VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00226
Package ID: USCOURTS-cofc-1_18-vv-00226
Petitioner: Kimberly Rayborn
Filed: 2018-02-14
Decided: 2020-09-14
Vaccine: influenza
Vaccination date: 2016-09-21
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 55619

AI-assisted case summary:
Kimberly Rayborn filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine received on September 21, 2016. The case proceeded as a Table injury claim, and the court found that Petitioner was entitled to compensation. The medical records indicated that Petitioner first presented with left shoulder pain approximately four months after vaccination, reporting that the pain began on the evening she received the flu vaccine. She experienced pain, limited range of motion, and tenderness, and underwent an MRI, orthopedic consultations, and occupational therapy. The court found that Petitioner met the criteria for a Table SIRVA, including the lack of prior shoulder issues, onset of pain within 48 hours of vaccination (as previously ruled upon), pain limited to the affected shoulder, and no other condition explaining the symptoms. The court awarded Kimberly Rayborn a total of $55,619.60, comprising $55,000.00 for actual pain and suffering and $619.60 for past unreimbursable expenses.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00226-0
Date issued/filed: 2019-09-17
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/07/2019) regarding 27 Findings of Fact & Conclusions of Law, ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
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Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0226V
Filed: June 7, 2019
UNPUBLISHED
KIMBERLY RAYBORN,
Special Processing Unit (SPU);
Petitioner, Findings of Fact; Onset; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH (SIRVA)
AND HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
FACT RULING AND SCHEDULING ORDER – SPECIAL PROCESSING UNIT1
Dorsey, Chief Special Master:
On February 14, 2018, Kimberly Rayborn (“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” or “the Act”). Petitioner alleges that she
suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a result of
an influenza (“flu”) vaccine she received on September 21, 2016. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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 published ruling 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).

Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 2 of 6
Petitioner now moves for a ruling on the record making a finding of fact that the
onset of petitioner’s shoulder injury was within 48 hours of receiving the flu vaccination.
ECF No. 25, Petitioner’s Motion for a Fact Ruling on the Issue of Onset (“Motion”). For
the reasons discussed below, the undersigned grants petitioner’s Motion and finds that
the onset of petitioner’s shoulder injury was within 48 hours of her September 21, 2016
flu vaccination.
I. Procedural History
On February 14, 2018, in addition to the petition, petitioner filed medical records
as Exhibits 1-3 and an affidavit as Exhibit 4. (ECF No. 1). On February 20, 2018,
petitioner filed the vaccine administration record as Exhibit 5 and, on February 26, 2018,
filed a statement of completion. (ECF Nos. 6, 8). Immediately following the March 20,
2018 initial status conference, petitioner filed additional medical records as Exhibits 6
and 7. (ECF No. 10). On April 10, 2018, petitioner filed an amended petition in which
the date of vaccination was corrected. (ECF No. 11). Petitioner’s second affidavit and a
more detailed record of vaccine administration were filed on April 13 and April 23, 2018
as Exhibits 8 and 9. (ECF Nos. 13, 14).
On November 14, 2018, respondent filed the Rule 4(c) Report asserting that
petitioner had not demonstrated entitlement to compensation. Respondent’s Report
(ECF No. 23). Specifically, respondent argued that the record is insufficient to
substantiate that the onset of petitioner’s left shoulder symptoms began within forty-
eight hours of vaccination because “petitioner did not seek care for her alleged injury
until . . . almost four months after the vaccination.” Id. at 3.
On November 20, 2018, the undersigned ordered petitioner to file a detailed
affidavit and Motion for a Ruling on the Record regarding onset. See Scheduling Order
at 1 (ECF No. 24). Petitioner filed her Motion on January 14, 2019 without an affidavit.
(ECF No. 25). Respondent filed his response on March 5, 2019. (ECF No. 26). Thus,
petitioner’s Motion is now ripe for adjudication.
II. Relevant Factual History
On September 21, 2016, petitioner received a flu vaccination in her left arm. Ex.
9. Petitioner’s medical history does not appear to be contributory to her claim in this
case. See generally Ex. 7 at 34-35 (listing petitioner’s past medical history and “active
problems.”).
Approximately 4 months later, on January 18, 2017, petitioner first presented to
Nurse Practitioner (“NP”) Anne Musgrove at Memorial Southern Coast Family Medicine
with complaints of left shoulder pain. Ex. 3 at 4. According to the clinical record,
petitioner’s pain “began in September on the evening she received her flu vaccine at
work.” Id. It is noted that petitioner initially attempted to treat her shoulder with
nonsteroidal anti-inflammatory drugs (“NSAIDs”) and sought to alleviate pain through
the strategic placement of pillows during the night and limiting weight-bearing activities.
Id. Despite these measures, petitioner’s shoulder pain continued. Id. It was also noted
2

Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 3 of 6
that “abduction of the left arm is limited to approximately 85 [degrees] actively and 94
[degrees] passively. There is some weakness in her left hand, sometimes losing her
grip strength.” Id. The clinical notes reflect “constant 2/10 dull aching with episodes of
6/10 pain with abduction of L[eft] arm.” Id. NP Musgrove diagnosed petitioner with a
vaccine reaction and referred her for magnetic resonance imaging (“MRI”). Id. at 5.
On January 22, 2017, petitioner underwent an MRI of her left shoulder. Id. at 1-
2. The MRI report notes petitioner’s “[l]imited range of motion of the shoulder since the
fluid [sic] shot.” Id. at 1. The MRI revealed “some mild thickening of the joint capsule at
the axillary recess which can be seen with adhesive capsulitis.” Id. at 2.
On February 2, 2017, petitioner presented to Dr. Arthur D. Black, an orthopedist.
Ex. 6 at 1-2. Petitioner reported left shoulder pain “that started approximately 4 months
ago after receiving a flu shot in the same shoulder.” Id. at 1. Petitioner further reported
having had “some relief [of] some of the symptoms with activity modification and anti-
inflammatories however they have not completely resolved.” Id. Petitioner was
assessed with “left shoulder bursitis, slow to resolve,” and was given a cortisone
injection. Id. at 2.
Petitioner returned to Dr. Black on March 21, 2017 to follow-up on her left
shoulder pain. Id. at 3-4. The clinical notes indicate that while the previously
administered cortisone injection had initially provided pain relief, petitioner’s symptoms
were beginning to return. Id. at 3. Petitioner was assessed with having left shoulder
impingement symptoms and petitioner was prescribed physical therapy. Id. at 4.
On April 21, 2017, petition completed a Vaccine Adverse Event Reporting
System form (“VAERS Report”) indicating “left shoulder pain onset [illegible] injection.”
Ex. 1 at 2. The date of onset is listed as September 21, 2016. Id.
Petitioner participated in 13 sessions of occupational therapy from March 30,
2017 through June 20, 2017. Ex. 2 at 40-68. The outpatient evaluation note states that
petitioner “has a history of approximately 6 months of left shoulder pain.” Id. at 68.
In petitioner’s second affidavit, petitioner states that she began experiencing left
shoulder pain following her September 21, 2016 flu shot. Ex. 8 at ¶ 3. Petitioner
explains that, “[i]n the past with vaccination, I had often experienced some mild
soreness typically resolving within a few days.” Id. Petitioner explained that, unlike the
soreness she experienced following previous vaccinations, the pain that followed her
September 21, 2016 vaccination persisted. Id. Petitioner noted that as “a nurse
practitioner and busy mom I continued to just treat supportively. Once I began having
limited range of motion as well as continued pain, I knew there was something more
wrong.” Id.
III. Discussion
a. Applicable Legal Standard
3

Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 4 of 6
Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed
on the Vaccine Injury Table (“Table”). See Vaccine Injury Table: Qualifications and aids
to interpretation. 42 C.F.R. § 100.3(c)(10). Therefore, the undersigned’s findings are
informed by the Qualifications and Aids to Interpretation for SIRVA criteria used to
evaluate such claims. The criteria 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).
Id.; 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). The criteria at issue in this
case is whether petitioner’s pain occurred within the specified time-frame of 48 hours or
less after administration of her September 21, 2016 flu vaccination. The undersigned
finds that it does.
b. Evaluation of the Evidence
The parties dispute whether petitioner has satisfied her burden of proof as to the
second SIRVA criteria: “[pain occur[ring] within the specified time-frame.” To meet this
criterion, petitioner must show by preponderant evidence that her left shoulder pain
began within 48 hours of her September 21, 2016 flu vaccination. 42 U.S.C. § 300aa–
13(a)(1)(A); 42 C.F.R. § 100.3(c)(10). 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
September 21, 2016 flu vaccination.
It is undisputed that petitioner was not seen by a healthcare provider until
January 18, 2017, almost four months after her September 21, 2016 flu shot. However,
the medical records provide preponderant evidence demonstrating that the onset of her
shoulder pain began within 48 hours of the administration of the flu vaccine. On the first
occasion that petitioner sought treatment for her left shoulder injury, she reported that
her shoulder pain “began in September on the evening she received her flu vaccine.”
Ex. 7 at 10. Moreover, in recounting petitioner’s history of shoulder pain, the report
4

Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 5 of 6
documenting petitioner’s January 22, 2017 MRI indicates that she experienced limited
range of motion in her left shoulder since the “fluid [sic] shot.” Id. at 4. Consistent with
this timeline is petitioner’s February 2, 2017 report to her orthopedist that her shoulder
pain “started approximately 4 months ago after receiving a flu shot in the same
shoulder.” Ex. 6 at 1. Petitioner’s subsequent occupational therapy evaluation on
March 30, 2017 further corroborates petitioner’s claim that her shoulder pain began
within 48 hours of the flu vaccination: It is noted that petitioner “has a history of
approximately 6 months of left shoulder pain.” Ex. 2 at 68. Moreover, petitioner’s
VAERS Report indicates an onset date of September 21, 2016, the date of petitioner’s
vaccination.
The undersigned recognizes that some of the aforementioned medical records
are imprecise regarding onset (e.g., “approximately 4 months ago”); however, it would
be a mistake to overanalyze these notations in search of a precise onset date when
these notes were provided as generalizations. The reported timeframe reflected by the
record as a whole encompass the 48-hour post-vaccination period. Moreover, it is
significant that on January 18, 2017, the first time petitioner sought treatment for her
shoulder, she reported that her pain began “on the evening she received the flu
vaccine.” Ex. 7 at 10.
Additionally, the undersigned finds petitioner’s second affidavit explaining her
delay in seeking treatment to be reasonable and credible. See, e.g., Stevens v. Sec’y
of Health & Human Servs., 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 indicated that she had previously
experienced mild soreness after vaccinations that typically resolved within a few days.
Ex. 8 at 1. Petitioner also indicated that, as a nurse and busy mom, she initially sought
to treat the pain with ibuprofen and by applying ice. Id. at 2. Given that petitioner was
noted to have had “some relief [of] symptoms with activity modification and anti-
inflammatories,” (Ex. 6 at 1) petitioner’s decision not to seek immediate attention was
reasonable. Further, because petitioner is a nurse, and it is typical for many medical
professionals to self-treat, they often wait before seeking formal medical treatment. In
the undersigned’s experience, petitioner’s affidavits and medical records as a whole
reflect a pattern of treatment consistent with and similar to many other compensated
SIRVA claims.
Based on the record as a whole, the undersigned finds that there is preponderant
proof that the onset of petitioner’s left shoulder pain occurred within 48 hours of her
September 21, 2016 flu vaccination.
IV. Conclusion
The undersigned finds, based on the record as a whole, that the onset of
petitioner’s left shoulder pain was within forty-eight (48) hours of her September
21, 2016 influenza vaccination.
The parties are encouraged to consider an informal resolution of this claim.
Petitioner shall file a joint status report by no later than Monday, July 8, 2019,
5

Case 1:18-vv-00226-UNJ Document 35 Filed 09/17/19 Page 6 of 6
updating the court on the status of the parties’ progress informally resolving this
claim.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00226-1
Date issued/filed: 2019-10-10
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/07/2019) regarding 27 Findings of Fact & Conclusions of Law, Signed by Special Master Nora Beth Dorsey. (ypb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0226V
Filed: June 7, 2019
UNPUBLISHED
KIMBERLY RAYBORN,
Special Processing Unit (SPU);
Petitioner, Findings of Fact; Onset; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH (SIRVA)
AND HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
FACT RULING AND SCHEDULING ORDER – SPECIAL PROCESSING UNIT1
Dorsey, Chief Special Master:
On February 14, 2018, Kimberly Rayborn (“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” or “the Act”). Petitioner alleges that she
suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a result of
an influenza (“flu”) vaccine she received on September 21, 2016. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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 published ruling 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).

Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 2 of 6
Petitioner now moves for a ruling on the record making a finding of fact that the
onset of petitioner’s shoulder injury was within 48 hours of receiving the flu vaccination.
ECF No. 25, Petitioner’s Motion for a Fact Ruling on the Issue of Onset (“Motion”). For
the reasons discussed below, the undersigned grants petitioner’s Motion and finds that
the onset of petitioner’s shoulder injury was within 48 hours of her September 21, 2016
flu vaccination.
I. Procedural History
On February 14, 2018, in addition to the petition, petitioner filed medical records
as Exhibits 1-3 and an affidavit as Exhibit 4. (ECF No. 1). On February 20, 2018,
petitioner filed the vaccine administration record as Exhibit 5 and, on February 26, 2018,
filed a statement of completion. (ECF Nos. 6, 8). Immediately following the March 20,
2018 initial status conference, petitioner filed additional medical records as Exhibits 6
and 7. (ECF No. 10). On April 10, 2018, petitioner filed an amended petition in which
the date of vaccination was corrected. (ECF No. 11). Petitioner’s second affidavit and a
more detailed record of vaccine administration were filed on April 13 and April 23, 2018
as Exhibits 8 and 9. (ECF Nos. 13, 14).
On November 14, 2018, respondent filed the Rule 4(c) Report asserting that
petitioner had not demonstrated entitlement to compensation. Respondent’s Report
(ECF No. 23). Specifically, respondent argued that the record is insufficient to
substantiate that the onset of petitioner’s left shoulder symptoms began within forty-
eight hours of vaccination because “petitioner did not seek care for her alleged injury
until . . . almost four months after the vaccination.” Id. at 3.
On November 20, 2018, the undersigned ordered petitioner to file a detailed
affidavit and Motion for a Ruling on the Record regarding onset. See Scheduling Order
at 1 (ECF No. 24). Petitioner filed her Motion on January 14, 2019 without an affidavit.
(ECF No. 25). Respondent filed his response on March 5, 2019. (ECF No. 26). Thus,
petitioner’s Motion is now ripe for adjudication.
II. Relevant Factual History
On September 21, 2016, petitioner received a flu vaccination in her left arm. Ex.
9. Petitioner’s medical history does not appear to be contributory to her claim in this
case. See generally Ex. 7 at 34-35 (listing petitioner’s past medical history and “active
problems.”).
Approximately 4 months later, on January 18, 2017, petitioner first presented to
Nurse Practitioner (“NP”) Anne Musgrove at Memorial Southern Coast Family Medicine
with complaints of left shoulder pain. Ex. 3 at 4. According to the clinical record,
petitioner’s pain “began in September on the evening she received her flu vaccine at
work.” Id. It is noted that petitioner initially attempted to treat her shoulder with
nonsteroidal anti-inflammatory drugs (“NSAIDs”) and sought to alleviate pain through
the strategic placement of pillows during the night and limiting weight-bearing activities.
Id. Despite these measures, petitioner’s shoulder pain continued. Id. It was also noted
2

Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 3 of 6
that “abduction of the left arm is limited to approximately 85 [degrees] actively and 94
[degrees] passively. There is some weakness in her left hand, sometimes losing her
grip strength.” Id. The clinical notes reflect “constant 2/10 dull aching with episodes of
6/10 pain with abduction of L[eft] arm.” Id. NP Musgrove diagnosed petitioner with a
vaccine reaction and referred her for magnetic resonance imaging (“MRI”). Id. at 5.
On January 22, 2017, petitioner underwent an MRI of her left shoulder. Id. at 1-
2. The MRI report notes petitioner’s “[l]imited range of motion of the shoulder since the
fluid [sic] shot.” Id. at 1. The MRI revealed “some mild thickening of the joint capsule at
the axillary recess which can be seen with adhesive capsulitis.” Id. at 2.
On February 2, 2017, petitioner presented to Dr. Arthur D. Black, an orthopedist.
Ex. 6 at 1-2. Petitioner reported left shoulder pain “that started approximately 4 months
ago after receiving a flu shot in the same shoulder.” Id. at 1. Petitioner further reported
having had “some relief [of] some of the symptoms with activity modification and anti-
inflammatories however they have not completely resolved.” Id. Petitioner was
assessed with “left shoulder bursitis, slow to resolve,” and was given a cortisone
injection. Id. at 2.
Petitioner returned to Dr. Black on March 21, 2017 to follow-up on her left
shoulder pain. Id. at 3-4. The clinical notes indicate that while the previously
administered cortisone injection had initially provided pain relief, petitioner’s symptoms
were beginning to return. Id. at 3. Petitioner was assessed with having left shoulder
impingement symptoms and petitioner was prescribed physical therapy. Id. at 4.
On April 21, 2017, petition completed a Vaccine Adverse Event Reporting
System form (“VAERS Report”) indicating “left shoulder pain onset [illegible] injection.”
Ex. 1 at 2. The date of onset is listed as September 21, 2016. Id.
Petitioner participated in 13 sessions of occupational therapy from March 30,
2017 through June 20, 2017. Ex. 2 at 40-68. The outpatient evaluation note states that
petitioner “has a history of approximately 6 months of left shoulder pain.” Id. at 68.
In petitioner’s second affidavit, petitioner states that she began experiencing left
shoulder pain following her September 21, 2016 flu shot. Ex. 8 at ¶ 3. Petitioner
explains that, “[i]n the past with vaccination, I had often experienced some mild
soreness typically resolving within a few days.” Id. Petitioner explained that, unlike the
soreness she experienced following previous vaccinations, the pain that followed her
September 21, 2016 vaccination persisted. Id. Petitioner noted that as “a nurse
practitioner and busy mom I continued to just treat supportively. Once I began having
limited range of motion as well as continued pain, I knew there was something more
wrong.” Id.
III. Discussion
a. Applicable Legal Standard
3

Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 4 of 6
Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed
on the Vaccine Injury Table (“Table”). See Vaccine Injury Table: Qualifications and aids
to interpretation. 42 C.F.R. § 100.3(c)(10). Therefore, the undersigned’s findings are
informed by the Qualifications and Aids to Interpretation for SIRVA criteria used to
evaluate such claims. The criteria 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).
Id.; 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). The criteria at issue in this
case is whether petitioner’s pain occurred within the specified time-frame of 48 hours or
less after administration of her September 21, 2016 flu vaccination. The undersigned
finds that it does.
b. Evaluation of the Evidence
The parties dispute whether petitioner has satisfied her burden of proof as to the
second SIRVA criteria: “[pain occur[ring] within the specified time-frame.” To meet this
criterion, petitioner must show by preponderant evidence that her left shoulder pain
began within 48 hours of her September 21, 2016 flu vaccination. 42 U.S.C. § 300aa–
13(a)(1)(A); 42 C.F.R. § 100.3(c)(10). 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
September 21, 2016 flu vaccination.
It is undisputed that petitioner was not seen by a healthcare provider until
January 18, 2017, almost four months after her September 21, 2016 flu shot. However,
the medical records provide preponderant evidence demonstrating that the onset of her
shoulder pain began within 48 hours of the administration of the flu vaccine. On the first
occasion that petitioner sought treatment for her left shoulder injury, she reported that
her shoulder pain “began in September on the evening she received her flu vaccine.”
Ex. 7 at 10. Moreover, in recounting petitioner’s history of shoulder pain, the report
4

Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 5 of 6
documenting petitioner’s January 22, 2017 MRI indicates that she experienced limited
range of motion in her left shoulder since the “fluid [sic] shot.” Id. at 4. Consistent with
this timeline is petitioner’s February 2, 2017 report to her orthopedist that her shoulder
pain “started approximately 4 months ago after receiving a flu shot in the same
shoulder.” Ex. 6 at 1. Petitioner’s subsequent occupational therapy evaluation on
March 30, 2017 further corroborates petitioner’s claim that her shoulder pain began
within 48 hours of the flu vaccination: It is noted that petitioner “has a history of
approximately 6 months of left shoulder pain.” Ex. 2 at 68. Moreover, petitioner’s
VAERS Report indicates an onset date of September 21, 2016, the date of petitioner’s
vaccination.
The undersigned recognizes that some of the aforementioned medical records
are imprecise regarding onset (e.g., “approximately 4 months ago”); however, it would
be a mistake to overanalyze these notations in search of a precise onset date when
these notes were provided as generalizations. The reported timeframe reflected by the
record as a whole encompass the 48-hour post-vaccination period. Moreover, it is
significant that on January 18, 2017, the first time petitioner sought treatment for her
shoulder, she reported that her pain began “on the evening she received the flu
vaccine.” Ex. 7 at 10.
Additionally, the undersigned finds petitioner’s second affidavit explaining her
delay in seeking treatment to be reasonable and credible. See, e.g., Stevens v. Sec’y
of Health & Human Servs., 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 indicated that she had previously
experienced mild soreness after vaccinations that typically resolved within a few days.
Ex. 8 at 1. Petitioner also indicated that, as a nurse and busy mom, she initially sought
to treat the pain with ibuprofen and by applying ice. Id. at 2. Given that petitioner was
noted to have had “some relief [of] symptoms with activity modification and anti-
inflammatories,” (Ex. 6 at 1) petitioner’s decision not to seek immediate attention was
reasonable. Further, because petitioner is a nurse, and it is typical for many medical
professionals to self-treat, they often wait before seeking formal medical treatment. In
the undersigned’s experience, petitioner’s affidavits and medical records as a whole
reflect a pattern of treatment consistent with and similar to many other compensated
SIRVA claims.
Based on the record as a whole, the undersigned finds that there is preponderant
proof that the onset of petitioner’s left shoulder pain occurred within 48 hours of her
September 21, 2016 flu vaccination.
IV. Conclusion
The undersigned finds, based on the record as a whole, that the onset of
petitioner’s left shoulder pain was within forty-eight (48) hours of her September
21, 2016 influenza vaccination.
The parties are encouraged to consider an informal resolution of this claim.
Petitioner shall file a joint status report by no later than Monday, July 8, 2019,
5

Case 1:18-vv-00226-UNJ Document 36 Filed 10/10/19 Page 6 of 6
updating the court on the status of the parties’ progress informally resolving this
claim.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6

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DOCUMENT 3: USCOURTS-cofc-1_18-vv-00226-2
Date issued/filed: 2020-09-14
Pages: 19
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/14/2020) regarding 46 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00226-UNJ Document 52 Filed 09/14/20 Page 1 of 19
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0226V
UNPUBLISHED
KIMBERLY RAYBORN, Chief Special Master Corcoran
Petitioner, Filed: August 14, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Table Injury;
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On February 14, 2018, Kimberly Rayborn 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 left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on
September 21, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
For the reasons described below, I find that Petitioner is entitled to compensation
in this case, and award of damages in the amount $55,619.60, representing
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).

Case 1:18-vv-00226-UNJ Document 52 Filed 09/14/20 Page 2 of 19
compensation in the amount of $55,000.00 for actual pain and suffering, and
$619.60 for past unreimbursable expenses.
I. Relevant Procedural History
On February 14, 2018, in addition to the petition, Petitioner filed medical records
as Exhibits 1-3 and an affidavit as Exhibit 4. (ECF No. 1). On February 20, 2018, Petitioner
filed the vaccine administration record as Exhibit 5 and, on February 26, 2018, filed a
statement of completion. (ECF Nos. 6, 8). Immediately following the March 20, 2018 initial
status conference, Petitioner filed additional medical records as Exhibits 6 and 7. (ECF
No. 10). On April 10, 2018, Petitioner filed an amended petition in which the date of
vaccination was corrected. (ECF No. 11). Petitioner’s second affidavit and a more detailed
record of vaccine administration were filed on April 13 and April 23, 2018 as Exhibits 8
and 9. (ECF Nos. 13, 14).
On November 14, 2018, Respondent filed the Rule 4(c) Report asserting that
Petitioner had not demonstrated entitlement to compensation. Respondent’s Report (ECF
No. 23). Specifically, Respondent argued that the record is insufficient to substantiate that
the onset of Petitioner’s left shoulder symptoms began within forty-eight hours of
vaccination because “petitioner did not seek care for her alleged injury until . . . almost
four months after the vaccination.” Id. at 3.
On November 20, 2018, the undersigned ordered Petitioner to file a detailed
affidavit and Motion for a Ruling on the Record regarding onset. See Scheduling Order at
1 (ECF No. 24). Petitioner filed her Motion on January 14, 2019 without an affidavit. (ECF
No. 25). Respondent filed his response on March 5, 2019. (ECF No. 26).
On June 7, 2019, then Chief Special Master Dorsey issued findings of fact and
conclusions of law finding that the record established that the onset of Petitioner’s left
shoulder pain was within 48 hours of her September 21, 2016 flu vaccination (ECF No.
27). The parties then attempted informal settlement. Id.
On October 16, 2019, Petitioner filed a joint status report stating that the parties’
negotiations had reached an impasse (ECF No. 37). Petitioner stated that the parties
were amenable to a decision on the written record and proposed a briefing schedule. On
December 27, 2019, Petitioner filed a damages brief (ECF No. 41). Respondent filed his
damages brief on February 11, 2020 (ECF No. 45).
2

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II. Relevant Factual History
A. Medical Records
On September 21, 2016, Petitioner received a flu vaccination in her left arm at
Memorial Hospital in Gulfport, Mississippi. Ex. 9 at 1; Ex. 4 at ¶ 2. Petitioner’s medical
history does not appear to be contributory to her claim in this case. See generally Ex. 7
at 34-35 (listing Petitioner’s past medical history and “active problems”).
Approximately four months later, on January 18, 2017, Petitioner first presented to
Nurse Practitioner (“NP”) Anne Musgrove at Memorial Southern Coast Family Medicine
with complaints of left shoulder pain. Ex. 3 at 4. According to the clinical record,
Petitioner’s pain “began in September on the evening she received her flu vaccine at
work.” Id. She reported that it became very uncomfortable to sleep on her left side. Id.
The record indicates that Petitioner initially attempted to treat her shoulder with
nonsteroidal anti-inflammatory drugs (“NSAIDs”) and sought to alleviate pain through the
strategic placement of pillows during the night and limiting weight-bearing activities. Id.
Despite these measures, Petitioner’s shoulder pain continued. Id.
NP Musgrove examined Petitioner’s shoulder and found that “abduction of the left
arm is limited to approximately 85 [degrees] actively and 94 [degrees] passively. There is
some weakness in her left hand, sometimes losing her grip strength.” Id. The clinical notes
reflect “constant 2/10 dull aching with episodes of 6/10 pain with abduction of L[eft] arm.”
Id. Petitioner also exhibited mild bursal tenderness. Id. at 5. NP Musgrove diagnosed
Petitioner with left shoulder pain and a vaccine reaction and referred her for magnetic
resonance imaging (“MRI”). Id. at 5.
On January 22, 2017, Petitioner underwent an MRI of her left shoulder. Ex. 3 at 1-
2. The MRI report notes Petitioner’s “[l]imited range of motion of the shoulder since the
fluid [sic] shot.” Id. at 1. The findings indicated that the “supraspinatus tendon
demonstrates some mild internal signal alteration suggesting a mild degree of tendinosis.”
Id. The impression indicated the history of a flu shot injection and stated that the
interpreting physician did “not see any evidence of an inflammatory process of the soft
tissues of the left shoulder region. There is no evidence of abscess or septic arthritis or
osteomyelitis. I do not see evidence of a rotator cuff tear or MRI evidence of impingement.
There is noted to be some mild thickening of the joint capsule at the axillary recess which
can be seen with adhesive capsulitis.” Id.
On February 2, 2017, Petitioner presented to Dr. Arthur D. Black, an orthopedist.
Ex. 6 at 1-2. Petitioner reported left shoulder pain “that started approximately 4 months
ago after receiving a flu shot in the same shoulder.” Id. at 1. She reported that initially she
3

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had “significant pain with some decrease in her range of motion with reported tightness
and exacerbation of pain with certain movements.” Id. Petitioner further reported having
had “some relief [of] some of the symptoms with activity modification and anti-
inflammatories however they have not completely resolved.” Id. She denied any
numbness or paresthesias. Id. On examination, she was found to have full active and
passive range of motion in her left shoulder. Id. Mild subacromial tenderness was noted.
Id. She underwent left shoulder x-rays, which were normal. Ex. 3 at 3. Petitioner was
assessed with “left shoulder bursitis, slow to resolve,” and was given a cortisone injection.
Ex. 6 at 2.
Petitioner returned to Dr. Black on March 21, 2017 to follow-up on her left shoulder
pain. Ex. 6 at 3-4. She reported improvement in her symptoms, noting that the cortisone
injection provided good pain relief for approximately two weeks, but the pain was starting
to return. Id. She was able to perform all of her daily activities, but was still having sleep
disturbance due to pain. Id. On examination, her left shoulder had full range of motion
with a mild arc of pain, tenderness over the lateral aspect of the shoulder, mild tenderness
over the acromial clavicular joint, and mild weakness restricted by pain. Id. Petitioner was
assessed with having left shoulder impingement symptoms and Petitioner was prescribed
physical therapy. Id. at 4.
On March 30, 2017, Petitioner underwent an occupational therapy (“OT”)
evaluation. Ex. 2 at 68-70. The record noted that she was a nurse practitioner with “a
history of approximately 5 months of left shoulder pain which has kept her from performing
recreational activities she enjoys such as tennis and water skiing. Her pain makes it
difficult for her to sleep at night, and she has pain while at work.” Id. She was found to
have positive impingement signs with the Hawkins, Neer, and positive cross adduction
tests. Id. at 69. In addition, she exhibited tenderness to palpation. Id.
Petitioner participated in 13 additional OT sessions from April 4, 2017 through May
18, 2017. Ex. 2 at 41-68. At her April 6, 2017 session, she was noted to have performed
“all therapeutic exercises with good form and without discomfort” but also to demonstrate
“tenderness with passive stretches.” Id. at 65. The record of her April 11, 2017 session
documented that she “complain[ed] of pain with activities behind her back, activities
above her shoulders. Patient has been unable to engage in sports that [she] enjoys such
as tennis and water skiing.” Id. at 63.
The record of Petitioner’s April 18, 2017 OT session states, “[p]t’s pain is
decreasing but she has a long work week m-f” and “[p]t states her shoulder already feels
better.” Ex. 2 at 59. At her April 27, 2017 visit it was noted that “[p]t had very tough work
week and she is complaining of increased left shoulder pain.” Id. at 54.
4

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On April 21, 2017, Petitioner completed a Vaccine Adverse Event Reporting
System form (“VAERS Report”) indicating “left shoulder pain onset [illegible] injection.”
Ex. 1 at 2. The date of onset is listed as September 21, 2016. Id.
At Petitioner’s final OT session on May 18, 2017, she was assessed as having
deficits in activities of daily living, coordination, endurance, pain, proprioception, range of
motion, and strength. Ex. 2 at 43. The record noted that he physician had discharged her
from therapy and she was instructed on a home exercise and strengthening program. Id.
Petitioner was thereafter formally discharged from OT on June 20, 2017. Ex. 2 at 40.
Although it appears that she was not seen on this date, the record documents
“dramatically lessened” pain of 1-2 with activity. Id. She was noted to demonstrate
“excellent range of motion in all planes and 5 of 5 strength of her left shoulder.” Id. She
was independent with all ADLs and work care tasks. Id.
B. Affidavit Evidence
Petitioner’s second affidavit states that she began experiencing left shoulder pain
following her September 21, 2016 flu shot. Ex. 8 at ¶ 3. Petitioner explained that, “[i]n the
past with vaccination, I had often experienced some mild soreness typically resolving
within a few days.” Id. This time, however, the pain that followed her September 21, 2016
vaccination persisted. Id. Petitioner noted that as “a nurse practitioner and busy mom I
continued to just treat supportively. Once I began having limited range of motion as well
as continued pain, I knew there was something more wrong.” Id.
Petitioner averred that she experienced pain in her shoulder almost daily for the
prior 18 months. Ex. 8 at ¶ 7. As of the date of the affidavit, April 6, 2018, she averred
that her pain level ranged between 1 and 3 depending on her daily activities. Id. She
estimated that she missed approximately 16 days of work as a result of her injury. Id. at
¶ 8. After vaccination, she could not perform many non-work activities that she enjoyed
before vaccination, such as water skiing, playing sports with her children, gardening,
housecleaning, picking up her children or niece/nephews, driving long distances, and
dressing and styling her hair. Id. at ¶ 10. She stated that day to day activities were “very
difficult to accomplish with the pain and limited range of motion.” Id.
Petitioner stated that she had largely returned to her previous state of health as of
April 6, 2018. Ex. 8 at ¶ 11. She noted that she still experienced left shoulder discomfort
on a daily basis, although she stated that if she maintains her home exercise program,
the discomfort is manageable. Id. As of that date, she still experienced night time
discomfort. Id. She believed she had achieved maximum improvement without pursuing
surgery, which she did not want. Id.
5

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III. The Parties’ Arguments
A. Petitioner’s Position
Petitioner requests that I award damages in the amount of $85,619.60, comprising
$85,000.00 for actual pain and suffering and $619.60 for out of pocket medical expenses.
Petitioner’s Brief (“Br.”) at 8. Petitioner asserts that her left shoulder injuries are
comparable to the injuries in Attig, Kim, and Marino.3 Id. Petitioner emphasizes that she
underwent a steroid injection, 13 occupational therapy sessions, an MRI, and visits to her
primary care physician and an orthopedist. Id.
Petitioner compares the delay in seeking treatment in this case to that of the
Petitioner in Kim. Br. at 8. As in Kim, Petitioner’s MRI demonstrated a milder SIRVA, but
the orthopedist here considered her pain severe enough to administer a steroid injection,
which was not done in Kim. Id. at 8-9. Petitioner was also treated for nine months post-
vaccination, at which point she reported a pain level of 1-2 with activity. Id. at 9. She
compares this to the Petitioner in Knauss, who she states was 94% improved five months
following vaccination. Id. And Petitioner experienced the loss of certain life pleasures
similar to that in Marino. Id.
B. Respondent’s Position
Respondent acknowledges the June 7, 2019 fact ruling concerning onset as law
of the case, while reserving his right to appeal that ruling. Respondent’s Brief (“Opp.”)
filed Feb. 11, 2020, at 1 n.1 (ECF No. 45). He asserts that a ruling finding entitlement to
compensation based on a Table presumption of causation “cannot be sustained if the
Ruling is vacated or overturned on appeal.” Id. However, he raises no challenge to a
ruling on entitlement in Petitioner’s favor given the prior onset ruling. Respondent thus
appears to recognize that an entitlement ruling in Petitioner’s favor is warranted, using
his brief to address the amount of damages rather than any entitlement issue. Id. To that
end, Respondent advocates for a damages award in the amount of $30,619.60,
consisting of $30,000.00 for actual pain and suffering, plus and $619.60 for past
unreimbursed expenses (the same amount requested by Petitioner). Opp. at 1-2.
3 Attig v. Sec’y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19,
2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable medical expenses);
Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 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).
6

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1. Continuum Methodology
With respect to damages, Respondent advocates for an award based on a
continuum, where comparatively less is awarded to less severely injured Petitioners. Opp.
at 4. Respondent acknowledges that this approach was called into question in Graves v.
Sec’y of Health & Human Servs., 109 Fed. Cl. 579, 590 (2013). Nevertheless,
Respondent states:
Respondent agrees with Graves to the extent it calls for an individualized
assessment of damages base on the specific facts of each case. However,
to the extent Graves is interpreted to endorse a methodology that would
result in the vast majority of Vaccine Act claimants recovering the statutory
maximum amount for pain and suffering, respondent disagrees, because
that is clearly inconsistent with the legislative history. Instead, respondent
submits that the approach utilized by the Office of Special Masters for over
two decades is consistent with Section 300aa-15(a)(4) and in keeping with
how Congress intended the Vaccine Act to operate.
Opp. at 5.
2. Damages in this Case
Respondent argues that “petitioner’s symptomatology is objectively demonstrated
until her discharge from occupational therapy on June 20, 2017,” reflecting a nine-month
duration. Opp. at 11. Respondent asserts that “petitioner’s symptomatology was not
significant enough to prompt medical attention until approximately four months after
vaccination.” Id. at 12. Respondent characterizes the findings at that time as “objectively
mild.” Id. Respondent acknowledges that at a follow up visit approximately six weeks later,
Petitioner reported that the relief obtained from a cortisone injection was fading. Id.
Respondent asserts that overall, the intervention required for Petitioner’s injury in this
case was “minimal, consisting of two orthopedics visits, one cortisone injection, and
thirteen therapy sessions.” Id.
Respondent attaches to his brief a chart, Appendix A, which Respondent asserts
includes the results of a Westlaw search of the Jury Verdicts and Settlements database
for awards in cases involving shoulder impingement and shoulder bursitis. Opp. at 13.
Respondent asserts that the average of the 55 awards listed in Appendix A is $33,089.33
and that 75% of the awards are for $30,000.00 or less. Id. Respondent asserts that all
awards above $30,000.00 involve concurrent knee or back injuries. Id. Thus, Respondent
argues, the pain and suffering award in this case should be limited to $30,000.00. Id.
7

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IV. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
Petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No.
90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
In addition to requirements concerning the vaccination received, the duration and
severity of Petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
§ 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). The
criteria establishing a SIRVA under the accompanying QAI are as follows:
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
8

Case 1:18-vv-00226-UNJ Document 52 Filed 09/14/20 Page 9 of 19
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
B. Factual Findings Regarding QAI Criteria for Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Prior Condition
The first QAI requirement for a Table SIRVA is lack of a history revealing problems
associated with the affected shoulder which were experienced prior to vaccination and
would explain the symptoms experienced after vaccination. 42 C.F.R. § 100.3(c)(10)(i).
Respondent has not contested that Petitioner meets this criterion, and I find that she has
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demonstrated a lack of history of pain, inflammation, or dysfunction of her left shoulder
that would explain her symptoms. See Ex. 7 at 34-35.
2. Onset of Pain
Pursuant to Section 13(b)(2) of the Vaccine Act, a special master may find that the
first symptom or manifestation of onset occurred within the time period set forth in the
Table even if the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.
The issue of onset has already been decided in Petitioner’s favor in the June 7,
2019 fact ruling (ECF No. 27). Although Respondent states that he reserves the right to
appeal the onset ruling, he has asserted no basis for my reconsideration of it, and I
therefore adopt it in this Decision.
3. Scope of Pain and Limited ROM
Respondent has not contested that Petitioner meets this criterion. In addition, the
medical records document symptoms only in Petitioner’s left shoulder following her
vaccine. Ex. 3 at 4-5; Ex. 6 at 1-4; Ex. 2 at 40-68. I thus find that Petitioner has
demonstrated by a preponderance of the evidence that her pain and reduced range of
motion were limited to the shoulder in which the intramuscular vaccine was administered.
4. Other Condition or Abnormality
The last QAI criteria for a Table SIRVA states that there must be no other condition
or abnormality which would explain a petitioner’s current symptoms. 42 C.F.R.
§ 100.3(c)(10)(iv). There is no evidence that Petitioner suffered any other condition which
would explain her symptoms of pain and limited ROM in her left shoulder. Nor has
Respondent identified any such other condition or abnormality. Accordingly, I find the
record contains preponderant evidence establishing that there is no other condition or
abnormality which would explain the symptoms of Petitioner’s left shoulder injury.
C. Other Conditions for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements. Petitioner
meets the requirements for a Table SIRVA injury, as discussed above. In addition, the
record supports the conclusion that Petitioner suffered the residual effects of her shoulder
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injury for more than six months. See Section 11(c)(1)(D)(i) (statutory six-month
requirement); Ex. 6 at 34 (March 21, 2017 appointment with Dr. Black documenting the
return of pain, assessing Petitioner with left shoulder impingement symptoms, resulting
in a referral to physical therapy); Ex. 2 at 41-68 (records of 14 occupational therapy
sessions between March 30, 2017 and May 18, 2017). I therefore find that Petitioner is
entitled to compensation in this case.
V. Appropriate Amount of Damages
A. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a 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.” Section 15(a)(1)(B). The Petitioner bears the burden of
proof with respect to each element of compensation requested. Brewer v. Sec’y of Health
& Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar.
18, 1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
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. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 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, I may rely on my own experience (along with my
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predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of
Health & Human Servs., 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).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merrow rejected a 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 Merrow maintained that do so resulted in “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 Merrow 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. Under this
alternative approach, the statutory cap merely cuts off higher pain and suffering awards
– it does not shrink the magnitude of all possible awards as falling within a spectrum that
ends at the cap.
B. Prior SIRVA Compensation
1. Overview of SIRVA Case Damages Outcomes in Settled Cases6
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2020, 1,405 SIRVA cases have informally resolved7 since SPU’s inception
in July of 2014. Of those cases, 817 resolved via the government’s proffer on award of
compensation, following a prior ruling that Petitioner is entitled to compensation.8
5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
6 I used the term “settled” broadly, to include both cases that the Department of Justice resolves via litigative
risk discussions and those it proffers (meaning the Government represents that the damages sum
accurately reflects its liability under the Act in the relevant case). Prior decisions awarding damages,
including those resolved by settlement or proffer, are made public and can be searched on the U.S. Court
of Federal Claims website by keyword and/or by special master. On the court’s main page, click on
“Opinions/Orders” to access the database. All figures included in this order are derived from a review of the
decisions awarding damages within the SPU. All decisions reviewed are, or will be, available publicly. All
figures and calculations cited are approximate.
7 Additionally, 41 claims alleging SIRVA have been dismissed within the SPU.
8 Additionally, there have been 21 prior cases in which Petitioner was found to be entitled to compensation,
but where damages were resolved via a stipulated agreement by the parties rather than government proffer.
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Additionally, 567 SPU SIRVA cases resolved via stipulated agreement of the parties
without a prior ruling on entitlement.
Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $75,044.86 to $122,038.99.9 The median award is $95,000.00.
Formerly, these awards were presented by the parties as a total agreed-upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Since
late 2017, the government’s proffer has included subtotals for each type of compensation
awarded.
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $92,500.00,10 with a median award of $70,000.00. In most instances,
the parties continue to present the stipulated award as a total agreed upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Unlike
the proffered awards, which purportedly represent full compensation for all of Petitioner’s
damages, stipulated awards also typically represent some degree of litigative risk
negotiated by the parties.
2. Specific Prior Reasoned Decisions Addressing SIRVA Damages
Additionally, since the inception of SPU in July 2014, there have been a number
of reasoned decisions awarding damages in SPU SIRVA cases – meaning where the
parties were unable to informally resolve damages, so the dispute was adjudicated and
ruled upon by a special master. Typically, the primary point of dispute has been the
appropriate amount of compensation for pain and suffering.
i. Below-median awards limited to past pain and suffering
In seventeen prior SPU cases, the Petitioner was awarded compensation for only
actual or past pain and suffering in amounts below the median proffer figure discussed
above, and in a range from $60,000.00 to $90,000.00.11 These cases have all included
9 Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 21 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $115,772.83. For these awards, the first and third quartiles range from $90,000.00
to $160,502.39.
10 Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
11 These cases are: Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl.
Spec. Mstr. Nov. 6, 2019) (awarding $65,000.00 for actual pain and suffering and $2,080.14 for actual
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injuries with a “good” prognosis, although some of the Petitioners asserted residual pain.
All of the Petitioners in such cases displayed only mild to moderate limitations in range of
motion, and MRI imaging likewise showed only evidence of mild to moderate pathologies
such as tendinosis, bursitis, or edema. The duration of injury ranged from six to 29
months, with such petitioners averaging approximately fourteen months of pain.
Significant pain was reported in these cases for up to eight months. However, in
approximately half of the cases, these petitioners subjectively rated their pain as six or
below on a ten-point scale. Petitioners who reported pain in the upper end of the ten-point
scale generally suffered pain at this level for three months or less. Slightly less than one-
half of these individuals had been administered one to two cortisone injections. Most of
these petitioners pursued physical therapy for two months or less, and none had any
surgery. The petitioners in Schandel, Garrett, and Weber attended PT from almost four
to five months, but most of the PT in Weber focused on conditions unrelated to the
petitioner’s SIRVA. Several of these cases (Goring, Lucarelli, Kent, Knauss, Marino,
unreimbursable expenses); Goring v. Sec’y of Health & Human Servs., No. 16-1458V, 2019 WL 6049009
(Fed. Cl. Spec. Mstr. Aug. 23, 2019) (awarding $75,000.00 for actual pain and suffering and $200.00 for
actual unreimbursable expenses); Lucarelli v. Sec’y of Health & Human Servs., No. 16-1721V, 2019 WL
5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (awarding $80,000.00 for actual pain and suffering and
$380.54 for actual unreimbursable expenses); Kent v. Sec’y of Health & Human Servs., No. 17-0073V,
2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019) (awarding $80,000.00 for actual pain and suffering
and $2,564.78 to satisfy Petitioner’s Medicaid lien); Capasso v. Sec’y Health & Human Servs., No.17-
0014V, 2019 WL 5290524 (Fed. Cl. Spec. Mstr. July 10, 2019) (awarding $75,000.00 for actual pain and
suffering and $190.00 for actual unreimbursable expenses); Schandel v. Sec’y of Health & Human Servs.,
No. 16-0225V, 2019 WL 5260368 (Fed. Cl. Spec. Mstr. July 8, 2019) (awarding $85,000.00 for actual pain
and suffering and $920.03 for actual unreimbursable expenses); Bruegging v. Sec’y of Health & Human
Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for
actual pain and suffering and $1,163.89 for actual unreimbursable expenses); Pruett v. Sec’y of Health &
Human Servs., No. 17-0561V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awarding $75,000.00
for actual pain and suffering and $944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health
& Human Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding
$75,000.00 for actual pain and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-0399V, 2019
WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and
$1,027.83 for actual unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs., No. 18-0490V,
2019 WL 2462953 (Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering);
Attig v. Sec’y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19,
2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct.
18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical expenses);
Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable medical expenses);
Knauss v. Sec’y of Health & Human Servs., 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);
Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 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);
Desrosiers v. Sec’y of Health & Human Servs., No. 16-0224V, 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).
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Kim, and Dirksen) included a delay in seeking treatment. These delays ranged from about
42 days in Kim to over six months in Marino.
ii. Above-median awards limited to past pain and suffering
In eight prior SPU cases, the petitioner was awarded compensation limited to past
pain and suffering but above the median proffered SIRVA award, in ranges from
$110,000.00 to $160,000.00.12 Like those in the preceding group, the relevant petitioner’s
prognosis was “good,” but these higher award cases were characterized either by a
longer duration of injury or by the need for surgical repair. Thus, seven out of eight
underwent some form of shoulder surgery, while one (Cooper) experienced two full years
of pain and suffering, eight months of which were considered significant, and also
required extended conservative treatment. On the whole, MRI imaging in these cases
also showed more significant findings, with seven of eight showing possible evidence of
partial tearing.13 No MRI study was performed in the Cooper case.
During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale, and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
12 These cases are: Nute v. Sec’y of Health & Human Servs., No. 18-0140V, 2019 WL 6125008 (Fed. Cl.
Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for pain and suffering); Kelley v. Sec’y of Health & Human
Servs., No. 17-2054V, 2019 WL 5555648 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (awarding $120,000.00 for
pain and suffering and $4,289.05 in unreimbursable medical expenses); Wallace v. Sec’y of Health &
Human Servs., No. 16-1472V, 2019 WL 4458393 (Fed. Cl. Spec. Mstr. June 27, 2019) (awarding
$125,000.00 for pain and suffering and $1,219.47 in unreimbursable medical expenses); Reed v. Sec’y of
Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding
$160,000.00 for pain and suffering and $4,931.06 in unreimbursable medical expenses); Knudson v. Sec’y
of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 for pain and suffering and $305.07 in unreimbursable medical expenses); Cooper v. Sec’y of
Health & Human Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 for pain and suffering and $3,642.33 in unreimbursable medical expenses); Dobbins v. Sec’y
of Health & Human Servs., No. 16-0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding
$125,000.00 for pain and suffering and $3,143.80 in unreimbursable medical expenses); Collado v. Sec’y
of Health & Human Servs., No. 17-0225V, 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).
13 In Reed, MRI showed edema in the infraspinatus tendon of the right shoulder with a possible tendon tear
and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness partial
tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial thickness
tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and moderate sized
joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a partial bursal
surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild longitudinally
oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and infraspinatus
tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the posterior-superior-
lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site, and minimal
subacromial-subdeltoid bursitis.
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more immediately (e.g., within five to 45 days from onset). Duration of physical therapy
ranged from one to 28 months and six out of the eight had cortisone injections.
iii. Awards including compensation for both past and future pain and
suffering
In only three prior SPU SIRVA cases has a petitioner been awarded compensation
for both past and future pain and suffering.14 In two of those cases (Hooper and Binette),
petitioners experienced moderate to severe limitations in range of motion and moderate
to severe pain. The Hooper petitioner underwent surgery, while in Binette petitioner was
deemed not a candidate for surgery following an arthrogram. Despite significant physical
therapy (and surgery in Hooper), medical opinions indicated that the relevant petitioner’s
disability would be permanent. In these two cases, petitioners were awarded above-
median awards for actual pain and suffering as well as awards for projected pain and
suffering for the duration of their life expectancies. In the third case (Dhanoa), petitioner’s
injury was less severe than in Hooper or Binette; however, petitioner had been actively
treating just prior to the case becoming ripe for decision and her medical records reflected
that she was still symptomatic despite a good prognosis. These petitioners were awarded
an amount below-median for actual pain and suffering, but, in light of the facts and
circumstances of the case, also awarded projected pain and suffering.
C. Appropriate Compensation in this SIRVA Case
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the duration and severity of her
injury.
1. Duration
The medical records show that Petitioner suffered left shoulder pain and limited
range of motion from September 2016 through at least June 2017, or for nine months.
During this time, she self-treated with NSAIDs, consulted with her primary care provider
14 These cases are: Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed.
Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for projected
pain and suffering, and $7,101.98 for past unreimbursable medical expenses); Hooper v. Sec’y of Health
& Human Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years for projected
pain and suffering, $37,921.48 for lost wages).
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and an orthopedist, received a cortisone injection, and underwent 14 OT sessions.
2. Severity
Petitioner is a health care professional and opted to self-treat her injury for
approximately four months. When she did seek professional treatment, she reported pain
that made it uncomfortable to sleep on her left side. She reported that she self-treated
with NSAIDs, strategic placement of pillows at night, and limiting her activities. These
measures were sufficient to prevent Petitioner from seeking medical care initially. She
averred that when she began having limited range of motion as well as pain, she knew
something was wrong and that is when she sought treatment. Ex. 8 at ¶ 3.
When she initially sought treatment on January 18, 2017, she reported constant
pain levels of 2/10, with episodes of 6/10 pain with abduction of her left arm. Ex. 3 at 4.
Abduction of her left arm was limited to approximately 85 degrees actively and 94 degrees
passively.15 Id. Petitioner’s MRI showed evidence of mild tendinosis, but no evidence of
a rotator cuff tear or impingement. Ex. 3 at 1-2. There were signs consistent with adhesive
capsulitis. Id.
At Petitioner’s first orthopedic appointment on February 2, 2017, the record reflects
that she was found to have full active and passive range of motion in her left shoulder.
Ex. 6 at 1. This is difficult to reconcile with the rather serious restrictions in range of motion
in abduction documented on examination by her primary care provider two weeks earlier.
Nevertheless, during the February 2, 2017 orthopedic visit, a cortisone injection was
administered. Id. at 1-2. Thus, Petitioner was experiencing severe enough symptoms at
this point to require treatment. While she received some relief from the cortisone injection,
it faded relatively quickly and she then underwent 14 sessions of OT.
Overall, the record reflects that Petitioner exhibited mild to moderate symptoms for
approximately nine months following vaccination.
3. Comparison to Other Awards
Petitioner compares her pain and suffering to that of the Petitioners in Attig v. Sec’y
of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb.
19, 2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable
medical expenses), Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL
3991022 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering
15 Normal shoulder abduction for adults ranges from 170 to 180 degrees. Cynthia C. Norkin and D. Joyce
White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 80, 84 (F. A. Davis Co., 5th ed. 2016).
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and $520.00 in unreimbursable medical expenses), and Marino v. Sec’y of Health &
Human Servs., No. 16-0622V, 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).
However, I consider all three of these cases to have involved greater severity
and/or duration than this case. At best, this case is similar to Marino, in that both
Petitioners did not seek care for several months (underscoring the more mild impact of
symptoms). Moreover, in Marino there was evidence showing that Petitioner’s symptoms
continued for over two and a half years after vaccination, significantly longer than in this
case. Marino at *10. Thus, even Marino presents a somewhat high comparable.
Kim and Attig, by contrast, are far less persuasive comparable cases. In Kim, the
Petitioner first sought treatment 42 days after vaccination – a third less time than
Petitioner’s first doctor’s visit 119 days post-vaccination, thus further suggesting that
Petitioner’s pain was manageable. The Attig petitioner sought care even sooner (12 days
post-vaccination), and also suffered an injury that was clearly more severe and of longer
duration.
I find that the case most similar to this one is Knauss v. Sec’y of Health & Human
Servs., 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). In
Knauss, the petitioner did not seek treatment until 84 days after vaccination, which is
somewhat sooner than Petitioner in this case, but comparable. The Knauss petitioner also
suffered a relatively mild injury, and of a somewhat longer duration (approximately 12
months). Both Petitioners underwent one cortisone injection. The Petitioner in this case
attended 14 OT sessions, while the Petitioner in Knauss attended 24 physical therapy
sessions. Overall, I find these cases comparable, with Knauss suffering a slightly worse
injury for a longer period of time.
VI. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $55,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.16 I also find that Petitioner
is entitled to $619.60 in actual unreimbursable expenses.
16 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
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Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $55,619.60 in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.17
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
17 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.
19