“her shoulder continues to be painful with certain motions, but notes that it does feel
more stable” (Id. at 12).
During that same period, petitioner also saw her chiropractor and an
acupuncturist. On February 8, 2016, petitioner presented to her chiropractor with
“increased pain in both sides of the cervicothoracic area” as well as increased neck pain
potentially due to her shoulder exercises. (Ex. 5, p. 22.) The chiropractor believed that
“there may be a connection in the lack of improvement in her shoulder with PT and her
upper back and neck issues.”11 (Id.) Petitioner saw her acupuncturist for her ongoing
left shoulder pain on February 10, 2016. (Ex. 4, pp. 1-5.) The acupuncturist’s notes
indicate that petitioner’s left shoulder pain “started after getting 2nd Hep A shot in upper
arm Oct. 2015. Pain and stiffness increased over next 2-3 mos.” (Id. at 5.) The
acupuncturist subsequently noted that the shoulder pain was waking petitioner in the
night. (Id. at 7.) A notation by the acupuncturist dated February 19, 2016, states that
“rotation of arm/shoulder leads to excruciating pain.” (Ex. 4, p. 7; Tr. 39.)
On February 23, 2016, petitioner’s physical therapist noted that after eight
sessions, petitioner’s shoulder pain was increasing while her range of motion
decreased. (Ex. 3, p. 21.) An orthopedic consultation was recommended. (Id.)
Petitioner reported to her physical therapist that “her pain is worse now than when she
started therapy. It is throughout her shoulder girdle and down to her elbow. It hurts with
all motions, especially behind her back.”12 (Ex. 3, p. 22.) Petitioner had six more
physical therapy sessions in February and March without any improvement before being
seen by an orthopedist. (Id. at 23-29.)
On March 11, 2016, petitioner was evaluated by an orthopedist. (Ex. 7, p. 1.)
The history taken by the orthopedist stated that petitioner:
has been having left shoulder restricted mobility and problems since she
had a hepatitis A vaccine for travel back on October 30, 2015. She said
when the shot was administered, it was very painful for several days
afterwards, and then she began to have increasing pain in the shoulder to
the point where it gradually became worse where she had difficulty moving
the shoulder. She now has a lot of trouble staying asleep because of the
11 Petitioner returned for continued treatment the next day. (Ex. 5, p. 24.)
12 Petitioner testified that she attributed her increased pain to the freezing process and not to the physical
therapy itself. (Tr. 42.)
6

Case 1:16-vv-01387-UNJ Document 57 Filed 12/03/18 Page 7 of 22
discomfort in the shoulder. She has tried Advil. She has done physical
therapy and continues with physical therapy, but none of this has really
helped her condition. She is most frustrated by the restricted mobility of
the shoulder in addition to the nighttime pain. Other than this injection, she
has had no prior injury to the shoulder. Pain is described as deep in the
shoulder, sometimes radiating to the upper arm. She has not noted distal
grip weakness. There has been no numbness, paresthesias, tingling, or
neck pain.
(Ex. 7, p. 1.)
On physical examination, the orthopedist found no visible swelling or atrophy of
the shoulder but noted slight palpatory pain over the anterolateral subacromial bursa.
“Global limitations” were noted in range of motion, including having only 80 degrees of
forward flexion, 70 degrees of abduction, and 20 degrees of external rotation. (Ex. 7, p.
2.) Impingement signs were noted to be difficult to assess, but increased pain was
noted on the Hawkins test. (Id.) Additionally, the orthopedist confirmed that petitioner’s
prior January 6, 2015 x-rays were negative and additionally ordered diagnostic
ultrasound, which was also negative for any shoulder abnormalities. (Id.) The
orthopedist’s diagnostic impression was that “Jodi’s symptoms appear consistent with
left adhesive capsulitis. I suspect given her history, this may have been aggravated
initially by the injection into the subacromial bursa with her hepatitis vaccine that may
have triggered this.” (Ex. 7, p. 2.) The orthopedist recommended that petitioner
consider a corticosteroid injection into the bursa, but also cautioned that recovery would
take time, indicating that patience and a gentle exercise routine were necessary. (Id.)
In the several months following her orthopedic evaluation, petitioner had further
appointments with her chiropractor13 (Ex. 9), a massage therapist (Ex. 6), and physical
therapist (Ex. 3).14 From March 28 to April 1, 2016, petitioner’s physical therapy notes
indicate improvements in range of motion. (Ex. 3, pp. 32-36.) On April 1, 2016,
petitioner reported that “she had a massage yesterday and her shoulder is feeling pretty
good today. She has been sleeping better over the past two days.”15 (Id. at 36.)
13 During the hearing petitioner stressed notations from a March 15, 2016 chiropractic visit which indicate
(under “Ortho – Supraspinatus test performed”) that she reported “increased pain in the shoulder joint that
was severe on the left. Pain or weakness is significant for supraspinatus tendinitis.” (Tr. 40-41 (referring to
Ex. 9, p. 20.)
14 Petitioner testified that she tried the acupuncturist, chiropractor, and massage therapist both because “I
wanted to cover everything” and because “I would rather do things naturally, and felt like it was non-
invasive.” (Tr. 52.) Petitioner indicated that she has been a believer in chiropractic treatment since she
was young. (Id.) Asked by her counsel if acupuncture and massage therapy were effective for her,
petitioner responded “Yes. Somewhat . . . it helps with anxiety as well, which I was having a lot of.” (Tr.
52-53.)
15 Petitioner testified that massage therapy “helped not only to loosen things up a little bit, but it also
helped with my anxiety. It relaxed me a little bit. It would last for several days after a massage therapy
appointment. So that helped a lot mentally.” (Tr. 52.)
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Petitioner discontinued her physical therapy on May 2, 2016, after 18 sessions in favor
of continuing to work with her massage therapist. (Ex. 3, p. 38.) Her last physical
therapy assessment indicated “passive shoulder flexion 130, abduction 100 degrees.
More tenderness with cupping in bicep and tricep region. The patient was able to
tolerate increased flexion and abduction after cupping and mobs.” (Id. at 36.)
During this period, she also established care with a new primary care physician
on March 21, 2016. (Ex. 8, p. 7.) Her intake history included “frozen shoulder on left
since last October.” (Id.) Petitioner declined a second orthopedic evaluation. (Ex. 8, p.
8.) On April 20, 2016, petitioner returned to her primary care physician. (Ex. 8, p. 3.) At
that time it was noted that petitioner had ended her physical therapy sessions, but that
she still had “quite limited” range of motion. (Id.)
On June 24, 2016, petitioner reported to her chiropractor that she was
experiencing “constant sharp and shooting discomfort in the left tricep.” (Ex. 9, p. 1.)
She rated her pain as being a ten out of ten, but indicated that discomfort decreased
with chiropractic care, medication, heat and ice. (Id.) Range of motion was noted to be
“severely reduced with pain noted.” (Id. at 2.) Based on her failure to progress in
physical therapy, the chiropractor opined that “it is reasonable to believe that her
recovery may take longer than an average patient with an uncomplicated case,” though
he did expect “good progress” and a “recovery with few residuals.” (Id.)
A year later, on June 12, 2017, petitioner returned to physical therapy by self-
referral.16 (Ex. 13, pp. 45-53.) She reported that “since having frozen shoulder she has
not gotten her ROM back. She continues to do her HEP of stretching and strengthening
at home 3x/week. She also has chiropractic twice a month.” (Id. at 45.) She rated her
16 Petitioner’s physical therapy occurred during three periods. She first attended from January to May of
2016 as previously described. (Ex. 3.) She resumed physical therapy in June of 2017 and continued
through July. (Ex. 13, p. 34-46.) She then waited two months before returning again and attending
sessions from September to November of 2017. (Ex. 13, pp. 1-33.) With regard to her physical therapy,
petitioner testified that:
[t]here was some breaks in between where I felt like it had come to a place where they
had given me so many exercises that I could, you know, try – they had me doing them at
home anyway. I bought lots of different pieces of equipment that they supplied, that I
could buy from them at the physical therapist. And I used them at home . . . So there
was times when I just – I needed a break from going to physical therapy appointments,
and so I would do my stuff at home; and it was what they were doing there with me
anyway . . . Then I went back when things didn’t seem to be getting better. They did
other things at physical therapy. They did cupping. They did laser treatments. They did
iontophoresis.”
(Tr. 45.) Petitioner described the laser therapy as being “electrical muscle stimulation” like TENS.
(Tr. 46.) She described iontophoresis as including both electrical stimulation and topical
medication. (Id.)
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pain as seven at worst, one at best, and five at the time of her evaluation.17 (Id.) The
physical therapists assessment indicated that “Ms. Cooper presents with continuing
pain and ROM limitations of her left shoulder. The adhesive capsulitis is resolved
however her signs and symptoms suggest RTC impingement and tendinitis. She will
benefit from physical therapy to manage her pain and address impairments in ROM,
strength and stability so she may return to full function with her left upper extremity.” (Id.
at 46.) Her degree of disability was characterized as 53%. (Id. at 45.)
Petitioner attended eight physical therapy sessions from June 12, 2017, to July
31, 2017, with some improvement noted. (Ex. 13, pp. 34-53.) She was reevaluated on
September 25, 2017, after a two month hiatus.18 (Id. at 33.) At that time she noted her
pain to be eight at worst, one at best, and three at the time of evaluation.19 (Id.) The
physical therapists assessment was that petitioner “does demonstrate some GH laxity
and decreased scapular stability and RTC strength. This is leading to impingement and
RTC tendinitis.” (Id.) Petitioner reported that she “has referred herself back for PT after
taking a couple months off. She continues to have difficulty and pain reaching overhead
or in front. She has painful snapping and she feels pain deep in the joint. She does note
that the pain has not been keeping her awake at night.” (Id. at 30.) Her shoulder
disability was rated at 51%. (Id.) She attended nine physical therapy sessions between
September 25, 2017, and November 27, 2017, with little improvement reported. (Id. at
1-33.)
On December 18, 2017, petitioner returned for a further orthopedic evaluation.
(Ex. 19.) The orthopedist noted petitioner’s long history of physical therapy20 with
17 Active range of motion was recorded as 150 degrees flexion and 110 degrees abduction. Passive
range of motion was recorded at 160 degrees flexion and 125 degrees abduction with painful end feel.
(Ex. 13, p. 45.)
18 Petitioner characterized this return as a “last-ditch attempt” to find additional exercises or treatments
that would help her pain and range of motion issues. (Tr. 48.) During the hearing, petitioner stressed that
her physical therapy goals at this time still related to basic functions such as reaching overhead or behind
her back, specifically, petitioner’s goals included donning a pullover shirt and unhooking her bra without
pain. (Tr. 48-49.) Petitioner described the modified manner in which she accomplishes these things. (Id.)
Petitioner also stressed the pain scale she filled out at the time of the September 24, 2017 evaluation as
well. (Tr. 50-51 (referencing Ex. 13, p. 25.).) Petitioner indicated at the time of the hearing that she
would fill out the form much the same way if she were to do it again, but also noting that she had recently
aggravated her shoulder while boating. (Tr. 51.)
19 Active range of motion was 145 degrees flexion, 115 degrees abduction and passive range of motion
was 160 degrees flexion and 120 degrees abduction with painful end feel. (Ex 13, p. 30.)
20 Petitioner provided a history of having “undergone 50 sessions” of physical therapy. (Ex. 19, p. 1.)
Petitioner also testified that she attended over 50 physical therapy sessions. (Tr. 45.) It is not clear to the
undersigned what petitioner is referring to by 50 sessions. Upon the undersigned’s review of the
Continuum Physical Therapy records filed in this case, petitioner attended 35 physical therapy sessions.
(Ex. 3, 13.) She attended 18 sessions between January and May of 2016 (Ex. 3), eight sessions in June
and July of 2017 (Ex. 13, pp. 34-46), and nine sessions between September and November 2017 (Ex. 13,
pp. 1-33).
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“moderate” improvements in pain and range of motion. (Id. at 1.) Petitioner denied
having any pain at rest, but complained of restricted motion and described pain at the
end point of motion. (Id.) On physical exam the orthopedist noted active range of
motion of approximately 160 degrees forward flexion and 150 degrees abduction, with
70 degrees of external rotation and internal rotation to the lower thoracic spine. (Id. at
2.) He noted passive range of motion to be “mildly restricted.” (Id.) The orthopedist
concluded:
A long discussion was had with the patient today regarding the diagnosis,
prognosis, and treatment plan. We discussed the complexity of her
situation given the chronicity of her symptoms. I suspect she had a chronic
adhesive capsulitis with mildly restricted range of motion and mild
persistent pain. We discussed at length both the conservative and surgical
treatment options. In terms of conservative management, I would
recommend a fluoroscopically guided glenohumeral steroid injection. Post
injection, I stressed the importance of aggressive physical therapy working
on passive and active range of motion exercises. With regard to surgical
intervention, given the chronicity of her symptoms I cannot guarantee
100% full recovery. If the patient elects to entertain surgical intervention, I
would recommend an MRI for further evaluation. Patient would like to
consider her options moving forward. She will follow-up on an as-needed
basis. Jodi understands the treatment plan and all questions were
answered.
(Ex. 19, p. 2.)
Petitioner testified that she rejected the orthopedist’s recommendation for a
corticosteroid injection, because she was afraid of needles due to her injury being
caused by her vaccination injection. (Tr. 54.) She also recalled that the orthopedist told
her there is “a really good chance” surgery would not improve her condition. (Id.)
Petitioner indicated that her doctor told her that she might have reached maximal
improvement (“that this might be it and “that I might have to live with what I have”), but
she testified that he did not tell her how likely he felt that outcome was. (Tr. 55.)
Petitioner subsequently returned to her chiropractor several times. (Ex. 14, pp. 1-
14.) The most recent record filed in this case is from a June 12, 2018 chiropractic visit.
(Ex. 14, pp. 1-2.) That record indicates that, among other complaints, petitioner
“complained of frequent dull and tightness discomfort in the left trapezius. She rated the
intensity of the discomfort, using a VAS, as a level 4 on a scale of 1 to 10 with 10 being
the most severe. The discomfort was reported to increase with applied pressure. The
discomfort was reported to decrease with chiropractic care.” (Ex. 14, p. 1.) Examination
showed “shoulder ROM left was recorded as within normal range but with pain at end of
motion.” (Id. at 2.) The chiropractor felt that petitioner’s prognosis was “improving” and
that she “is expected to demonstrate improved function” due to her good response to
chiropractic care. (Id.) Petitioner testified that she has her chiropractor check her
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shoulder routinely. (Tr.56.) She also testified that she continues to do the home
exercises she learned in physical therapy and yoga21. (Tr. 64.)
As of the time of the hearing in this case (July 19, 2018), petitioner reported that
she had pain of about a five or six on a ten point scale. (Tr. 23.) She described the pain
as “fluctuating,” depending on how much she uses her arm. (Tr. 23-24.) She testified
that she experiences pain of about a five at rest, but up to about an eight when she is
engaged in physical activity. (Tr. 24-25.) Petitioner described her biggest challenge as
reaching overhead and also described other challenges with reaching motions. (Tr. 28,
44.) Petitioner also demonstrated her range of motion. (Tr. 91-93 .) The undersigned
observed that petitioner’s pain began at about 145 degrees abducted as well as with
flexion and extension. (Tr. 92-93.) Petitioner could reach around her back almost as
high as her bra strap. (Tr. 93.)
III. Impact on Personal Life
Petitioner testified that she and her husband are very active people. (Tr. 16.)
She explained that they enjoy a lot of outdoor activities such as hiking, snowshoeing,
downhill skiing and cross-country skiing and that her injury has interfered with these
activities. (Id.) She also noted that it interferes with travel and backpacking.22 (Tr. 58-
60.) Petitioner stressed, in particular, that she and her husband met on the basis of their
shared interest in sailing. (Tr. 17.) They had planned to do extensive sailing after he
retired. (Id.) She noted that they had been planning his early retirement for a long time
and that he has given his notice to retire in December of 2019, but now she does not
know if she will be able to fully participate given her injury. (Id.) Their retirement plan
involved coastal sailing out beyond the bay of Maine, but due to her injury she has been
afraid to sail beyond Penobscot Bay.23 (Tr. 27-28.)
Petitioner explained the physical demands required of sailing, including pulling
lines, working sails, cranking sails, pulling anchor, and even operating the tiller. (Tr. 25-
26.) She explained that these tasks involve overhead reaching and the use of both
arms. (Id.) Petitioner indicated that these tasks are not impossible for her now, but that
they are difficult and she has had to make modifications. (Tr. 26.) She characterized the
21 Petitioner also testified briefly to occasional informal treatments from a friend who is a hand therapist
and her sister-in-law who is a massage therapist. (Tr. 61-62.) The timing of these treatments was not
indicated.
22 Petitioner’s husband also described snorkeling, swimming, spelunking, diving, climbing, and bicycling
as shared activities. (Tr. 101.)
23 Petitioner testified that she has never sailed in the open ocean. (Tr. 88.) She is unsure if they ever will
sail out beyond the bay, because the waves and weather are different. (Id.) Petitioner’s husband
characterized the “retirement” more as a seven year or so hiatus from work which they planned to do
while still able bodied enough to sail. (Tr. 111-12.) He stressed their desire to sail down to the Caribbean,
but noted that petitioner cannot fully enjoy swimming because she cannot pull herself back up on the
boat. (Id.)
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resulting circumstance as “not ideal.” (Id.) As a result of her limitations, petitioner
testified that they had a “short” and “modified” sailing season in the year preceding the
hearing. (Tr. 26-27.) Petitioner’s husband similarly explained that petitioner’s limitation
may force modifications to their broader sailing plans, such as requiring the hiring of a
deck hand, in order to sail safely. (Tr. 103-05.) He also indicated that he and petitioner
would modify their roles on board so that she would do more piloting and he could take
on more physical tasks. (Id.) He further indicated that they would have to sell their
current boat and buy a boat with different equipment that petitioner could better handle
for safe sailing. (Tr. 111, 114.)
One particular task petitioner explained she can no longer do is called “belaying.”
(Tr. 26.) In sailing, belaying refers to hauling someone up on a rope line to the top of
the mast. (Id.) Petitioner explained that her husband goes to the top of the mast for
repair work and that she has historically belayed him while he is working, but since her
injury she can no longer do so. (Id.) Petitioner’s husband testified that as a result of
petitioner’s injury he has had to find other people to help him. (Tr. 102.)
Petitioner also described the impact her injury has had on her working life. (Tr.
30-31.) Petitioner previously worked on a seasonal basis as a caterer and waitress,
most recently in the Mount Abram ski resort area. (Tr. 16, 30.) Petitioner explained,
however, that when she returned from Vietnam she was unable to waitress, because
she couldn’t carry any trays. (Tr. 30.) Petitioner declined a position at Mount Abram as a
hostess and took a lower paid position as a cashier at Good Tern Co-op. (Tr. 30-31.)
However, even this position included some activities that were difficult for petitioner,
such as lifting and sweeping. (Tr. 29.) Ultimately, however, she was able to switch
positions to “supplement buyer,” which is a higher paying position.24
Additionally, Sheila Rollins testified that she and petitioner worked together in
catering for about ten years. (Tr. 81.) She testified that she observed petitioner most
recently at a catering event about one month prior to the hearing in this case. (Tr. 75.)
She testified that she noticed petitioner’s difficulty with range of motion in her arm and
stressed the degree to which catering requires lifting and carrying. (Tr. 75-77.) She also
recalled petitioner’s pain from May of 2016. (Tr. 81-82.) Ms. Rollins indicated that
petitioner’s limitations impacted her effectiveness at work. (Ex. 15, p. 6; Tr. 77-78.)
Petitioner also testified that her injury has been a strain on her marriage. (Tr. 60-
61.) Petitioner’s husband similarly testified that the pain and stress of the situation
impacted their intimacy and domestic life, including petitioner’s ability to participate in
home remodeling projects and daily chores such as making up the bed or taking laundry
off the drying line. (Tr. 108-10.)
24 Petitioner is not asserting any claim for lost wages. (Tr. 31.)
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IV. Party Contentions
In addition to compensation for her past unreimbursed medical expenses,
petitioner seeks an award of compensation for her pain and suffering of between
$175,000.00 and $200,000.00.25 (ECF No. 42, p. 1.) In requesting such an award,
petitioner stresses in her pre-hearing brief26 the long (three year) duration of her injury
as well as the fact that her most recent medical records show ongoing pain and reduced
range of motion. (Id. at 11.) In that regard, she stresses that the record shows that she
“tried every possible treatment modality.” (Id. at 12.) Based on the failure of these
treatments and the duration of her condition to this time, petitioner argues that she
“must now accept that her condition will not improve.”27 (Id.) She also stresses that her
testimony and medical records demonstrate that for the first year of her injury her pain
was “excruciating.” (Id. at 11.) She further notes that the injury has had an impact on
her personal life, including hindering her activities of daily living as well as impacting her
employment and her sailing. (Id. at 11-12.) She argues that these issues, and the
resulting anxiety, leave her “acutely” aware of her injury. (Id. at 12.) In sum, petitioner
contends that the record evidence shows that “she still suffers from a nasty SIRVA.”
(Id. at 13.) Petitioner states that she “acknowledges that [while] she is not as debilitated
as she was during the first year of her injury, significant residua remain and they
continue to haunt her life daily.” (Id.)
In his prehearing brief, respondent proposed an award for petitioner’s pain and
suffering of $45,000.00. (ECF No. 40, p. 1.) Respondent stressed that the medical
records do not support petitioner’s claim of immediate, severe pain that continues to
date. (Id. at 6.) Respondent argued that the records reflect active treatment of only
about five and a half months, from January 6, 2016, to June 24, 2016. (Id.)
Respondent contended that “petitioner’s records are marked by the absence of
significant pain, disability, and medical treatment. Namely, she did not undergo surgery
25 Petitioner proposes that SIRVA claims should be categorized based on severity and duration as “rough
guidelines” for awarding compensation. (ECF No. 42, p. 20-21.) Specifically, petitioner asserts that
appropriate awards for pain and suffering would be as follows:
Injuries lasting six months: $100,000 - $125,000
Injuries from six months to one year: $125,000 - $160,000
Injuries lasting one year to two: $160,000 - $190,000
Permanent residua (non-debilitating): $175,000 - $250,000
Permanent residua (debilitating): over $250,000 (reduced by cap to $250,000)
(ECF No. 42, p. 22.) The undersigned notes that, as described below, these proposed awards are
significantly higher than what has typically been awarded in SIRVA cases. See Kim, infra.
26 Petitioner’s counsel also offered an opening statement at the beginning of the hearing. (Tr. 6-15.) The
opening statement addressed the same reasoning as included in petitioner’s pre-hearing brief, but
provided further elaboration on the aspects of the evidentiary record petitioner wishes to stress. (Id.)
27 Based on life expectancy, petitioner argues she will suffer her current condition for 30 years. (ECF No.
42, p. 13.)
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or other procedures; she did not require prescription medication; she did not seek
ongoing treatment for impaired range of motion or loss of strength; and she did not have
any cortisone injections.” (Id. (emphasis original).) Respondent concluded that
petitioner’s contemporaneous medical records “demonstrate that her clinical course did
not necessitate immediate or ongoing treatment.” (Id. at 7.) Subsequently, however, in
light of later-filed records and the evidence elicited at the damages hearing, respondent
revised his recommendation to $92,500.00. (ECF No. 52.) Respondent has no
objection to certain of petitioner’s claimed expenses as filed at Exhibit 17 totaling
$1,060.59. (Id.) However, respondent agrees only to $1,908.46 of the expenses
included within Exhibit 16. (Id. at 2.)
V. Discussion
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.” § 15(a)(4). Additionally, petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. HHS, No. 93-92V, 1996
WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Medical records are the
most reliable evidence regarding a petitioner’s medical condition and the effect it has on
her daily life. Shapiro v. HHS, 101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt
that the decisional law in the vaccine area favors medical records created
contemporaneously with the events they describe over subsequent recollections.”)
a. Pain and suffering
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. HHS, No. 04- 1593V, 2013 WL 2448125 at *9
(Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently
subjective and cannot be determined by using a mathematical formula”); Stansfield v.
HHS, No. 93-172V, 1996 WL 300594 at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the
assessment of pain and suffering is inherently a subjective evaluation”). 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. 28 I.D., 2013 WL
28 In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times
petitioner was a competent adult with no impairments that would impact her awareness of her injury.
Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s
injury.
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2448125, at *9; McAllister v. HHS, No 91-103V, 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).
The undersigned may also look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering this case.
Jane Doe 34 v. HHS, 87 Fed. Cl. 758, 768 (2009)(finding that “there is nothing improper
in the chief special master’s decision to refer to damages for pain and suffering awarded
in other cases as an aid in determining the proper amount of damages in this case.”)
And, of course, the undersigned also may rely on her own experience adjudicating
similar claims.29 See Hodges v. HHS, 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that
Congress contemplated the special masters would use their accumulated expertise in
the field of vaccine injuries to judge the merits of individual claims). Importantly,
however, it must also be stressed that pain and suffering is not determined based on a
continuum. Graves v. HHS, 109 Fed. Cl. 579 (2013).
In Graves, Judge Merow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merow noted that this constituted “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl.
at 590. Instead, Judge Merow assessed pain and suffering by looking to the record
evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595.
In that regard, the undersigned notes that over the past four years the Special
Processing Unit has amassed a significant history regarding damages in SIRVA cases.
In Kim v. HHS, the undersigned explained that after four years of SPU experience, 864
SIRVA cases were resolved informally as of July 1, 2018. 2018 WL 3991022, at *6. The
undersigned noted that the median award for cases resolved via government proffer is
$100,000.00 and the median award for cases resolved via stipulation by the parties is
$71,355.26.30 Id. In Kim, the undersigned rejected petitioner’s citation to a few isolated
29 From July 2014 until September 2015 the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.
30 The undersigned further stressed that the “typical” range of SIRVA awards – meaning the middle
quartiles – is $77,500.00 to $125,000.00 for proffered cases and $50,000.00 to $95,228.00 for stipulated
cases. The total range for all informally resolved SIRVA claims – by proffer or stipulation – spans from
$5,000.00 to $1,500,000.00. 2018 WL 3991022 at *6. Importantly, these amounts represent total
compensation and typically do not separately list amounts intended to compensate for lost wages or
expenses. Id. The undersigned noted that “[t]hese figures represent four years’ worth of past informal
resolution of SIRVA claims and represent the bulk of prior SIRVA experience in the Vaccine Program.
However, these figures are subject to change as additional cases resolve and do not dictate the result in
this or any future case. Nor do they dictate the amount of any future proffer or settlement.” Id.
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proffers and noted that “to the extent prior informal resolutions are to be considered, the
undersigned finds that the overall history of informal resolution in SPU provides a more
valuable context for assessing the damages in this case. Since it reflects a substantial
history of resolutions among many different cases with many different counsel, the
undersigned is persuaded that the full SPU history of settlement and proffer conveys a
better sense of the overall arms-length evaluation of the monetary value of pain and
suffering in a typical SIRVA case.”31 Id. at *9.
Additionally, since the inception of SPU in July 2014, there have been several
reasoned decisions by the undersigned awarding damages in SPU SIRVA cases where
the parties were unable to informally resolve damages. Typically, the primary point of
dispute has been the appropriate amount of compensation for pain and suffering. To
date, these decisions are32: Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804 (Fed.
Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and
$336.20 in past unreimbursable medical expenses); Dhanoa v. HHS, No. 15-1011V,
2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $94,900.99 for pain
and suffering and $862.14 in past unreimbursable medical expenses); Marino v. HHS,
No. 16-622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018) (awarding
$75,000.00 for pain and suffering and $88.88 in unreimbursable medical expenses);
Knauss v. HHS, No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018)
(awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable medical
expenses); Collado v.HHS, No. 17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June
6, 2018) (awarding $120,000.00 for pain and suffering and $772.53 in unreimbursable
medical expenses); Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr.
July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 for medical
expenses); Dobbins, No. 16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15,
2018) (awarding $125,000.00 for pain and suffering and $3,143.80 for medical
expenses).
In their respective briefs, the parties compared the instant case to Desrosier,
Dhanoa, and Marino.33 Additionally, petitioner cited two decisions issued by other
31 Petitioner cited the following informal resolutions: Deak v. HHS, No. 14-668V ($160,000.00); Jenny v.
HHS, No. 14-338V ($140,000.00); Brand v HHS, No. 12-549 ($178,225.98); and Strobel v. HHS, No. 15-
1375V ($184,750.00). Additionally, petitioner sought to distinguish the informal resolutions in Curtis v.
HHS, No. 16-85V ($91,217.75) and Ponsness, No. 15-826V ($95,000.00). Respondent cited informal
resolutions in Crefasi v. HHS, No. 15-166V ($50,000.00); Varblow v. HHS, No. 15-931V ($35,000.00);
Burkart v. HHS, No. 14-581V ($35,000.00); Grant v. HHS, 13-743V ($35,785.00); and Hamilton v HHS,
No. 15-701V ($50,000.00).
32 This list is limited to those decisions which have been made public at the time of issue of this decision.
33 The briefs in this case were filed on July 5, 2018. Although the Knauss and Collado decisions cited
above were issued before the briefs were filed, they were not made publicly available until after the
parties had filed their briefs. Kim and Dobbins were decided after the briefs had been submitted.
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special masters in prior SIRVA cases.34 In Anthony v. HHS, petitioner was awarded
$248,540.00 for pain and suffering. No. 14-680V, 2016 WL 1169147 (Fed. Cl. Spec.
Mstr. Mar. 2, 2016).35 In Courbois v. HHS, petitioner was awarded $142,794.40 for pain
and suffering. No. 13-939V, 2016 WL 2765092 (Fed Cl. Spec. Mstr. Apr. 20, 2016).36
The undersigned is mindful of all of the above; however, in determining an award
in this case, the undersigned does not rely on a single decision or case. Rather, the
undersigned has reviewed the particular facts and circumstances in this case, giving
due consideration to the circumstances and damages in other cases cited by the parties
and other relevant cases, as well as her knowledge and experience adjudicating similar
cases. Upon the undersigned’s review of the complete record in this case and in
consideration of the undersigned’s experience evaluating SIRVA claims, the
undersigned finds that an award of $110,000.00 is appropriate in this case.
The undersigned finds that petitioner experienced approximately eight months of
severe or significant pain following her SIRVA followed by a longer period of residual
pain and reduced range of motion. This is based on petitioner’s testimony as well as on
the course of her treatment. Petitioner testified that her worst period of pain lasted for
between six to nine months. (Tr. 32.) However, after eight months of treatment,
beginning on June 24, 2016, petitioner began a one year hiatus from physical therapy
before returning on June 27, 2017. (Ex. 9, p.1; Ex. 13, pp. 45-53.)
As described above, there is also significant evidence of further residua following
this eight-month period, involving both pain and restricted range of motion.
Notwithstanding the gaps in her physical therapy, petitioner remained in physical
therapy through November of 2017, more than two years following her injurious
vaccination. (Ex. 13, pp. 1-33.) The physical therapy records document ongoing
difficulties with both pain and range of motion. Moreover, her orthopedist remarked on
the chronicity of petitioner’s condition in December of 2017. (Ex. 19, p. 2.) Further,
petitioner demonstrated her range of motion during the hearing. (Tr. 91-93.) The
undersigned finds that petitioner continued to experience residual pain and reduced
range of motion through the date of the hearing in this case, approximately two years
and nine months following petitioner’s injurious vaccination.
34 Petitioner also cited several intussusception cases; however, in the undersigned’s view, such cases are
not sufficiently analogous to be instructive.
35 The decision issued in the Anthony case did not address the factors that contributed to the special
master’s award. The special master had previously ruled from the bench following a damages hearing.
Of note, although the facts are not disclosed, the award in Anthony also included a significant award for
future life care expenses, suggesting a level of disability far beyond what the instant petitioner
experienced and far beyond the typical SIRVA. In the undersigned’s experience, it is highly unusual that
a SIRVA would warrant an award for future life care.
36 Like Anthony, the special master in Courbois had made a prior oral ruling and the factors contributing to
the special master’s award were not disclosed.
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Additionally, the undersigned has considered the extent to which petitioner’s
injury has impacted her personal life. In particular, petitioner has credibly explained
how her injury has demonstrably impacted her active lifestyle. Most notably, petitioner’s
condition has interfered, at least temporarily, with her ability to sail with her husband, an
activity which both she and her husband testified is central to their marriage and
lifestyle.
The undersigned’s award is also tempered, however, by competing evidence
with regard to the severity of petitioner’s pain. On one hand, petitioner testified credibly
that her condition was very painful. Additionally, the contemporaneous records include
notations which identify high levels of pain and disability. (See, e.g. Ex. 3, p. 2, 39.) On
the other hand, petitioner did not seek any formal medical treatment for her condition
until January 6, 2016.37 (Ex. 3, p. 47; Ex. 10, p. 3.) She did not seek orthopedic care
until March 11, 2016. (Ex. 7, p. 1.) Once she began active treatment, she discontinued
physical therapy for a full year. Diagnostic studies (ultrasound) were negative for
abnormalities (Ex. 7, p. 2) and petitioner never underwent any surgery or had any MRI
imaging performed. Despite the duration of her residua, petitioner had only two
orthopedic consultations. Each time, she opted for more conservative treatment and
declined a corticosteroid injection for pain relief. (Ex. 7, p. 2; Ex. 19, p. 2; Tr. 54.)
Moreover, the undersigned does not find preponderant evidence to support an
award of future pain and suffering. Notwithstanding petitioner’s testimony that she fears
her condition is irresolvable, petitioner made progress throughout her active treatment.
At her last orthopedic consultation, her pain and range of motion were deemed to be
only “mild.” (Ex. 19, p. 2.) And although petitioner testified that the orthopedist
suggested she might have reached maximal improvement, she also testified that he did
not express any opinion regarding how likely that outcome would be. (Tr. 55.)
Petitioner’s more recent chiropractic records reflect range of motion “within normal
range but with pain at the end of motion.” (Ex. 14, p. 2.) According to petitioner’s
chiropractor, petitioner’s prognosis is “improving” and further improved function was
expected. (Id.) In December of 2017, petitioner was released from orthopedic care to
return on an “as needed” basis.38 (Ex. 19, p. 2.) Thus, there are no medical records and
no medical expert evidence to support petitioner’s claim for an award for projected pain
and suffering. As noted above, petitioner bears the burden of proof with respect to each
37 Notwithstanding that petitioner explained that her trip to Vietnam and her subsequent care for her
mother in her final days caused her delay in seeking treatment, the fact of the delay remains a relevant
consideration regarding the severity of petitioner’s condition. See, e.g. Marino, 2018 WL 2224736, at *8
(noting that “the fact that Ms. Marino delayed seeking treatment is relevant to the value of her claim, but
does not defeat her claim.”)
38 Petitioner filed a letter from her massage therapist stating that “I recommend Message Therapy once
per week for the indefinite future as part of Jodi Cooper’s continued care for her shoulder. We have seen
great benefit in her receiving regular massage.” (Ex. 22.) The undersigned does not find that this letter
provides significant weight supporting any award for either future pain and suffering or future medical
expenses.
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element of compensation requested and medical records are the most reliable evidence
of petitioner’s condition. Brewer, 1996 WL 147722, at *22-23; Shapiro, 101 Fed. Cl. at
537-38.
Thus, in light of all of the above, the undersigned finds that $110,000.00
represents an appropriate award for petitioner’s actual or past pain and suffering.
b. Unreimbursable Expenses
Initially, petitioner filed documentation for unreimbursed medical expenses as
Exhibits 16 and 17. (ECF No. 43.) Exhibit 16 was identified as out-of-pocket expenses
submitted39 June 5, 2017, and included costs totaling $3,583.54. (ECF No. 43-4.)
Exhibit 17 was identified as out-of-pocket expenses submitted July 5, 2018, and
included costs totaling $1,060.59. (ECF No. 43-5.) Respondent indicated that he had
no objection to the $1,060.59 of expenses contained in petitioner’s Exhibit 17, but that
he did not feel the expenses claimed in Exhibit 16 were sufficiently documented. (ECF
No. 46.) Subsequently, petitioner filed as Exhibit 20 additional documentation in
support of the expenses listed in Exhibit 16 (ECF No. 47); however, there remained
confusion regarding whether the expenses reflected in the two exhibits (Exhibits 16 and
20) matched perfectly (ECF No. 52). Nonetheless, respondent agreed that Exhibit 16
reflected $1,908.46 in compensable expenses. (ECF No. 52.)
Several points were discussed regarding petitioner’s expenses during the
hearing. (Tr. 66-69, 90-91, 94-98.) Following the hearing, petitioner refiled her expense
documentation as Exhibit 21, titled as “Combined Out of Pocket Expenses.”40 (ECF No.
51.) In Exhibit 21, petitioner indicates that she has a total of $4,208.81 in expenses,
including only a reduced amount of $2,902.65 in expenses submitted June 5, 2017, the
same $1,060.59 in expenses submitted July 5, 2018, $158.37 for “Intermed PA”
submitted on July 18, 2018, and $87.20 for mileage to travel to the damages hearing on
July 19, 2018. (Ex. 21, p. 1.) Subsequently, petitioner filed a further charge from
Ainslee Pine-Massage Therapist of $96.00 for services on September 17, 2018. (Ex.
23.)
39 “Submitted” presumably refers to the parties’ prior settlement discussions. Petitioner provided a
demand for settlement to respondent on June 5, 2017. (ECF No. 18.)
40 During the hearing, petitioner’s counsel had represented that Exhibit 21 would be a cover sheet to
accompany the documentation included in Exhibit 20. However, petitioner’s Exhibit 21 represents a
refined list of the expenses previously identified as “submitted June 5, 2017,” with supporting
documentation, a refiling of the expenses previously identified as “submitted July 5, 2018,” and some
further expenses. (Ex. 21.) The list of expenses included in Exhibit 21 exactly matches the documentation
included in that exhibit, but does not match the list of expenses included in Exhibit 16. Accordingly, the
undersigned concludes that the list of expenses at Exhibit 21 supersedes the previously filed Exhibits 16
and 17.
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Respondent has indicated that he has no objection to expenses from Continuum
Physical Therapy,41 Bay Chiropractic Rockland, Eileen Murray Acupuncture, Bethel
Station Chiropractor, and OA Centers for Orthopedics. (ECF No. 52, p. 2.) Respondent
objects to expenses from Jensen’s Pharmacy, Good Tern Nature Co-op (supplements),
Intermed PA, Synergy Massage; Frozen Shoulder Exercises Website, and Ainslee Pine-
Massage Therapist. (Id.) Respondent contends that these expenses either were not
“reasonably necessary” or lacked supporting documentation. (Id.) Respondent also
disputes the $87.20 in mileage claimed as that is better characterized as a litigation
expense. (Id. at 3.)
The undersigned has reviewed petitioner’s expenses and supporting
documentation as filed at Exhibit 21. Upon the undersigned’s review, petitioner has
documented $1,647.25 in expenses incurred at Continuum Physical Therapy, $124.39
at Bay Chiropractic Rockland, $216.75 at Eileen Murray Acupuncture, $94.32 at Bethel
Station Chiropractor, and $372.31 at OA Centers for Orthopedics. In total, this amounts
to $2,455.02 of expenses which are not disputed by respondent.
Additionally, the undersigned has considered petitioner’s testimony regarding the
effectiveness of her massage therapy as well as her testimony explaining that her
purchases from the Good Tern Co-op, which were labeled as “supplements,” were
actually topical pain relievers for muscle as well as oral supplements for joint health
recommended by her acupuncturist.42 (Tr. 52-53, 65-66, 91.) Accordingly, the
undersigned concludes that petitioner’s expenses from the Good Tern Nature Co-op,
Synergy Massage, and Ainslee Pine – Massage Therapist were reasonably necessary
in light of petitioner’s testimony placing these modalities in the context of her overall
treatment plan and preferences. However, the undersigned does find that the charge of
$300.00 incurred on April 11, 2016, from Ainslee Pine – Massage Therapist is
inconsistent with and substantially more than the remaining charges from that provider
and the substantially increased amount is not adequately explained. Accordingly, the
undersigned does not find that charge to be sufficiently documented. Thus, upon the
undersigned’s review of petitioner’s Exhibit 21 and 23, the undersigned finds that
petitioner has documented reasonable expenses from these providers in the amount of
$1,122.08. This includes $376.00 from Synergy Massage, $532.00 from Ainslee Pine –
Massage Therapist, and $214.08 from Good Tern Nature Co-op.
The undersigned also finds that petitioner’s expense of $5.99 related to obtaining
access to a home exercise website for frozen shoulder was reasonable. Additionally,
the undersigned finds that petitioner’s documentation supports only a claim of $59.23
for charges related to petitioner’s January 6, 2016 visit to Intermed. The remainder of
41 Respondent did indicate that he objects to one charge from Continuum Physical Therapy (dated
September 19, 2016) as undocumented; however, that charge appeared only in petitioner’s Exhibit 16
and was subsequently removed when petitioner refiled her expenses as Exhibit 21.
42 Significantly, respondent does not object to the expenses related to the acupuncture treatment itself.
20

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the charges related to that provider appear to be unrelated to petitioner’s shoulder
condition.
The undersigned has reviewed all of petitioner’s submitted documents and
concludes, for all the reasons described above, that petitioner is entitled to
compensation for unreimbursable expenses in the amount of $3,642.33.43 The
undersigned is not persuaded by the remainder of petitioner’s expense claims.44
VI. Conclusion
In light of all of the above, and in consideration of the record as a whole, the
undersigned finds that petitioner should be awarded $110,000.00 in compensation for
actual (or past) pain and suffering and $3,642.33 in compensation for past
unreimbursable expenses. The undersigned makes no award for projected pain and
suffering, future medical expenses, or past or future lost wages.
Accordingly, the undersigned awards petitioner a lump sum payment of
$113,642.33, representing $110,000.00 in compensation for actual pain and
suffering and $3,642.33 in compensation for past unreimbursable expenses, in
the form of a check payable to petitioner, Jodi Cooper. This amount represents
compensation for all damages that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 45
43 As explained above, this amount includes the following:
$1,647.25 Continuum Physical Therapy
$124.39 Bay Chiropractic Rockland
$216.75 Eileen Murray Acupuncture
$94.32 Bethel Station Chiropractic
$372.31 OA Center for Orthopedics
$376.00 Synergy Massage
$532.00 Ainslee Pine – Massage Therapist
$214.09 Good Tern Nature Co-op
$5.99 Frozen Shoulder Exercise Website
$59.23 Intermed
$3,642.33 Total
44 The undersigned agrees with respondent that petitioner’s mileage reimbursement is better addressed
as a litigation expense to be submitted with petitioner’s application for attorneys’ fees and costs.
45 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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IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
22

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_16-vv-01387-2
Date issued/filed: 2018-12-19
Pages: 22
Docket text: PUBLIC DECISION (Originally filed: 11/07/2018) regarding 56 DECISION of Special Master ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01387-UNJ Document 59 Filed 12/19/18 Page 1 of 22
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1387V
Filed: November 7, 2018
PUBLISHED
JODI COOPER,
Special Processing Unit (SPU);
Petitioner, Decision on Damages; Damages
v. Hearing; Hepatitis A (Hep A)
Vaccine; Shoulder Injury Related to
SECRETARY OF HEALTH AND Vaccine Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On October 24, 2016, petitioner 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of her October 30, 2015 Hepatitis A (“Hep A”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters. On January 18, 2018, a ruling was issued finding petitioner
entitled to compensation for her SIRVA. (ECF No. 33.) For the reasons described
below, the undersigned now awards compensation in the amount of $113,642.33.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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I. Procedural History
On November 4, 2016, petitioner filed medical records marked as Exhibits 1-9
along with an affidavit marked as Exhibit 10. (ECF No. 7.) Following an initial status
conference, additional records were ordered, which were filed as Exhibits 11 and 12 on
January 17, 2017. (ECF Nos. 9, 10.)
Initially, the parties engaged in settlement discussions. (ECF No 15.) However,
on August 7, 2017, petitioner’s counsel advised the undersigned that the parties had
reached an impasse. (ECF No. 24.) During a status conference held August 23, 2017,
the parties reported that “they have evaluated and valued the case differently and that
the most significant issue is respondent’s view regarding the period of time from
vaccination until petitioner sought treatment of her injury.” (ECF No. 25.) The parties
further agreed that the record was complete, with the exception of a potential fact
hearing. (Id.)
Subsequently, the parties agreed to proceed to a ruling on the written record in
lieu of a fact hearing and a further status conference was held to establish a briefing
schedule. (ECF No. 28.) The parties agreed that petitioner would file a motion for a
finding of fact accompanied by any outstanding supplemental evidence petitioner
wished to have considered, followed by a combined Rule 4 Report and motion response
by respondent, and a reply brief by petitioner. (Id.)
Petitioner filed her motion on October 23, 2017, and did not include any
accompanying supplemental evidence. (ECF No. 29.) Respondent filed his combined
Rule 4 report and motion response on January 2, 2018, and petitioner’s reply was filed
on January 17, 2018. (ECF Nos. 31, 32.)
On January 18, 2018, the undersigned issued a finding of fact with regard to the
onset of petitioner’s shoulder pain and a ruling on entitlement finding petitioner entitled
to compensation for a SIRVA. (ECF No. 33.) The parties subsequently attempted to
resume their negotiations in light of the undersigned’s ruling; however, petitioner
reported that the parties were “just too far apart” to resolve the case informally and
requested a damages hearing. (ECF No. 35.)
In preparation for the damages hearing, the parties filed pre-hearing briefs (ECF
Nos. 40, 42) and petitioner filed additional medical records marked as Exhibits 13-14,
and 19. (ECF Nos. 43-44.) Respondent objected to petitioner’s discussion in her pre-
hearing brief of the medical facts of other cases without the express written consent of
the individual whose medical facts were being discussed. A status conference was held
before the undersigned to resolve the issue on July 12, 2018. The undersigned noted
that she is concerned both with the requirements of Vaccine Act section 12(d)(4)(A) and
with the individual’s rights pursuant to HIPAA. The undersigned found that remedial
action was not necessary since petitioner’s brief is not a public document, but noted that
2

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she would not consider or cite inappropriately disclosed material in reaching her
decision in this case.3 (ECF No. 45.)
Additionally, several witness statements were filed prior to the hearing as Exhibit
15.4 (ECF No. 43.) Documentation of unreimbursable expenses was filed and marked
as Exhibits 16, 17, and 20. (ECF Nos. 43-4, 43-5, 47-1.)
A damages hearing was held in Portland, Maine, on July 19, 2018. (See
Transcript of Proceedings (“Tr.”) at ECF No. 50.) Petitioner, Jodi Cooper, her husband,
Paul Moniz, and her former coworker, Sheila Rollins, testified. (Id.)
Following the hearing, petitioner filed additional documentation of her expenses
as Exhibits 21 and 23 and a statement by her message therapist recommending future
care as Exhibit 22. (ECF Nos. 51, 54.) On September 19, 2018, petitioner confirmed
that the case is ripe for a decision by the undersigned. (ECF No. 55.)
II. Medical History
On October 30, 2015, petitioner received a Hepatitis A vaccination from her
primary care physician which was administered in her left deltoid. (Ex. 1, p. 1; Ex. 2, p.
3 In prior decisions, the undersigned has considered and discussed proffered amounts from prior cases
as “a frame of reference” when deciding SIRVA damages in the absence of available reasoned decisions.
See, e.g. Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804, at *5 (Fed. Cl. Spec. Mstr. Sept. 19,
2017). However, the undersigned has discouraged the practice and given very little weight to such
citations even in the absence of any objection. In Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl.
Spec. Mstr. July 20, 2018), the undersigned explained that
[W]hile the undersigned appreciates the rationale behind citing selected prior proffered
awards, the usefulness of these citations without more is minimal. This approach has
several significant limitations and becomes less persuasive as additional reasoned
decisions become available. First . . . awards based on stipulations and proffers may
include additional elements of damages, such as lost wages or medical expenses, that
are not clearly communicated by the negotiating parties. Moreover, notwithstanding the
representations made in the party briefs regarding the merits of these prior cases, the
facts of these individual cases are not a part of the record of this case nor are they
disclosed in the cited decisions. Third, the scale of the . . . history of prior SPU SIRVA
awards (864 such awards in four years) is such that petitioner's [individual] citations, even
assuming arguendo that they are very well matched to the facts of the instant case,
necessarily represent “cherry picking.”
Indeed, petitioner has raised a similar or related point in her brief, arguing that reliance on prior
negotiated resolutions by other firms is problematic because her counsel has achieved better results in
similarly situated cases than those cited by the petitioner in Desrosiers. (ECF No. 42, p. 17.) Petitioner
also stresses that informal resolutions may be artificially low due to the fact that they likely represent
comprise amounts from petitioner’s perspective. (Id.)
4 In addition to the testifying witnesses, Cathie Door, a friend of petitioner, and Matthew Whitman, the
assistant general manager at petitioner’s place of employment, provided statements. (Ex. 15, pp. 3, 7.)
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1.) Petitioner explained that she received the vaccination in preparation for a month
long trip to Vietnam beginning November 24, 2015. (Ex. 10, pp. 1-2; Tr. 18-19.)
At the time of her vaccination, petitioner was 51 years old. (Ex. 2, p. 1.) Her prior
medical history included prior reports of back pain (e.g. Ex. 5, p. 1), headaches (e.g. Ex.
5, pp. 4-5), joint pain (e.g. Ex. 12, p. 7), and right shoulder pain (e.g. Ex. 12, p. 3).5
More than two years prior to the vaccination at issue in this case, on July 8, 2013,
petitioner presented to her chiropractor with a two day history of left shoulder pain
radiating down the left arm and into the little finger. (Ex. 5, p. 4.) Petitioner did not relate
her shoulder pain to any trauma. (Id.) Her chiropractor suggested the pain could be
related to her ongoing neck and back problems and performed a full spine adjustment
and recommended cryotherapy. (Id.) Three days later, petitioner returned to her
chiropractor on July 11, 2013, and reported that the shoulder pain had resolved. (Id.)
Additionally, petitioner reported in her affidavit that she previously slipped and fell on the
deck of her boat in August of 2015, but indicated that she did not suffer any injury as a
result. (Ex. 10, p. 2.)
Petitioner testified that her October 30, 2015 Hep A injection was “excruciating.”
(Ex. 10, pp. 1-2; Tr. 19.) She described aching for three weeks following the
vaccination and indicated that she performed massage and minor stretching. (Id.)
Petitioner represented that she was very busy during this period, preparing for her
upcoming trip to Vietnam and making care arrangements for her 91-year-old mother, a
dementia patient living in a nursing home. (Ex. 10, pp. 1-2; Tr. 20-21, 86.) Petitioner
indicated that she prioritized these concerns over her own care. (Id.) Petitioner testified
that she was experiencing steady pain during this period, but that her shoulder had not
yet started “freezing.” (Tr. 21.)
Petitioner further explained that from November 25, 2015, until December 21,
2015, she and her husband were in Vietnam. (Ex. 10, p. 2; Tr. 22.) Petitioner recalled
that she had difficulty dressing while she was on her trip and that she had several
massages during her trip for pain relief. (Id.) Petitioner testified that her shoulder began
to freeze while she was on this trip. (Tr. 22.) She recalled her pain as being an eight
and ten on a scale of one to ten during the trip.6 (Id.)
Upon her return from Vietnam, petitioner reports that she was informed on
December 23, 2015, that her mother had fallen and was acting strangely. Petitioner
5 Petitioner’s right shoulder pain began as a sudden pain while exercising (push-ups) in July of 2012. It
was diagnosed as a rotator cuff strain. (Ex. 12, p. 3.)
6 Petitioner testified that her shoulder remained frozen for six to nine months. (Tr. 32.) This would be until
about June to September of 2016. Petitioner testified that during this time her pain was at a ten most of
the time. (Id.) She further testified that during this period she could not ski, snowshoe, or even pull a
broom toward her, and that her condition impacted her sleeping. (Tr. 33-34.) Driving was also more
difficult. (Tr. 35.) Petitioner testified, however, that the range of motion did not come back after the six to
nine months. (Tr. 43-44.)
4

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further explained that her mother was placed in hospice care and died on December 29,
2015. (Id.) Petitioner made all the arrangements for transport and cremation. (Id.)
Thereafter, petitioner first sought medical treatment for her shoulder pain on
January 6, 2016. (Ex. 3, p. 47; Ex. 10, p. 3.) According to her physician’s notes,
petitioner “complains of left shoulder pain” that “has been present for the last 1-2
months occurring with reaching or extending. She denies any injury, trauma, swelling,
bruising, or pain at rest.”7 (Ex. 3, p. 47.) Petitioner also described “near identical” prior
episodes of frozen shoulder. The physician noted that in 2012 she had been diagnosed
with right shoulder tendinitis.8 (Id.) Upon physical examination, petitioner’s shoulder
was “tender to palpation over supraspinatus,” but impingement tests (“Hawkins”) were
negative and range of motion was normal for flexion, extension, and rotation. (Ex. 3, p.
48.) X-rays were negative. (Id.) Petitioner was diagnosed as having rotator cuff
tendinitis. Avoidance of lifting or repetitive motion, ice, over-the-counter pain relievers,
and physical therapy were recommended. (Id.) Orthopedic follow up or steroid injection
were noted as additional steps if the condition persisted. (Id.)
Subsequently, petitioner underwent a physical therapy evaluation on January 19,
2016. (Ex. 3, p. 2.) Petitioner rated her pain as a ten at worse, four at best, and a seven
at the time of her evaluation.9 The pain was characterized as “sharp.” (Ex. 3, p. 2.)
Active range of motion was recorded as within normal limits for flexion and 110 degrees
for abduction. Passive range of motion was 160 degrees flexion and 120 degrees
abduction with painful end feel. (Id.) She reportedly treated previously with ice, heat,
arnica, and TENS.10 (Id.) Hawkins/Kennedy testing for impingement was positive and
petitioner was assessed as having impingement and tendinitis. (Ex. 3, p. 3.) Decreased
scapular strength and stability were also noted. (Id.) Petitioner reported that her pain is
worse with reaching back and twisting. (Id. at 2.) Petitioner’s physical therapy plan
7 Petitioner also complained of palpitations which she reported were not a new symptom, having been
occurring for “a few years.” (Ex. 3, p. 47.)
8 This record does not specifically identify the shoulder implicated in the near identical prior episodes of
frozen shoulder, but does seem to suggest in the later notation that this refers to petitioner’s 2012 right
shoulder tendinitis diagnosis. (Ex. 3, p. 47.) Petitioner’s earlier shoulder complaints are recorded at Ex. 5,
p. 4 (left shoulder, 2013) and Ex. 12, p. 3 (right shoulder, 2012).
9 During the hearing petitioner stressed the evaluation form she filled out in connection with this
appointment. (Tr. 38 (discussing Ex. 3, p. 39).) This document further breaks down petitioner’s pain and
difficulty for different tasks based on the same ten point scale. (Ex. 3, p. 39.) With regard to difficulty,
petitioner rated washing her back as a ten (meaning so difficult it requires help) and putting on a shirt as a
nine. (Id.) She rated washing her hair and placing an object on a high shelf as eights. (Id.) With regard to
pain, petitioner indicated that her pain is a ten at worst, but with regard to specific functions her highest
ratings were marked as an eight. (Id.) She marked reaching for something on a high shelf and touching
the back of her neck as the two most painful activities. Additionally, the form includes a written comment
stating that “Reaching say – over the back seat of the car is the worst. Can’t buckle bra.” (Id.)
10 TENS is an acronym for transcutaneous electrical nerve stimulation. DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY (32nd Ed.), p. 1882.
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included 1-2 visits per week for six weeks. (Id. at 3.) Her level of disability was
characterized as 57%, but her rehab potential was noted to be “good.” (Id. at 2, 4.)
Petitioner returned for physical therapy on January 22 and 27, 2016, with no
change in her symptoms. (Ex. 3, pp. 5-9.) On February 1, 2016, she reported that her
shoulder continues to be painful (Id. at 10), but by February 4, 2016, she reported that
“her shoulder continues to be painful with certain motions, but notes that it does feel
more stable” (Id. at 12).
During that same period, petitioner also saw her chiropractor and an
acupuncturist. On February 8, 2016, petitioner presented to her chiropractor with
“increased pain in both sides of the cervicothoracic area” as well as increased neck pain
potentially due to her shoulder exercises. (Ex. 5, p. 22.) The chiropractor believed that
“there may be a connection in the lack of improvement in her shoulder with PT and her
upper back and neck issues.”11 (Id.) Petitioner saw her acupuncturist for her ongoing
left shoulder pain on February 10, 2016. (Ex. 4, pp. 1-5.) The acupuncturist’s notes
indicate that petitioner’s left shoulder pain “started after getting 2nd Hep A shot in upper
arm Oct. 2015. Pain and stiffness increased over next 2-3 mos.” (Id. at 5.) The
acupuncturist subsequently noted that the shoulder pain was waking petitioner in the
night. (Id. at 7.) A notation by the acupuncturist dated February 19, 2016, states that
“rotation of arm/shoulder leads to excruciating pain.” (Ex. 4, p. 7; Tr. 39.)
On February 23, 2016, petitioner’s physical therapist noted that after eight
sessions, petitioner’s shoulder pain was increasing while her range of motion
decreased. (Ex. 3, p. 21.) An orthopedic consultation was recommended. (Id.)
Petitioner reported to her physical therapist that “her pain is worse now than when she
started therapy. It is throughout her shoulder girdle and down to her elbow. It hurts with
all motions, especially behind her back.”12 (Ex. 3, p. 22.) Petitioner had six more
physical therapy sessions in February and March without any improvement before being
seen by an orthopedist. (Id. at 23-29.)
On March 11, 2016, petitioner was evaluated by an orthopedist. (Ex. 7, p. 1.)
The history taken by the orthopedist stated that petitioner:
has been having left shoulder restricted mobility and problems since she
had a hepatitis A vaccine for travel back on October 30, 2015. She said
when the shot was administered, it was very painful for several days
afterwards, and then she began to have increasing pain in the shoulder to
the point where it gradually became worse where she had difficulty moving
the shoulder. She now has a lot of trouble staying asleep because of the
11 Petitioner returned for continued treatment the next day. (Ex. 5, p. 24.)
12 Petitioner testified that she attributed her increased pain to the freezing process and not to the physical
therapy itself. (Tr. 42.)
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discomfort in the shoulder. She has tried Advil. She has done physical
therapy and continues with physical therapy, but none of this has really
helped her condition. She is most frustrated by the restricted mobility of
the shoulder in addition to the nighttime pain. Other than this injection, she
has had no prior injury to the shoulder. Pain is described as deep in the
shoulder, sometimes radiating to the upper arm. She has not noted distal
grip weakness. There has been no numbness, paresthesias, tingling, or
neck pain.
(Ex. 7, p. 1.)
On physical examination, the orthopedist found no visible swelling or atrophy of
the shoulder but noted slight palpatory pain over the anterolateral subacromial bursa.
“Global limitations” were noted in range of motion, including having only 80 degrees of
forward flexion, 70 degrees of abduction, and 20 degrees of external rotation. (Ex. 7, p.
2.) Impingement signs were noted to be difficult to assess, but increased pain was
noted on the Hawkins test. (Id.) Additionally, the orthopedist confirmed that petitioner’s
prior January 6, 2015 x-rays were negative and additionally ordered diagnostic
ultrasound, which was also negative for any shoulder abnormalities. (Id.) The
orthopedist’s diagnostic impression was that “Jodi’s symptoms appear consistent with
left adhesive capsulitis. I suspect given her history, this may have been aggravated
initially by the injection into the subacromial bursa with her hepatitis vaccine that may
have triggered this.” (Ex. 7, p. 2.) The orthopedist recommended that petitioner
consider a corticosteroid injection into the bursa, but also cautioned that recovery would
take time, indicating that patience and a gentle exercise routine were necessary. (Id.)
In the several months following her orthopedic evaluation, petitioner had further
appointments with her chiropractor13 (Ex. 9), a massage therapist (Ex. 6), and physical
therapist (Ex. 3).14 From March 28 to April 1, 2016, petitioner’s physical therapy notes
indicate improvements in range of motion. (Ex. 3, pp. 32-36.) On April 1, 2016,
petitioner reported that “she had a massage yesterday and her shoulder is feeling pretty
good today. She has been sleeping better over the past two days.”15 (Id. at 36.)
13 During the hearing petitioner stressed notations from a March 15, 2016 chiropractic visit which indicate
(under “Ortho – Supraspinatus test performed”) that she reported “increased pain in the shoulder joint that
was severe on the left. Pain or weakness is significant for supraspinatus tendinitis.” (Tr. 40-41 (referring to
Ex. 9, p. 20.)
14 Petitioner testified that she tried the acupuncturist, chiropractor, and massage therapist both because “I
wanted to cover everything” and because “I would rather do things naturally, and felt like it was non-
invasive.” (Tr. 52.) Petitioner indicated that she has been a believer in chiropractic treatment since she
was young. (Id.) Asked by her counsel if acupuncture and massage therapy were effective for her,
petitioner responded “Yes. Somewhat . . . it helps with anxiety as well, which I was having a lot of.” (Tr.
52-53.)
15 Petitioner testified that massage therapy “helped not only to loosen things up a little bit, but it also
helped with my anxiety. It relaxed me a little bit. It would last for several days after a massage therapy
appointment. So that helped a lot mentally.” (Tr. 52.)
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Petitioner discontinued her physical therapy on May 2, 2016, after 18 sessions in favor
of continuing to work with her massage therapist. (Ex. 3, p. 38.) Her last physical
therapy assessment indicated “passive shoulder flexion 130, abduction 100 degrees.
More tenderness with cupping in bicep and tricep region. The patient was able to
tolerate increased flexion and abduction after cupping and mobs.” (Id. at 36.)
During this period, she also established care with a new primary care physician
on March 21, 2016. (Ex. 8, p. 7.) Her intake history included “frozen shoulder on left
since last October.” (Id.) Petitioner declined a second orthopedic evaluation. (Ex. 8, p.
8.) On April 20, 2016, petitioner returned to her primary care physician. (Ex. 8, p. 3.) At
that time it was noted that petitioner had ended her physical therapy sessions, but that
she still had “quite limited” range of motion. (Id.)
On June 24, 2016, petitioner reported to her chiropractor that she was
experiencing “constant sharp and shooting discomfort in the left tricep.” (Ex. 9, p. 1.)
She rated her pain as being a ten out of ten, but indicated that discomfort decreased
with chiropractic care, medication, heat and ice. (Id.) Range of motion was noted to be
“severely reduced with pain noted.” (Id. at 2.) Based on her failure to progress in
physical therapy, the chiropractor opined that “it is reasonable to believe that her
recovery may take longer than an average patient with an uncomplicated case,” though
he did expect “good progress” and a “recovery with few residuals.” (Id.)
A year later, on June 12, 2017, petitioner returned to physical therapy by self-
referral.16 (Ex. 13, pp. 45-53.) She reported that “since having frozen shoulder she has
not gotten her ROM back. She continues to do her HEP of stretching and strengthening
at home 3x/week. She also has chiropractic twice a month.” (Id. at 45.) She rated her
16 Petitioner’s physical therapy occurred during three periods. She first attended from January to May of
2016 as previously described. (Ex. 3.) She resumed physical therapy in June of 2017 and continued
through July. (Ex. 13, p. 34-46.) She then waited two months before returning again and attending
sessions from September to November of 2017. (Ex. 13, pp. 1-33.) With regard to her physical therapy,
petitioner testified that:
[t]here was some breaks in between where I felt like it had come to a place where they
had given me so many exercises that I could, you know, try – they had me doing them at
home anyway. I bought lots of different pieces of equipment that they supplied, that I
could buy from them at the physical therapist. And I used them at home . . . So there
was times when I just – I needed a break from going to physical therapy appointments,
and so I would do my stuff at home; and it was what they were doing there with me
anyway . . . Then I went back when things didn’t seem to be getting better. They did
other things at physical therapy. They did cupping. They did laser treatments. They did
iontophoresis.”
(Tr. 45.) Petitioner described the laser therapy as being “electrical muscle stimulation” like TENS.
(Tr. 46.) She described iontophoresis as including both electrical stimulation and topical
medication. (Id.)
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pain as seven at worst, one at best, and five at the time of her evaluation.17 (Id.) The
physical therapists assessment indicated that “Ms. Cooper presents with continuing
pain and ROM limitations of her left shoulder. The adhesive capsulitis is resolved
however her signs and symptoms suggest RTC impingement and tendinitis. She will
benefit from physical therapy to manage her pain and address impairments in ROM,
strength and stability so she may return to full function with her left upper extremity.” (Id.
at 46.) Her degree of disability was characterized as 53%. (Id. at 45.)
Petitioner attended eight physical therapy sessions from June 12, 2017, to July
31, 2017, with some improvement noted. (Ex. 13, pp. 34-53.) She was reevaluated on
September 25, 2017, after a two month hiatus.18 (Id. at 33.) At that time she noted her
pain to be eight at worst, one at best, and three at the time of evaluation.19 (Id.) The
physical therapists assessment was that petitioner “does demonstrate some GH laxity
and decreased scapular stability and RTC strength. This is leading to impingement and
RTC tendinitis.” (Id.) Petitioner reported that she “has referred herself back for PT after
taking a couple months off. She continues to have difficulty and pain reaching overhead
or in front. She has painful snapping and she feels pain deep in the joint. She does note
that the pain has not been keeping her awake at night.” (Id. at 30.) Her shoulder
disability was rated at 51%. (Id.) She attended nine physical therapy sessions between
September 25, 2017, and November 27, 2017, with little improvement reported. (Id. at
1-33.)
On December 18, 2017, petitioner returned for a further orthopedic evaluation.
(Ex. 19.) The orthopedist noted petitioner’s long history of physical therapy20 with
17 Active range of motion was recorded as 150 degrees flexion and 110 degrees abduction. Passive
range of motion was recorded at 160 degrees flexion and 125 degrees abduction with painful end feel.
(Ex. 13, p. 45.)
18 Petitioner characterized this return as a “last-ditch attempt” to find additional exercises or treatments
that would help her pain and range of motion issues. (Tr. 48.) During the hearing, petitioner stressed that
her physical therapy goals at this time still related to basic functions such as reaching overhead or behind
her back, specifically, petitioner’s goals included donning a pullover shirt and unhooking her bra without
pain. (Tr. 48-49.) Petitioner described the modified manner in which she accomplishes these things. (Id.)
Petitioner also stressed the pain scale she filled out at the time of the September 24, 2017 evaluation as
well. (Tr. 50-51 (referencing Ex. 13, p. 25.).) Petitioner indicated at the time of the hearing that she
would fill out the form much the same way if she were to do it again, but also noting that she had recently
aggravated her shoulder while boating. (Tr. 51.)
19 Active range of motion was 145 degrees flexion, 115 degrees abduction and passive range of motion
was 160 degrees flexion and 120 degrees abduction with painful end feel. (Ex 13, p. 30.)
20 Petitioner provided a history of having “undergone 50 sessions” of physical therapy. (Ex. 19, p. 1.)
Petitioner also testified that she attended over 50 physical therapy sessions. (Tr. 45.) It is not clear to the
undersigned what petitioner is referring to by 50 sessions. Upon the undersigned’s review of the
Continuum Physical Therapy records filed in this case, petitioner attended 35 physical therapy sessions.
(Ex. 3, 13.) She attended 18 sessions between January and May of 2016 (Ex. 3), eight sessions in June
and July of 2017 (Ex. 13, pp. 34-46), and nine sessions between September and November 2017 (Ex. 13,
pp. 1-33).
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“moderate” improvements in pain and range of motion. (Id. at 1.) Petitioner denied
having any pain at rest, but complained of restricted motion and described pain at the
end point of motion. (Id.) On physical exam the orthopedist noted active range of
motion of approximately 160 degrees forward flexion and 150 degrees abduction, with
70 degrees of external rotation and internal rotation to the lower thoracic spine. (Id. at
2.) He noted passive range of motion to be “mildly restricted.” (Id.) The orthopedist
concluded:
A long discussion was had with the patient today regarding the diagnosis,
prognosis, and treatment plan. We discussed the complexity of her
situation given the chronicity of her symptoms. I suspect she had a chronic
adhesive capsulitis with mildly restricted range of motion and mild
persistent pain. We discussed at length both the conservative and surgical
treatment options. In terms of conservative management, I would
recommend a fluoroscopically guided glenohumeral steroid injection. Post
injection, I stressed the importance of aggressive physical therapy working
on passive and active range of motion exercises. With regard to surgical
intervention, given the chronicity of her symptoms I cannot guarantee
100% full recovery. If the patient elects to entertain surgical intervention, I
would recommend an MRI for further evaluation. Patient would like to
consider her options moving forward. She will follow-up on an as-needed
basis. Jodi understands the treatment plan and all questions were
answered.
(Ex. 19, p. 2.)
Petitioner testified that she rejected the orthopedist’s recommendation for a
corticosteroid injection, because she was afraid of needles due to her injury being
caused by her vaccination injection. (Tr. 54.) She also recalled that the orthopedist told
her there is “a really good chance” surgery would not improve her condition. (Id.)
Petitioner indicated that her doctor told her that she might have reached maximal
improvement (“that this might be it and “that I might have to live with what I have”), but
she testified that he did not tell her how likely he felt that outcome was. (Tr. 55.)
Petitioner subsequently returned to her chiropractor several times. (Ex. 14, pp. 1-
14.) The most recent record filed in this case is from a June 12, 2018 chiropractic visit.
(Ex. 14, pp. 1-2.) That record indicates that, among other complaints, petitioner
“complained of frequent dull and tightness discomfort in the left trapezius. She rated the
intensity of the discomfort, using a VAS, as a level 4 on a scale of 1 to 10 with 10 being
the most severe. The discomfort was reported to increase with applied pressure. The
discomfort was reported to decrease with chiropractic care.” (Ex. 14, p. 1.) Examination
showed “shoulder ROM left was recorded as within normal range but with pain at end of
motion.” (Id. at 2.) The chiropractor felt that petitioner’s prognosis was “improving” and
that she “is expected to demonstrate improved function” due to her good response to
chiropractic care. (Id.) Petitioner testified that she has her chiropractor check her
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shoulder routinely. (Tr.56.) She also testified that she continues to do the home
exercises she learned in physical therapy and yoga21. (Tr. 64.)
As of the time of the hearing in this case (July 19, 2018), petitioner reported that
she had pain of about a five or six on a ten point scale. (Tr. 23.) She described the pain
as “fluctuating,” depending on how much she uses her arm. (Tr. 23-24.) She testified
that she experiences pain of about a five at rest, but up to about an eight when she is
engaged in physical activity. (Tr. 24-25.) Petitioner described her biggest challenge as
reaching overhead and also described other challenges with reaching motions. (Tr. 28,
44.) Petitioner also demonstrated her range of motion. (Tr. 91-93 .) The undersigned
observed that petitioner’s pain began at about 145 degrees abducted as well as with
flexion and extension. (Tr. 92-93.) Petitioner could reach around her back almost as
high as her bra strap. (Tr. 93.)
III. Impact on Personal Life
Petitioner testified that she and her husband are very active people. (Tr. 16.)
She explained that they enjoy a lot of outdoor activities such as hiking, snowshoeing,
downhill skiing and cross-country skiing and that her injury has interfered with these
activities. (Id.) She also noted that it interferes with travel and backpacking.22 (Tr. 58-
60.) Petitioner stressed, in particular, that she and her husband met on the basis of their
shared interest in sailing. (Tr. 17.) They had planned to do extensive sailing after he
retired. (Id.) She noted that they had been planning his early retirement for a long time
and that he has given his notice to retire in December of 2019, but now she does not
know if she will be able to fully participate given her injury. (Id.) Their retirement plan
involved coastal sailing out beyond the bay of Maine, but due to her injury she has been
afraid to sail beyond Penobscot Bay.23 (Tr. 27-28.)
Petitioner explained the physical demands required of sailing, including pulling
lines, working sails, cranking sails, pulling anchor, and even operating the tiller. (Tr. 25-
26.) She explained that these tasks involve overhead reaching and the use of both
arms. (Id.) Petitioner indicated that these tasks are not impossible for her now, but that
they are difficult and she has had to make modifications. (Tr. 26.) She characterized the
21 Petitioner also testified briefly to occasional informal treatments from a friend who is a hand therapist
and her sister-in-law who is a massage therapist. (Tr. 61-62.) The timing of these treatments was not
indicated.
22 Petitioner’s husband also described snorkeling, swimming, spelunking, diving, climbing, and bicycling
as shared activities. (Tr. 101.)
23 Petitioner testified that she has never sailed in the open ocean. (Tr. 88.) She is unsure if they ever will
sail out beyond the bay, because the waves and weather are different. (Id.) Petitioner’s husband
characterized the “retirement” more as a seven year or so hiatus from work which they planned to do
while still able bodied enough to sail. (Tr. 111-12.) He stressed their desire to sail down to the Caribbean,
but noted that petitioner cannot fully enjoy swimming because she cannot pull herself back up on the
boat. (Id.)
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resulting circumstance as “not ideal.” (Id.) As a result of her limitations, petitioner
testified that they had a “short” and “modified” sailing season in the year preceding the
hearing. (Tr. 26-27.) Petitioner’s husband similarly explained that petitioner’s limitation
may force modifications to their broader sailing plans, such as requiring the hiring of a
deck hand, in order to sail safely. (Tr. 103-05.) He also indicated that he and petitioner
would modify their roles on board so that she would do more piloting and he could take
on more physical tasks. (Id.) He further indicated that they would have to sell their
current boat and buy a boat with different equipment that petitioner could better handle
for safe sailing. (Tr. 111, 114.)
One particular task petitioner explained she can no longer do is called “belaying.”
(Tr. 26.) In sailing, belaying refers to hauling someone up on a rope line to the top of
the mast. (Id.) Petitioner explained that her husband goes to the top of the mast for
repair work and that she has historically belayed him while he is working, but since her
injury she can no longer do so. (Id.) Petitioner’s husband testified that as a result of
petitioner’s injury he has had to find other people to help him. (Tr. 102.)
Petitioner also described the impact her injury has had on her working life. (Tr.
30-31.) Petitioner previously worked on a seasonal basis as a caterer and waitress,
most recently in the Mount Abram ski resort area. (Tr. 16, 30.) Petitioner explained,
however, that when she returned from Vietnam she was unable to waitress, because
she couldn’t carry any trays. (Tr. 30.) Petitioner declined a position at Mount Abram as a
hostess and took a lower paid position as a cashier at Good Tern Co-op. (Tr. 30-31.)
However, even this position included some activities that were difficult for petitioner,
such as lifting and sweeping. (Tr. 29.) Ultimately, however, she was able to switch
positions to “supplement buyer,” which is a higher paying position.24
Additionally, Sheila Rollins testified that she and petitioner worked together in
catering for about ten years. (Tr. 81.) She testified that she observed petitioner most
recently at a catering event about one month prior to the hearing in this case. (Tr. 75.)
She testified that she noticed petitioner’s difficulty with range of motion in her arm and
stressed the degree to which catering requires lifting and carrying. (Tr. 75-77.) She also
recalled petitioner’s pain from May of 2016. (Tr. 81-82.) Ms. Rollins indicated that
petitioner’s limitations impacted her effectiveness at work. (Ex. 15, p. 6; Tr. 77-78.)
Petitioner also testified that her injury has been a strain on her marriage. (Tr. 60-
61.) Petitioner’s husband similarly testified that the pain and stress of the situation
impacted their intimacy and domestic life, including petitioner’s ability to participate in
home remodeling projects and daily chores such as making up the bed or taking laundry
off the drying line. (Tr. 108-10.)
24 Petitioner is not asserting any claim for lost wages. (Tr. 31.)
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IV. Party Contentions
In addition to compensation for her past unreimbursed medical expenses,
petitioner seeks an award of compensation for her pain and suffering of between
$175,000.00 and $200,000.00.25 (ECF No. 42, p. 1.) In requesting such an award,
petitioner stresses in her pre-hearing brief26 the long (three year) duration of her injury
as well as the fact that her most recent medical records show ongoing pain and reduced
range of motion. (Id. at 11.) In that regard, she stresses that the record shows that she
“tried every possible treatment modality.” (Id. at 12.) Based on the failure of these
treatments and the duration of her condition to this time, petitioner argues that she
“must now accept that her condition will not improve.”27 (Id.) She also stresses that her
testimony and medical records demonstrate that for the first year of her injury her pain
was “excruciating.” (Id. at 11.) She further notes that the injury has had an impact on
her personal life, including hindering her activities of daily living as well as impacting her
employment and her sailing. (Id. at 11-12.) She argues that these issues, and the
resulting anxiety, leave her “acutely” aware of her injury. (Id. at 12.) In sum, petitioner
contends that the record evidence shows that “she still suffers from a nasty SIRVA.”
(Id. at 13.) Petitioner states that she “acknowledges that [while] she is not as debilitated
as she was during the first year of her injury, significant residua remain and they
continue to haunt her life daily.” (Id.)
In his prehearing brief, respondent proposed an award for petitioner’s pain and
suffering of $45,000.00. (ECF No. 40, p. 1.) Respondent stressed that the medical
records do not support petitioner’s claim of immediate, severe pain that continues to
date. (Id. at 6.) Respondent argued that the records reflect active treatment of only
about five and a half months, from January 6, 2016, to June 24, 2016. (Id.)
Respondent contended that “petitioner’s records are marked by the absence of
significant pain, disability, and medical treatment. Namely, she did not undergo surgery
25 Petitioner proposes that SIRVA claims should be categorized based on severity and duration as “rough
guidelines” for awarding compensation. (ECF No. 42, p. 20-21.) Specifically, petitioner asserts that
appropriate awards for pain and suffering would be as follows:
Injuries lasting six months: $100,000 - $125,000
Injuries from six months to one year: $125,000 - $160,000
Injuries lasting one year to two: $160,000 - $190,000
Permanent residua (non-debilitating): $175,000 - $250,000
Permanent residua (debilitating): over $250,000 (reduced by cap to $250,000)
(ECF No. 42, p. 22.) The undersigned notes that, as described below, these proposed awards are
significantly higher than what has typically been awarded in SIRVA cases. See Kim, infra.
26 Petitioner’s counsel also offered an opening statement at the beginning of the hearing. (Tr. 6-15.) The
opening statement addressed the same reasoning as included in petitioner’s pre-hearing brief, but
provided further elaboration on the aspects of the evidentiary record petitioner wishes to stress. (Id.)
27 Based on life expectancy, petitioner argues she will suffer her current condition for 30 years. (ECF No.
42, p. 13.)
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or other procedures; she did not require prescription medication; she did not seek
ongoing treatment for impaired range of motion or loss of strength; and she did not have
any cortisone injections.” (Id. (emphasis original).) Respondent concluded that
petitioner’s contemporaneous medical records “demonstrate that her clinical course did
not necessitate immediate or ongoing treatment.” (Id. at 7.) Subsequently, however, in
light of later-filed records and the evidence elicited at the damages hearing, respondent
revised his recommendation to $92,500.00. (ECF No. 52.) Respondent has no
objection to certain of petitioner’s claimed expenses as filed at Exhibit 17 totaling
$1,060.59. (Id.) However, respondent agrees only to $1,908.46 of the expenses
included within Exhibit 16. (Id. at 2.)
V. Discussion
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.” § 15(a)(4). Additionally, petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. HHS, No. 93-92V, 1996
WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Medical records are the
most reliable evidence regarding a petitioner’s medical condition and the effect it has on
her daily life. Shapiro v. HHS, 101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt
that the decisional law in the vaccine area favors medical records created
contemporaneously with the events they describe over subsequent recollections.”)
a. Pain and suffering
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. HHS, No. 04- 1593V, 2013 WL 2448125 at *9
(Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently
subjective and cannot be determined by using a mathematical formula”); Stansfield v.
HHS, No. 93-172V, 1996 WL 300594 at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the
assessment of pain and suffering is inherently a subjective evaluation”). 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. 28 I.D., 2013 WL
28 In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times
petitioner was a competent adult with no impairments that would impact her awareness of her injury.
Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s
injury.
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2448125, at *9; McAllister v. HHS, No 91-103V, 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).
The undersigned may also look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering this case.
Jane Doe 34 v. HHS, 87 Fed. Cl. 758, 768 (2009)(finding that “there is nothing improper
in the chief special master’s decision to refer to damages for pain and suffering awarded
in other cases as an aid in determining the proper amount of damages in this case.”)
And, of course, the undersigned also may rely on her own experience adjudicating
similar claims.29 See Hodges v. HHS, 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that
Congress contemplated the special masters would use their accumulated expertise in
the field of vaccine injuries to judge the merits of individual claims). Importantly,
however, it must also be stressed that pain and suffering is not determined based on a
continuum. Graves v. HHS, 109 Fed. Cl. 579 (2013).
In Graves, Judge Merow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merow noted that this constituted “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl.
at 590. Instead, Judge Merow assessed pain and suffering by looking to the record
evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595.
In that regard, the undersigned notes that over the past four years the Special
Processing Unit has amassed a significant history regarding damages in SIRVA cases.
In Kim v. HHS, the undersigned explained that after four years of SPU experience, 864
SIRVA cases were resolved informally as of July 1, 2018. 2018 WL 3991022, at *6. The
undersigned noted that the median award for cases resolved via government proffer is
$100,000.00 and the median award for cases resolved via stipulation by the parties is
$71,355.26.30 Id. In Kim, the undersigned rejected petitioner’s citation to a few isolated
29 From July 2014 until September 2015 the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.
30 The undersigned further stressed that the “typical” range of SIRVA awards – meaning the middle
quartiles – is $77,500.00 to $125,000.00 for proffered cases and $50,000.00 to $95,228.00 for stipulated
cases. The total range for all informally resolved SIRVA claims – by proffer or stipulation – spans from
$5,000.00 to $1,500,000.00. 2018 WL 3991022 at *6. Importantly, these amounts represent total
compensation and typically do not separately list amounts intended to compensate for lost wages or
expenses. Id. The undersigned noted that “[t]hese figures represent four years’ worth of past informal
resolution of SIRVA claims and represent the bulk of prior SIRVA experience in the Vaccine Program.
However, these figures are subject to change as additional cases resolve and do not dictate the result in
this or any future case. Nor do they dictate the amount of any future proffer or settlement.” Id.
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proffers and noted that “to the extent prior informal resolutions are to be considered, the
undersigned finds that the overall history of informal resolution in SPU provides a more
valuable context for assessing the damages in this case. Since it reflects a substantial
history of resolutions among many different cases with many different counsel, the
undersigned is persuaded that the full SPU history of settlement and proffer conveys a
better sense of the overall arms-length evaluation of the monetary value of pain and
suffering in a typical SIRVA case.”31 Id. at *9.
Additionally, since the inception of SPU in July 2014, there have been several
reasoned decisions by the undersigned awarding damages in SPU SIRVA cases where
the parties were unable to informally resolve damages. Typically, the primary point of
dispute has been the appropriate amount of compensation for pain and suffering. To
date, these decisions are32: Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804 (Fed.
Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and
$336.20 in past unreimbursable medical expenses); Dhanoa v. HHS, No. 15-1011V,
2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $94,900.99 for pain
and suffering and $862.14 in past unreimbursable medical expenses); Marino v. HHS,
No. 16-622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018) (awarding
$75,000.00 for pain and suffering and $88.88 in unreimbursable medical expenses);
Knauss v. HHS, No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018)
(awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable medical
expenses); Collado v.HHS, No. 17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June
6, 2018) (awarding $120,000.00 for pain and suffering and $772.53 in unreimbursable
medical expenses); Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr.
July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 for medical
expenses); Dobbins, No. 16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15,
2018) (awarding $125,000.00 for pain and suffering and $3,143.80 for medical
expenses).
In their respective briefs, the parties compared the instant case to Desrosier,
Dhanoa, and Marino.33 Additionally, petitioner cited two decisions issued by other
31 Petitioner cited the following informal resolutions: Deak v. HHS, No. 14-668V ($160,000.00); Jenny v.
HHS, No. 14-338V ($140,000.00); Brand v HHS, No. 12-549 ($178,225.98); and Strobel v. HHS, No. 15-
1375V ($184,750.00). Additionally, petitioner sought to distinguish the informal resolutions in Curtis v.
HHS, No. 16-85V ($91,217.75) and Ponsness, No. 15-826V ($95,000.00). Respondent cited informal
resolutions in Crefasi v. HHS, No. 15-166V ($50,000.00); Varblow v. HHS, No. 15-931V ($35,000.00);
Burkart v. HHS, No. 14-581V ($35,000.00); Grant v. HHS, 13-743V ($35,785.00); and Hamilton v HHS,
No. 15-701V ($50,000.00).
32 This list is limited to those decisions which have been made public at the time of issue of this decision.
33 The briefs in this case were filed on July 5, 2018. Although the Knauss and Collado decisions cited
above were issued before the briefs were filed, they were not made publicly available until after the
parties had filed their briefs. Kim and Dobbins were decided after the briefs had been submitted.
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special masters in prior SIRVA cases.34 In Anthony v. HHS, petitioner was awarded
$248,540.00 for pain and suffering. No. 14-680V, 2016 WL 1169147 (Fed. Cl. Spec.
Mstr. Mar. 2, 2016).35 In Courbois v. HHS, petitioner was awarded $142,794.40 for pain
and suffering. No. 13-939V, 2016 WL 2765092 (Fed Cl. Spec. Mstr. Apr. 20, 2016).36
The undersigned is mindful of all of the above; however, in determining an award
in this case, the undersigned does not rely on a single decision or case. Rather, the
undersigned has reviewed the particular facts and circumstances in this case, giving
due consideration to the circumstances and damages in other cases cited by the parties
and other relevant cases, as well as her knowledge and experience adjudicating similar
cases. Upon the undersigned’s review of the complete record in this case and in
consideration of the undersigned’s experience evaluating SIRVA claims, the
undersigned finds that an award of $110,000.00 is appropriate in this case.
The undersigned finds that petitioner experienced approximately eight months of
severe or significant pain following her SIRVA followed by a longer period of residual
pain and reduced range of motion. This is based on petitioner’s testimony as well as on
the course of her treatment. Petitioner testified that her worst period of pain lasted for
between six to nine months. (Tr. 32.) However, after eight months of treatment,
beginning on June 24, 2016, petitioner began a one year hiatus from physical therapy
before returning on June 27, 2017. (Ex. 9, p.1; Ex. 13, pp. 45-53.)
As described above, there is also significant evidence of further residua following
this eight-month period, involving both pain and restricted range of motion.
Notwithstanding the gaps in her physical therapy, petitioner remained in physical
therapy through November of 2017, more than two years following her injurious
vaccination. (Ex. 13, pp. 1-33.) The physical therapy records document ongoing
difficulties with both pain and range of motion. Moreover, her orthopedist remarked on
the chronicity of petitioner’s condition in December of 2017. (Ex. 19, p. 2.) Further,
petitioner demonstrated her range of motion during the hearing. (Tr. 91-93.) The
undersigned finds that petitioner continued to experience residual pain and reduced
range of motion through the date of the hearing in this case, approximately two years
and nine months following petitioner’s injurious vaccination.
34 Petitioner also cited several intussusception cases; however, in the undersigned’s view, such cases are
not sufficiently analogous to be instructive.
35 The decision issued in the Anthony case did not address the factors that contributed to the special
master’s award. The special master had previously ruled from the bench following a damages hearing.
Of note, although the facts are not disclosed, the award in Anthony also included a significant award for
future life care expenses, suggesting a level of disability far beyond what the instant petitioner
experienced and far beyond the typical SIRVA. In the undersigned’s experience, it is highly unusual that
a SIRVA would warrant an award for future life care.
36 Like Anthony, the special master in Courbois had made a prior oral ruling and the factors contributing to
the special master’s award were not disclosed.
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Additionally, the undersigned has considered the extent to which petitioner’s
injury has impacted her personal life. In particular, petitioner has credibly explained
how her injury has demonstrably impacted her active lifestyle. Most notably, petitioner’s
condition has interfered, at least temporarily, with her ability to sail with her husband, an
activity which both she and her husband testified is central to their marriage and
lifestyle.
The undersigned’s award is also tempered, however, by competing evidence
with regard to the severity of petitioner’s pain. On one hand, petitioner testified credibly
that her condition was very painful. Additionally, the contemporaneous records include
notations which identify high levels of pain and disability. (See, e.g. Ex. 3, p. 2, 39.) On
the other hand, petitioner did not seek any formal medical treatment for her condition
until January 6, 2016.37 (Ex. 3, p. 47; Ex. 10, p. 3.) She did not seek orthopedic care
until March 11, 2016. (Ex. 7, p. 1.) Once she began active treatment, she discontinued
physical therapy for a full year. Diagnostic studies (ultrasound) were negative for
abnormalities (Ex. 7, p. 2) and petitioner never underwent any surgery or had any MRI
imaging performed. Despite the duration of her residua, petitioner had only two
orthopedic consultations. Each time, she opted for more conservative treatment and
declined a corticosteroid injection for pain relief. (Ex. 7, p. 2; Ex. 19, p. 2; Tr. 54.)
Moreover, the undersigned does not find preponderant evidence to support an
award of future pain and suffering. Notwithstanding petitioner’s testimony that she fears
her condition is irresolvable, petitioner made progress throughout her active treatment.
At her last orthopedic consultation, her pain and range of motion were deemed to be
only “mild.” (Ex. 19, p. 2.) And although petitioner testified that the orthopedist
suggested she might have reached maximal improvement, she also testified that he did
not express any opinion regarding how likely that outcome would be. (Tr. 55.)
Petitioner’s more recent chiropractic records reflect range of motion “within normal
range but with pain at the end of motion.” (Ex. 14, p. 2.) According to petitioner’s
chiropractor, petitioner’s prognosis is “improving” and further improved function was
expected. (Id.) In December of 2017, petitioner was released from orthopedic care to
return on an “as needed” basis.38 (Ex. 19, p. 2.) Thus, there are no medical records and
no medical expert evidence to support petitioner’s claim for an award for projected pain
and suffering. As noted above, petitioner bears the burden of proof with respect to each
37 Notwithstanding that petitioner explained that her trip to Vietnam and her subsequent care for her
mother in her final days caused her delay in seeking treatment, the fact of the delay remains a relevant
consideration regarding the severity of petitioner’s condition. See, e.g. Marino, 2018 WL 2224736, at *8
(noting that “the fact that Ms. Marino delayed seeking treatment is relevant to the value of her claim, but
does not defeat her claim.”)
38 Petitioner filed a letter from her massage therapist stating that “I recommend Message Therapy once
per week for the indefinite future as part of Jodi Cooper’s continued care for her shoulder. We have seen
great benefit in her receiving regular massage.” (Ex. 22.) The undersigned does not find that this letter
provides significant weight supporting any award for either future pain and suffering or future medical
expenses.
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element of compensation requested and medical records are the most reliable evidence
of petitioner’s condition. Brewer, 1996 WL 147722, at *22-23; Shapiro, 101 Fed. Cl. at
537-38.
Thus, in light of all of the above, the undersigned finds that $110,000.00
represents an appropriate award for petitioner’s actual or past pain and suffering.
b. Unreimbursable Expenses
Initially, petitioner filed documentation for unreimbursed medical expenses as
Exhibits 16 and 17. (ECF No. 43.) Exhibit 16 was identified as out-of-pocket expenses
submitted39 June 5, 2017, and included costs totaling $3,583.54. (ECF No. 43-4.)
Exhibit 17 was identified as out-of-pocket expenses submitted July 5, 2018, and
included costs totaling $1,060.59. (ECF No. 43-5.) Respondent indicated that he had
no objection to the $1,060.59 of expenses contained in petitioner’s Exhibit 17, but that
he did not feel the expenses claimed in Exhibit 16 were sufficiently documented. (ECF
No. 46.) Subsequently, petitioner filed as Exhibit 20 additional documentation in
support of the expenses listed in Exhibit 16 (ECF No. 47); however, there remained
confusion regarding whether the expenses reflected in the two exhibits (Exhibits 16 and
20) matched perfectly (ECF No. 52). Nonetheless, respondent agreed that Exhibit 16
reflected $1,908.46 in compensable expenses. (ECF No. 52.)
Several points were discussed regarding petitioner’s expenses during the
hearing. (Tr. 66-69, 90-91, 94-98.) Following the hearing, petitioner refiled her expense
documentation as Exhibit 21, titled as “Combined Out of Pocket Expenses.”40 (ECF No.
51.) In Exhibit 21, petitioner indicates that she has a total of $4,208.81 in expenses,
including only a reduced amount of $2,902.65 in expenses submitted June 5, 2017, the
same $1,060.59 in expenses submitted July 5, 2018, $158.37 for “Intermed PA”
submitted on July 18, 2018, and $87.20 for mileage to travel to the damages hearing on
July 19, 2018. (Ex. 21, p. 1.) Subsequently, petitioner filed a further charge from
Ainslee Pine-Massage Therapist of $96.00 for services on September 17, 2018. (Ex.
23.)
39 “Submitted” presumably refers to the parties’ prior settlement discussions. Petitioner provided a
demand for settlement to respondent on June 5, 2017. (ECF No. 18.)
40 During the hearing, petitioner’s counsel had represented that Exhibit 21 would be a cover sheet to
accompany the documentation included in Exhibit 20. However, petitioner’s Exhibit 21 represents a
refined list of the expenses previously identified as “submitted June 5, 2017,” with supporting
documentation, a refiling of the expenses previously identified as “submitted July 5, 2018,” and some
further expenses. (Ex. 21.) The list of expenses included in Exhibit 21 exactly matches the documentation
included in that exhibit, but does not match the list of expenses included in Exhibit 16. Accordingly, the
undersigned concludes that the list of expenses at Exhibit 21 supersedes the previously filed Exhibits 16
and 17.
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Respondent has indicated that he has no objection to expenses from Continuum
Physical Therapy,41 Bay Chiropractic Rockland, Eileen Murray Acupuncture, Bethel
Station Chiropractor, and OA Centers for Orthopedics. (ECF No. 52, p. 2.) Respondent
objects to expenses from Jensen’s Pharmacy, Good Tern Nature Co-op (supplements),
Intermed PA, Synergy Massage; Frozen Shoulder Exercises Website, and Ainslee Pine-
Massage Therapist. (Id.) Respondent contends that these expenses either were not
“reasonably necessary” or lacked supporting documentation. (Id.) Respondent also
disputes the $87.20 in mileage claimed as that is better characterized as a litigation
expense. (Id. at 3.)
The undersigned has reviewed petitioner’s expenses and supporting
documentation as filed at Exhibit 21. Upon the undersigned’s review, petitioner has
documented $1,647.25 in expenses incurred at Continuum Physical Therapy, $124.39
at Bay Chiropractic Rockland, $216.75 at Eileen Murray Acupuncture, $94.32 at Bethel
Station Chiropractor, and $372.31 at OA Centers for Orthopedics. In total, this amounts
to $2,455.02 of expenses which are not disputed by respondent.
Additionally, the undersigned has considered petitioner’s testimony regarding the
effectiveness of her massage therapy as well as her testimony explaining that her
purchases from the Good Tern Co-op, which were labeled as “supplements,” were
actually topical pain relievers for muscle as well as oral supplements for joint health
recommended by her acupuncturist.42 (Tr. 52-53, 65-66, 91.) Accordingly, the
undersigned concludes that petitioner’s expenses from the Good Tern Nature Co-op,
Synergy Massage, and Ainslee Pine – Massage Therapist were reasonably necessary
in light of petitioner’s testimony placing these modalities in the context of her overall
treatment plan and preferences. However, the undersigned does find that the charge of
$300.00 incurred on April 11, 2016, from Ainslee Pine – Massage Therapist is
inconsistent with and substantially more than the remaining charges from that provider
and the substantially increased amount is not adequately explained. Accordingly, the
undersigned does not find that charge to be sufficiently documented. Thus, upon the
undersigned’s review of petitioner’s Exhibit 21 and 23, the undersigned finds that
petitioner has documented reasonable expenses from these providers in the amount of
$1,122.08. This includes $376.00 from Synergy Massage, $532.00 from Ainslee Pine –
Massage Therapist, and $214.08 from Good Tern Nature Co-op.
The undersigned also finds that petitioner’s expense of $5.99 related to obtaining
access to a home exercise website for frozen shoulder was reasonable. Additionally,
the undersigned finds that petitioner’s documentation supports only a claim of $59.23
for charges related to petitioner’s January 6, 2016 visit to Intermed. The remainder of
41 Respondent did indicate that he objects to one charge from Continuum Physical Therapy (dated
September 19, 2016) as undocumented; however, that charge appeared only in petitioner’s Exhibit 16
and was subsequently removed when petitioner refiled her expenses as Exhibit 21.
42 Significantly, respondent does not object to the expenses related to the acupuncture treatment itself.
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the charges related to that provider appear to be unrelated to petitioner’s shoulder
condition.
The undersigned has reviewed all of petitioner’s submitted documents and
concludes, for all the reasons described above, that petitioner is entitled to
compensation for unreimbursable expenses in the amount of $3,642.33.43 The
undersigned is not persuaded by the remainder of petitioner’s expense claims.44
VI. Conclusion
In light of all of the above, and in consideration of the record as a whole, the
undersigned finds that petitioner should be awarded $110,000.00 in compensation for
actual (or past) pain and suffering and $3,642.33 in compensation for past
unreimbursable expenses. The undersigned makes no award for projected pain and
suffering, future medical expenses, or past or future lost wages.
Accordingly, the undersigned awards petitioner a lump sum payment of
$113,642.33, representing $110,000.00 in compensation for actual pain and
suffering and $3,642.33 in compensation for past unreimbursable expenses, in
the form of a check payable to petitioner, Jodi Cooper. This amount represents
compensation for all damages that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 45
43 As explained above, this amount includes the following:
$1,647.25 Continuum Physical Therapy
$124.39 Bay Chiropractic Rockland
$216.75 Eileen Murray Acupuncture
$94.32 Bethel Station Chiropractic
$372.31 OA Center for Orthopedics
$376.00 Synergy Massage
$532.00 Ainslee Pine – Massage Therapist
$214.09 Good Tern Nature Co-op
$5.99 Frozen Shoulder Exercise Website
$59.23 Intermed
$3,642.33 Total
44 The undersigned agrees with respondent that petitioner’s mileage reimbursement is better addressed
as a litigation expense to be submitted with petitioner’s application for attorneys’ fees and costs.
45 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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IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
22