VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00267
Package ID: USCOURTS-cofc-1_18-vv-00267
Petitioner: Maria Werning
Filed: 2018-02-21
Decided: 2021-05-19
Vaccine: pneumococcal conjugate 13-Valent
Vaccination date: 2017-06-23
Condition: shoulder injury related to vaccine administration (SIRVA), including a complete tear of the biceps tendon, a large SLAP tear, partial-thickness tear of the anterolateral supraspinatus, impingement, spurring of the acromioclavicular joint, arthrosis of the acromioclavicular joint and inflammation
Outcome: compensated
Award amount USD: 202996

AI-assisted case summary:
Maria Werning, a 65-year-old woman, filed a petition for compensation under the National Vaccine Injury Compensation Program on February 21, 2018. She alleged that a pneumococcal conjugate 13-Valent (Prevnar 13) vaccine administered on June 23, 2017, caused a shoulder injury related to vaccine administration (SIRVA). Her alleged injuries included a complete tear of the biceps tendon, a large SLAP tear, partial-thickness tear of the anterolateral supraspinatus, impingement, spurring of the acromioclavicular joint, arthrosis of the acromioclavicular joint, and inflammation. The case was handled by Chief Special Master Brian H. Corcoran. The respondent was the Secretary of Health and Human Services, represented by Kimberly Shubert Davey of the U.S. Department of Justice. Petitioner was represented by Jimmy A. Zgheib of Zgheib Sayad, P.C.

Ms. Werning received the Prevnar 13 vaccine in her right deltoid on June 23, 2017. She reported immediate, significant pain at the injection site, which worsened over the following days and weeks, radiating down her arm and causing difficulty with daily activities. She initially hoped the pain would resolve on its own. Approximately three and a half weeks later, on July 17, 2017, she contacted her physician's office about the issues, but did not receive a callback. On August 28, 2017, she again contacted her physician, reporting persistent pain and requesting an appointment. On September 8, 2017, her primary care physician, Dr. Lacy Anderson, noted severe right arm pain since the vaccination, tenderness, and pain with movement, assessing it as an "injection reaction." Ms. Werning was referred to an orthopedic specialist, Dr. Vytautas Ringus, who examined her right shoulder on September 27, 2017. An MRI on October 4, 2017, revealed a high-grade undersurface partial-thickness tear of the anterolateral supraspinatus, a probable complete retracted tear of the biceps tendon, a probable large SLAP tear, inflammation, spurring, and arthrosis of the acromioclavicular joint, suggesting impingement. Dr. Ringus recommended physical therapy. Ms. Werning underwent physical therapy from November 10 to December 8, 2017, reporting improvement but also increasing clicking and popping. She returned to Dr. Ringus on December 28, 2017, reporting improved, tolerable pain. On January 24, 2018, she presented with continued pain, swelling, reduced range of motion, and a diagnosis including a complete tear of the right rotator cuff, arthritis, impingement, and biceps tendon rupture. She underwent surgery on March 13, 2018, for arthroscopic debridement, rotator cuff repair, subacromial decompression, and distal clavicle excision. Post-operative recovery initially showed improvement, and by June 13, 2018, her pain was "essentially resolved." However, over a year later, in July 2019, her pain returned and progressed. She underwent another MRI, attended more physical therapy, and experienced a "burning sensation that travels down the arm." A second surgery was recommended and performed on January 12, 2021, for a right shoulder arthroscopy with extensive debridement. As of February 22, 2021, she still reported shooting pain, pain with raising her arm, and objective deficits.

In a ruling dated July 27, 2020, Chief Special Master Corcoran found Ms. Werning entitled to compensation, determining that her injury met the criteria for a Shoulder Injury Related to Vaccine Administration (SIRVA) listed on the Vaccine Injury Table. The respondent had argued that Ms. Werning did not demonstrate pain onset within 48 hours of vaccination and that her symptoms were not limited to the shoulder. However, the Special Master found that her self-reporting of pain "since vaccination" and the contemporaneous medical records supported an onset within 48 hours, and that while pain radiated, the diagnosed injury and treatment were focused on the right shoulder. Degenerative tears found on MRI were deemed not to disqualify her claim, as they are common in her age group and her primary care physician identified the vaccine as the cause. The Special Master concluded that Ms. Werning satisfied all requirements for a Table SIRVA, including no prior history of shoulder issues, pain onset within 48 hours, pain limited to the vaccinated shoulder, no other condition explaining the symptoms, and residual effects lasting more than six months.

In a subsequent decision dated May 19, 2021, Chief Special Master Corcoran awarded Ms. Werning a total of $202,996.30. This award comprised $195,000.00 for past pain and suffering and $7,996.30 for past unreimbursable medical expenses. The Special Master noted that Ms. Werning had undergone two surgeries, 71 sessions of physical therapy, and three MRIs over nearly four years. The respondent had argued for a lower award, suggesting the later pain might be a "new" injury, but the Special Master found the continued symptoms and similar MRI findings linked the injury back to the vaccination. The Special Master also explained that gaps in treatment were attributable to Ms. Werning's teaching schedule and the COVID-19 pandemic. The request for future pain and suffering and future medical expenses was denied as too speculative, as there was no opinion that the injury was permanent and no supporting evidence for future costs.

Theory of causation field:
Maria Werning, age 65, received a Prevnar 13 vaccine on June 23, 2017. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) including a complete tear of the biceps tendon, SLAP tear, and rotator cuff tears. The Special Master found that Ms. Werning met the criteria for a Table SIRVA, presuming causation. Key findings included no prior history of shoulder issues, pain onset within 48 hours of vaccination (supported by contemporaneous medical records and self-reporting), pain and limited range of motion confined to the right shoulder, and no other condition explaining the symptoms. Degenerative changes on MRI were not considered disqualifying. The injury persisted for nearly four years, involving two surgeries and extensive physical therapy. The respondent argued against the 48-hour onset and the limitation of symptoms to the shoulder, but these arguments were rejected. The award was $195,000 for past pain and suffering and $7,996.30 for past unreimbursable medical expenses, totaling $202,996.30, as decided by Chief Special Master Brian H. Corcoran on May 19, 2021. Petitioner's counsel was Jimmy A. Zgheib; Respondent's counsel was Kimberly Shubert Davey.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00267-0
Date issued/filed: 2020-08-27
Pages: 15
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/27/2020) regarding 51 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00267-UNJ Document 56 Filed 08/27/20 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0267V
UNPUBLISHED
Filed: July 27, 2020
MARIA WERNING,
Chief Special Master Corcoran
Petitioner,
v. Special Processing Unit (SPU);
Entitlement; Ruling on the Record;
SECRETARY OF HEALTH Decision Without a Hearing;
AND HUMAN SERVICES, Causation-In-Fact; Pneumococcal
Conjugate 13-Valent (Prevnar)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 21, 2018, Maria Werning 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 “Program”), alleging that as a result of receiving a pneumococcal
conjugate 13-Valent (Prevnar 13) vaccination on June 23, 2017, she suffered from a
shoulder injury related to vaccine administration (“SIRVA”), including a complete tear of
the biceps tendon, a large SLAP tear, partial-thickness tear of the anterolateral
supraspinatus, impingement, spurring of the acromioclavicular joint, arthrosis of the
acromioclavicular joint and inflammation. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters. For the reasons discussed
herein, I find that Petitioner is entitled to compensation.
1 Because this unpublished ruling 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). I intend 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, 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:18-vv-00267-UNJ Document 56 Filed 08/27/20 Page 2 of 15
I. Procedural History
Ms. Werning filed her petition on February 21, 2018 (ECF No. 1). She filed the
relevant medical records and a Statement of Completion the next day. (ECF No. 7-9). By
November 2018, Respondent had reviewed all the documents in the case and filed a
status report stating that he was amenable to settlement discussions. (ECF No. 24).
Settlement discussions broke down in the late spring, however, and the parties requested
a status conference. (ECF No. 36). A deadline was set for the filing of Respondent’s Rule
4(c) to identify the areas of disagreement.
Respondent filed a Rule 4(c) report on August 26, 2019, in which he argues that
“petitioner has not demonstrated that she is entitled to compensation based on a Table
presumption of SIRVA” outlining each element of a SIRVA injury with which Respondent
takes issue. (ECF No. 39). The parties agreed to brief the case (including any disputed
factual issues) and requested a motion for ruling on the record. The parties have
completed briefing, and this case is now ripe for adjudication. After a review of the entire
record, I find that Petitioner is entitled to compensation.
II. Factual History
On June 23, 2017, Ms. Werning (age 65) received the Prevnar 13 vaccine in her
right deltoid at the office of her primary care provider, Dr. Lacy Anderson, located at
Integris Family Care in Norman, Oklahoma. Ex. 2 at 11-12, 84-85; Ex. 3 at ¶3; Ex. 4 at
¶3. There is no documented history of right shoulder injuries prior to this date.3 See Exs.
2 and 3, generally. In her affidavit, Ms. Werning describes the circumstances of the
vaccination, stating that she felt:
significant pain in the area where the needle was placed. The severity of
the pain was very unusual – unlike any other vaccine I had received in the
past. It felt as if the needle was placed too high into my shoulder and caused
to puncture something. Within minutes of receiving the vaccine, a lump
developed at the injection site, and the nurse advised me to rub the area.
That night, I had difficulty sleeping due to the pain. Over the next few days,
the condition of my right shoulder worsened, and the pain began travelling
down my entire arm.
Ex. 3 at ¶5. Ms. Werning explained that she had difficulty reaching behind her back and
for high objects, lifting, doing household chores and other activities of daily living that
required the use of her right shoulder. Id. at ¶6. She stated that she hoped that that the
pain would go away on its own and she rested and modified her activities to avoid
aggravating her condition. Id. at ¶7.
3 Ms. Werning’s medical history consisted of type 2 diabetes, hypertension, unspecified arthritis, right wrist
pain, obesity, obstructive sleep apnea, unspecified osteoarthritis, and vitamin D deficiency. See Ex. 2 at 3,
6, 9; Ex. 3 at 1-85.
2

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Approximately three and a half weeks later, on July 17, 2017, Ms. Werning called
her physician’s office to report that she was “having issues since vaccination” with her
right shoulder and requested a return call from a nurse. Ex. 2 at 86. She stated that she
never received a call back from her doctor’s office. Ex. 3 at ¶8.
On August 28, 2017, Ms. Werning contacted her physician’s office again and
reported that she was “still having pain in her arm and is concerned due to this not
resolving after two months.” Ex. 2 at 87; Ex. 3 at 2, ¶9. She called to “get the name of the
injection she was given so that she could research it.” Id. Ms. Werning was offered a
steroid pack but declined due to concerns about interactions with other medications she
takes for diabetes. Ms. Werning requested an appointment with her physician as soon as
possible. Id.
On September 8, 2017, Ms. Werning presented to her primary care physician
(“PCP”), Dr. Lacy Anderson, complaining of right arm pain. Ex. 2 at 16. The notes from
this visit state:
P[atien]t here for severe R[ight] arm pain since getting her Prevnar 13
vaccine nearly 3 months ago. It hurts to touch her arm and was swollen for
several weeks. She has a hard time with any movement of this arm. We
offered her a steroid pack but she wanted to see me and have me take a
peek at it.
Id. at 16. On examination, Ms. Werning was positive for myalgias of the right arm. Id. at
17. Dr. Anderson noted tenderness of the right arm with pain with both active and passive
movement of the right arm at the shoulder. Id. at 18. In the assessment, Dr. Anderson
noted: “[l]ooks like an injection reaction – p[atien]t reassured and we’ll try a Medrol pack
today.” Id. at 16.
On September 11, 2018, Ms. Werning contacted her Anderson’s office and
requested a referral to an orthopedic for her right arm pain. Ex. 2 at 88. The referral was
provided. Id.
On September 27, 2017, Ms. Werning presented to Dr. Vytautas Ringus at
Orthopedic and Sports Medicine Center for an evaluation of her right shoulder. Ex. 5 at
27. Upon examination, Dr. Ringus noted that Ms. Werning exhibited right shoulder
palpation at the incision site and some induration was also noted. He ordered and
reviewed X-rays of her right shoulder which showed no abnormalities. Id. Dr. Ringus
ordered an MRI for further evaluation. Id. at 28.
On October 4, 2017, Ms. Werning underwent an MRI of her right shoulder. Ex. 5
at 30. The MRI demonstrated a “1-1.5 cm high-grade undersurface partial-thickness tear
of the anterolateral supraspinatus insertion with probably full thickness component…
probably complete retracted tear of the biceps tendon…moderate probability large SLAP
tear… inflammation, spurring and arthrosis of the acromioclavicular joint mild to
moderately affecting the supraspinatus. Suggests impingement.” Id.
3

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On October 19, 2017, Ms. Werning presented to Dr. Ringus to discuss the results
of her recent MRI. Ex. 5 at 25. Dr. Ringus noted that the MRI showed a likely “full-
thickness supraspinatus tear without retraction bicipital rupture of the long head with
retraction probably large SLAP tear likely signs of impingement acromioclavicular arthritis
no other fractures or dislocations…” Id. Dr. Ringus described the MRI as “quite revealing.”
Id. He recommended that she attend physical therapy and return to the clinic in six weeks.
Id.
On October 20, 2017, Ms. Werning returned to her PCP, Dr. Anderson, for a follow-
up appointment. Ex. 2 at 94. Dr. Anderson noted that Ms. Werning “[s]aw Dr. Ringus for
her right shoulder pain that started after her Prevnar injection. MRI shows tear and the
injection just caused it to flare up. Will be doing P[hysical] T[herapy] for 6 weeks. Decided
not to take the steroid pack due to uncontrolled glucose.” Id. at 95.
Ms. Werning underwent a physical therapy evaluation of her right shoulder at
Orthopedic and Sports Medicine Center on November 10, 2017. Ex. 5 at 21. Ms. Werning
reported that she had no pain in her right shoulder until approximately three months
earlier, “until receiving a pneumonia shot she believes that this shot was the onset of her
pain.” Id. She told the physical therapist that she wanted to avoid surgery if at all possible.
Id. Ms. Werning rated her pain at this appointment as an 8 on a scale from 1 to 10. Id.
The diagnosis was “likely R[ight] supraspinatus tear and SLAP lesion, resulting in
decreased [range of motion] strength and overall functional ability, along with increased
pain.” Id. Her prognosis was listed as “fair” which “may vary or decline with decreased or
inconsistent attendance to therapy and decreased patient compliance with HEP and other
PT (physical therapy) recommendations.” Id. at 24. Ms. Werning was prescribed physical
therapy sessions two to three times weekly, up to 12 weeks as medically necessary. Id.
From November 10, 2017 through December 8, 2017, Ms. Werning attended 23
physical therapy sessions at Orthopedic & Sports Medicine Center. Ex. 3 at 2, ¶15; Ex. 5
at 21-22, 31. She recalled that her physical therapist told her that “the lump located at the
injection site was the size of a baseball or fist and that he would have to massage it down.”
Ex. 3 at 2. Ms. Werning stated that eventually, she was released from physical therapy
“due to the concerns of the increasing clicking and popping in my right shoulder. I was
advised by my therapist that he did all that could be done and that I should explore other
treatment options with my orthopedist.” Id.
On December 28, 2017, Ms. Werning returned to Dr. Ringus for a follow-up visit of
her right shoulder. Ex. 5 at 1. She reported that physical therapy had really helped her.
Ms. Werning stated that her pain and swelling was much improved, although she still had
occasional aches and pains, but the pain was tolerable. Id. She stated that she was happy
with her progress. Id. Dr. Ringus noted that from his standpoint, Ms. Werning should finish
her physical therapy and then complete her home exercise program. He instructed her to
return to the clinic in 5-6 months. Id.
On January 24, 2018, Ms. Werning returned to Dr. Ringus for a follow up
appointment for her right shoulder pain and to discuss possible surgical intervention. Ex.
4

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5 at 35. She complained that her right shoulder pain had continued, and on examination
her right arm demonstrated swelling. She also exhibited tenderness to palpation and
continued to demonstrate some reduced range of motion. Id. The assessment included a
complete tear of the right rotator cuff, arthritis of the acromioclavicular joint, subacromial
impingement of the right shoulder, nontraumatic rupture of the right proximal biceps
tendon, and a degenerative tear of the glenoid labrum of the right shoulder. Id. Dr. Ringus
recommended surgery – a right shoulder arthroscopy, labeled debridement and possible
rotator cuff repair, distal clavicle excision, and subacromial decompression. Id at. 35-36.
On March 13, 2018, Ms. Werning underwent surgical repair of her right shoulder.
Ex. 7 at 1-3. The procedures included right shoulder arthroscopic extensive debridement,
arthroscopic rotator cuff repair, arthroscopic subacromial decompression, and open distal
clavicle excision. Id.
Two weeks later, she presented to Dr. Ringus for a post-operative follow-up
appointment. Ex. 7 at 4. Ms. Werning stated that she had not yet begun post-operative
physical therapy, but she felt her pain and strength were improving, and she was “pleased
with progress.” Id. On examination, Dr. Ringus noted that Ms. Werning’s pain and swelling
was resolving as expected. Id. Her surgery staples were removed, and she was instructed
to follow up in four weeks. Id. at 5.
Ms. Werning underwent her first post-operative physical therapy session and
evaluation on March 15, 2018. Ex. 13 at 73. Based on her physical examination, it was
recommended that she attend physical therapy three times weekly, for up to 12 weeks.
Id. at 75.
Ms. Werning attended physical therapy on multiple occasions in the spring of 2018
(March 16, 21, 26, 28, 29, and April 4, 6, 10, 19, 2018). At her April 20, 2019 re-evaluation
appointment, Ms. Werning rated her pain as two to three out of 10. Ex. 13 at 49. She was
still unable to perform functional reaching activities secondary to protocol restrictions. Ms.
Werning stated she was independent with self-care activities including dressing and
showering, and she was driving with minimal limitations. Id. Her surgery wounds were
noted to be healing well and there were no signs of infection. Id. It was recommended
that Ms. Werning continue with her physical therapy. Id. at 50.
On April 25, 2018, Ms. Werning returned to Dr. Ringus for her six-week post-
operative appointment. Ex. 11 at 6. She reported that her pain and range of motion had
improved, and she was regularly attending physical therapy. Id. Dr. Ringus reviewed X-
rays taken earlier that day and noted “no worrisome findings.” Id. Ms. Werning’s right
shoulder incisions were clean and well-healed. Id. Dr. Ringus allowed Ms. Werning to
discontinue the use of her shoulder brace and encouraged her to continue with physical
therapy. Id. at 7.
Ms. Werning attended 19 sessions of post-operative physical therapy from March
29, 2018 to June 12, 2018. Ex. 11. By June 13, 2018, Ms. Werning reported to Dr. Ringus
that her right shoulder pain was “essentially resolved” and that she had done “great with
5

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therapy and is here today for final follow-up.” Ex. 8 at 6. Dr. Ringus noted that Ms.
Werning’s incisions were well-healed and that she had near full active and passive range
of motion. Id. The O’Brien and Neer Hawkins shoulder impingement tests were negative.
Id. Dr. Ringus agreed that Ms. Werning had done well with surgery and instructed her to
continue with her home exercises. She was to return on an as-needed basis and had no
restrictions on her activities. Id.
On July 1, 2019, more than one year later, Ms. Werning returned to Dr. Ringus
complaining of continued right shoulder pain for the past two months. Ex. 13 at 77. She
reported that her pain had been ongoing and slowly progressing. Ms. Werning rated her
baseline pain at a five most days, but stated it was severe with certain movements. Id.
Dr. Ringus ordered and reviewed x-rays during this appointment. He did not note any
abnormalities. Id. However, Dr. Ringus ordered an MRI and prescribed pain medications
to Ms. Werning, concerned that she may have reinjured her shoulder. Id. at 78. He
instructed her to follow-up with him after her MRI. Id.
On July 17, 2019, Ms. Werning returned to Orthopedic and Sports Medicine Center
as instructed after undergoing the MRI of her right shoulder the week prior. Ex. 12 at 6-8.
The physician assistant noted that the MRI showed post-supraspinatus tendon repair,
although there was no evidence of a recurrent tear. Id. The MRI did show “mild insertional
tendinopathy or infraspinatus with a miniscule interstitial tear. Mild glenohumeral
capsulitis with a small effusion. Mild chronic tendinopathy of distal subscapularis with a
thin insertional interstitial laminar tear…” Id. Ms. Werning was encouraged to start
attending physical therapy to improve her strength and to decrease the pain in her right
shoulder. She was instructed to follow up in six weeks. Id.
On August 9, 2019, Ms. Werning returned to Orthopedic and Sports Medicine
Center for an evaluation of her right shoulder. Ex. 13 at 29. She explained that her
shoulder pain reoccurred three months prior and described her pain as a “burning
sensation that travels down the arm just past the elbow.” Id. It was noted that Ms. Werning
had recently undergone surgery and had done well, but that now she was having trouble
“lifting, reaching overhead, and using her dominant R[ight] arm. She often wakes up at
night if she lays on her R[ight] side. She is a teacher and uses her arm a lot throughout
the day…” Id. On examination, Ms. Werning had mild swelling on the lateral aspect of
her right arm. She rated her pain as a two out of 10 and demonstrated decreased function
of her right arm due to pain and a “globally” limited range of motion in her right shoulder.
Id. She also displayed decreased strength. Id. Ms. Werning’s prognosis was rated as
“good for improvement of impairments & dysfunctions as well as pain reduction & return
to function.” Id. at 40. She was prescribed physical therapy three times weekly for up to
12 weeks. Id. at 41.
Ms. Werning attended physical therapy on August 13, 15, 16, 19, 21, 27, 28, 2019,
and September 3, 5, 10, 2019. Ex. 13 at 15. In several of her sessions, she complained
of increasing pain during her work hours, explaining that she was a teacher and worked
long hours grading papers at a computer. Id. at 31.
6

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Ms. Werning underwent a physical therapy re-evaluation at Orthopedic and Sports
Medicine Center on September 18, 2019. Ex. 13 at 11. While Ms. Werning demonstrated
an increase in the range of motion, strength, and function of her right shoulder, she was
still experiencing pain with radicular symptoms. Id. at 12. It was recommended that Ms.
Werning continue with physical therapy, three times weekly for up to another 12 weeks
as medically necessary. Id.
At her September 25, 2019 physical therapy appointment, Ms. Werning reported
that her right shoulder was “feeling better.” Ex. 13 at 7. The range of motion of her
shoulder was improved in all planes except internal rotation. Id. The plan was for Ms.
Werning to return in three weeks, with decreasing sessions, up to 12 weeks as medically
necessary. Id.
On October 3, 2019, Ms. Werning presented to Physical Therapist, Rachel Rose,
for a follow up appointment. Ex. 13 at 5. Ms. Werning explained that she had not been in
physical therapy recently due to a recent molar removal. Id. She had been on pain
medication and reported that she had been feeling well and had increased shoulder
mobility. Id. Ms. Rose noted that Ms. Werning performed her exercises well during her
session, with minimal instruction. Id. The Plan of Care stated that Ms. Werning would
continue to proceed as advised by her physician. Id. at 6.
By her October 18, 2019 physical therapy session, Ms. Werning reported that she
was pleased with her progress. Ex. 13 at 47. She still had pain but felt that her pain was
now manageable, and she intended to continue with her home exercise program. Id.
Upon examination, Ms. Werning displayed improved range of motion and strength. Id. All
her shoulder stability tests were negative, although she displayed some tenderness over
the anterior shoulder, rotator cuff interval. Id. The physical therapist noted that a continued
home exercise program and management were optimal. Ms. Werning was instructed to
follow up as needed. Id. She declined any additional steroid injections due to her
uncontrolled diabetes. Id.
Despite her improvement, Ms. Werning states that she continues to suffer from
right shoulder pain, discomfort, swelling, weakness, and limited range of motion. Ex. 3 at
5, ¶19. She continues to have difficulty reaching, lifting, pulling and stretching, especially
with overhead activities. Ex. 14 at 1. Ms. Werning states she is unable to sleep without
discomfort and becomes easily irritated and depressed due to the fatigue. She continues
to have difficulty performing household chores, grocery shopping, cooking, driving and
other activities of daily living. Ms. Werning is right-hand dominant and states that her
injury has made it “excruciatingly difficult to perform my daily activities without
assistance.” Id.
In describing her shoulder pain since her SIRVA injury, Ms. Werning stated that
the limitations in the use of her right shoulder were especially apparent over the holiday
season in 2017. Ex. 3 at 2, ¶17. She experienced severe pain when she was cooking,
lifting pots and cutting vegetables. Id. She had significant difficulty with self grooming as
she was unable to raise her right hand high enough to wash or blow dry her hair. Id. Ms.
7

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Werning needed the assistance of her husband to get dressed, and she recalled
significant limitations with driving. Id.
Ms. Werning also filed an affidavit from her husband, Stewart Wilcox-Sollof. Ex. 4.
He confirmed that his wife had no issues with her right shoulder prior to vaccination. Id.
He described the day after Ms. Werning received the Prevnar 13 vaccination, stating that
he witnessed her crying in the kitchen after she got home from work. Id. This was
concerning to him because he stated that his wife does not cry often. Id. He recalled that
his wife complained about being in excruciating pain at the injection site since receiving
the vaccination and that the pain was worsening. Id. He observed his wife in pain and
discomfort as she slept. He stated that she continued to suffer from persistent pain,
weakness, discomfort, clicking and popping in her right shoulder and that her sleep
continues to be disturbed by the pain. Id. at 2.
III. Parties’ Arguments
Ms. Werning requests that I issue a ruling finding that she is entitled to
compensation in this case. Petitioner’s Motion for Ruling on the Record (“Mot.”) at 2. She
avers that her SIRVA attributable to the Prevnar 13 vaccine is an injury listed on the
Vaccine Injury Table, and thus she is entitled to a presumption of causation. Mot. at 1-2.
Addressing each requirement for a Table SIRVA as set forth in the Qualifications and
Aids to Interpretation (“QAI”), Ms. Werning maintains that her injury meets the definition
of a Table SIRVA. Id. at 10-15; see 42 C.F.R. § 100.3(c)(10) (2017) (the additional QAI
requirements for SIRVA). Petitioner further avers that she has suffered from her SIRVA
for more than six months and has not filed a civil action or received an award or settlement
for her SIRVA. Petition at 5; Section 11(c)(1)(D)(i) (statutory six-month requirement);
Section 11(c)(1)(E) (requirement that Petitioner not have received an award or settlement
of a civil action).
In the alternative, Ms. Werning alleges that she suffered a non-Table shoulder
injury caused in fact by the Prevnar 13 vaccine she received. Memo at 2. She requested
the opportunity to file a supportive expert report or present additional evidence should the
Court deem it necessary that Petitioner proceed on her causation-in-fact claim. Id. at 15.
Respondent argues that Petitioner has failed to satisfy the criteria for a Table
SIRVA because she has not provided preponderant evidence that she “experienced
shoulder pain in the vaccinated shoulder within 48 hours of the allegedly causal
vaccination.” Respondent’s Brief (“Opp.”) at 5-6 (citing 42 C.F.R. § 100.3(a)(XIV)(B)
(Table entry for SIRVA following the influenza vaccine) and (c)(10) (additional criteria for
SIRVA set forth in the QAI)). Respondent maintains “the contemporaneous medical
records are vague as to onset and do not establish by preponderant evidence that the
onset of petitioner’s right shoulder pain began within 48-hours of vaccine administration.”
Opp. at 6.
Respondent also argues that Petitioner’s shoulder pain was not limited to her right
shoulder, maintaining that the medical records establish that petitioner experienced pain
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down her entire arm, all the way to her arm. Opp. at 7. And he maintains that because
Ms. Werning had evidence of degenerative tears as demonstrate on an MRI that could
explain her symptoms, she cannot satisfy the requirements for a SIRVA claim. Id.
Respondent also states that because at Ms. Werning’s first post-vaccination doctor’s
appointment, her range of motion of her shoulder was noted to be normal, this finding
was not consistent with SIRVA. Id.
Finally, Respondent argues that Petitioner has not proven a causation-in-fact claim
because she has not offered a reputable scientific or medical theory establishing that her
Prevnar vaccine caused her alleged shoulder injury, nor has she presented evidence
establishing that the time between her vaccination and the onset of symptoms would be
considered “medically acceptable to infer causation-in-fact.” Opp. at 8-9.
Ms. Werning filed a Reply addressing each of Respondent’s arguments, and her
responses are considered below.
IV. Fact 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
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).
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establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). The
criteria establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies
occurring after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
If, however, petitioner suffered an injury that either is not listed in the Table or did
not occur within the prescribed time frame, she must prove that the administered vaccine
caused injury to receive Program compensation. § 11(c)(1)(C)(ii) and (iii). In such
circumstances, petitioner asserts a “non-Table or [an] off-Table” claim and to prevail,
petitioner must prove her claim by preponderant evidence. § 13(a)(1)(A). The Federal
10

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Circuit has held that to establish an off-Table injury, petitioner must “prove . . . that the
vaccine was not only a but-for cause of the injury but also a substantial factor in bringing
about the injury.” Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1351 (Fed.
Cir 1999). The received vaccine, however, need not be the predominant cause of the
injury. Id. at 1351.
The Circuit Court has indicated that a petitioner “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that the vaccine was a
substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting
Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The
Circuit Court added that "[t]here must be a ‘logical sequence of cause and effect showing
that the vaccination was the reason for the injury.’” Id. The Federal Circuit subsequently
reiterated these requirements in a three-pronged test set forth in Althen v. Sec’y of Health
& Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Under this test, a petitioner is
required
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 a proximate temporal relationship between vaccination and
injury.
Id. All three prongs of Althen must be satisfied. Id. Circumstantial evidence may be
considered, and close calls regarding causation must be resolved in favor of the
petitioner. Id. at 1280.
A. 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 requirement under the QAIs for a Table SIRVA is a 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 demonstrated a lack of history of pain, inflammation, or dysfunction of
her right shoulder that would explain her symptoms. See Respondent’s Rule 4(c) Report
at 2; Ex. 2 at 1, 2-4, 37, 52-53, 85.
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2. Onset of Pain
In order to meet the definition of a Table SIRVA, a petitioner must show that she
experienced the first symptom or onset within 48 hours of vaccination (42 C.F.R. §
100.3(a)(XIV)(B)) and that her pain occurred within that same 48-hour period (42 C.F.R.
§ 100.3(c)(10)(ii) (QAI criteria)).
To support his position, Respondent cites the 24 days that lapsed before Ms.
Werning complained of and sought medical care of her right shoulder pain. Opp. at 6.
Because Ms. Werning did not seek medical treatment within 48 hours of vaccination, and
because the contemporaneous records “are vague as to onset and do not establish by
preponderant evidence that the onset of petitioner’s right shoulder pain began within 48-
hour so vaccine administration,” Respondent argues that I should find that the onset
requirement has not been met.
I find Respondent’s arguments to be wholly unpersuasive. First, the records show
that Ms. Werning did contact her doctor’s office in a relatively timely manner (i.e. less than
a month after vaccination). It is common for a SIRVA petitioner to delay seeking treatment,
thinking her injury will resolve on its own, since patients are often told by medical providers
at the time of vaccination to expect some soreness and pain for a period of time after. Ms.
Werning confirms in her affidavit that she expected the pain to resolve on its own and
waited before contacting her physician. Ex. 3 at 3. I find the length of time Ms. Werning
waited before contacting her physician’s office to report her shoulder pain to be entirely
reasonable in these circumstances, and not suggestive of an onset longer than permitted
by the Table.
Second, the medical records corroborate the contention that Petitioner’s pain
began within 48 hours of vaccination. There are a number of references in the records to
Ms. Werning experiencing pain “since” or “after” receiving her flu shot. See e.g., Ex. 2 at
86 (Ms. Werning reports that she as “having issues since vaccination” with her right
shoulder), 87 (Petitioner “is still having pain in her arm and is concerned due to this not
resolving after two months”), 16 (“P[atien]t here for severe R[ight] arm pain since getting
her Prevnar 13 vaccine nearly 3 months ago”), and 95 (“[s]aw Dr. Ringus for her right
shoulder pain that started after her Prevnar injection”); Ex. 5 at 21 (Petitioner reported no
pain in her right shoulder until approximately three months earlier, “until receiving a
pneumonia shot she believes that this shot was the onset of her pain”). By contrast, there
are no records, nor has Respondent identified a single record, that contain contradictory
statements supporting the conclusion that onset was longer. I thus find unpersuasive
Respondent’s argument that Petitioner’s self-reporting of shoulder pain is insufficient to
establish onset within 48 hours, especially since she was seen by a physician so close in
time to when she received the vaccination and consistently reported that the pain
occurred immediately after vaccination.
As the Federal Circuit has noted, it is appropriate for a special master to give
greater weight to evidence contained in medical records created closer in time to the
vaccination, even if the information is provided as part of a medical history. Cucuras, 993
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F.2d at 1528 (medical records are generally trustworthy evidence). The Circuit Court
explained that
Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These
records are also generally contemporaneous to the medical events.
Id. Based upon the above, I find there is preponderant evidence which establishes the
onset of Ms. Werning’s right shoulder pain was more likely than not immediate, and thus
within 48-hours of vaccination.
3. Scope of Pain and Limited ROM
I likewise find that the scope of pain and limited range of motion was limited to
Petitioner’s right shoulder. To establish a Table SIRVA, a petitioner’s pain and reduced
ROM must be limited to the shoulder in which the vaccination alleged as causal was
administered. 42 C.F.R. § 100.3(c)(10)(iii). Respondent argues that because Ms. Werning
complained at her first post-vaccination appointment that she experienced
“shooting/throbbing pains at times all the way down into her hand,” and that in August
2019, she also described pain as traveling down her arm past the elbow, that she has not
met this criterion. But this argument is not persuasive.
Ms. Werning complained of, was diagnosed with, and received treatment solely for
a right shoulder injury. She developed a palpable lump at the injection site (her right
shoulder) that lasted for months after vaccination. Ex. 3 at ¶5; Ex. 5 at 27. Her physicians
documented that she had a reaction to her right shoulder from her vaccination. Ex. 2 at
16. An MRI of Ms. Werning’s right shoulder confirmed a right shoulder injury, including a
torn rotator cuff and SLAP tear. Most notably, during Ms. Werning’s initial physical therapy
evaluations and later sessions, her entire right shoulder and arm were thoroughly
examined, and the assessment of her injury and her therapy was focused on her right
shoulder. The assessment listed in her physical therapy records state: “(1) Complete tear
of the right rotator cuff, (2) Pain in right shoulder, (3) Stiffness of right shoulder, not
elsewhere classified, (4) Atrophy of muscle of right shoulder.” Ex. 5 at 36. While I
acknowledge Ms. Werning did initially mention pain travelling to her hand shortly after
vaccination and once again after her shoulder surgery, I find that there is preponderant
evidence in her medical and treatment records to find her pain and limited range of motion
was limited to her right shoulder.
Ms. Werning was diagnosed and treated solely for pain and limited range of motion
to her right shoulder. I therefore find that there is preponderant evidence to support a
finding that Petitioner’s pain and reduced range of motion was limited to her right
shoulder. Thus, she satisfies the third criterion for a SIRVA injury.
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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). Respondent makes a very brief argument that Petitioner had evidence
of degenerative tears that could explain her right shoulder symptoms. Opp. at 7. However,
in the vast majority of SIRVA claims where petitioners undergo an MRI of the affected
shoulder, there is evidence of degenerative symptoms of the shoulder, especially in
certain specific age groups of the population. Ms. Werning was 67 years-old at the time
she underwent the MRI of her right shoulder. It is not uncommon to find such evidence of
degeneration of the shoulder on an MRI scan, and it does not rise to the level of a
disqualifying fact for purposes of establishing a SIRVA claim.
I also note that Ms. Werning’s primary care physician identified the Prevnar
vaccine as the source of Petitioner’s shoulder injury, noting that Ms. Werning “[s]aw Dr.
Ringus for her right shoulder pain that started after her Prevnar injection. MRI shows tear
and the injection just caused it to flare up.” Ex. 2 at 94-95.
Thus, the record contains preponderant evidence establishing that there is no
other condition or abnormality which would explain the symptoms of Petitioner’s right
shoulder injury.
A. Other Requirements 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.
The record shows that Petitioner received the Prevnar vaccine intramuscularly in
her right arm on June 23, 2017, at the office of her primary care physician located in
Norman, Oklahoma. Ex. 2 at 11-12, 84-85; Ex. 4 at ¶4; see Section 11(c)(1)(A) (requiring
receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the
United States or its territories). There is no evidence that Petitioner has collected a civil
award for her injury. Petition at 5-6; Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that the onset of Petitioner’s right shoulder pain was
immediate and thus, within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii)
(setting forth this QAI requirement). This finding also satisfies the requirement that
Petitioner’s first symptom or manifestation of onset occur within the time frame listed on
the Vaccine Injury Table. 42 C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours
for a Table SIRVA following receipt of the influenza vaccine). Therefore, Petitioner has
satisfied all requirements for a Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the duration of her
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
14

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the residual effects of his or her left shoulder injury for more than six months. See Section
11(c)(1)(D)(i) (statutory six-month requirement). The records demonstrate, and
Respondent does not contest, that Ms. Werning suffered the residual effects of her
shoulder injury for more than six months. See, e.g., Ex. 7 at 1-3 (the records of Ms.
Werning’s right shoulder surgery). Thus, this requirement is also met.
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
In view of the evidence of record, I find that Petitioner is entitled to
compensation.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that Petitioner’s right shoulder injury meets the definition for a
Table SIRVA. Thus, causation is presumed, and Petitioner is entitled to
compensation in this case. A separate damages order will be issued.
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-00267-2
Date issued/filed: 2021-05-19
Pages: 8
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/17/2021) regarding 74 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made. (Main Document 83 replaced on 8/12/2021 with correct PDF) (sw).
--------------------------------------------------------------------------------
Case 1:18-vv-00267-UNJ Document 83 Filed 05/19/21 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0267V
UNPUBLISHED
M.W., Chief Special Master Corcoran
Petitioner, Filed: March 17, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Pneumococcal
Conjugate 13-Valent (Prevnar)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Injury (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 21, 2018, M.W. 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 as a result of receiving a pneumococcal conjugate 13-Valent
(“Prevnar 13”) vaccine on June 23, 2017, she suffered from a shoulder injury related to
vaccine administration (“SIRVA”), including a complete tear of the biceps tendon, a large
SLAP tear, partial-thickness tear of the anterolateral supraspinatus, impingement,
spurring of the acromioclavicular joint, arthrosis of the acromioclavicular joint and
inflammation. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters, and Petitioner was determined to be entitled to damages – but
the parties could not agree on the amount to be awarded.
1 Although this Decision has been deemed unpublished, it will be posted 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-00267-UNJ Document 83 Filed 05/19/21 Page 2 of 8
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to $195,000.00, representing actual past pain and suffering,
plus $7,996.30 for past unreimbursed expenses, for a total of $202,996.30.
I. Relevant Procedural History
On July 27, 2020, I entered a ruling finding Petitioner entitled to compensation.
The parties then entered into discussions to resolve the amount of damages to be
awarded to Petitioner but could not reach agreement. (ECF No. 51). Accordingly, on
September 23, 2020, a scheduling order was issued setting a schedule for the parties to
file briefs on damages. (ECF Nos. 59 (“Br.”), 60 (“Opp.”)), and 61 (“Reply”)). I also
proposed that the parties be given the opportunity to argue their positions at a Motions
Day hearing, at which time I would decide the disputed damages issues. That hearing
was held on February 26, 2021,3 and the case is now ripe for a determination.
II. Relevant Medical History
a. Medical History Prior to Entitlement Ruling
A detailed recitation of the facts through approximately October 2019 is found in
the Ruling on Entitlement issued on July 27, 2020. (ECF No. 51). Since the date of that
ruling, Petitioner has undergone additional treatment, so a brief summary is provided
below.
On June 23, 2017, Petitioner (age 65) received the Prevnar 13 vaccine in her right
deltoid (dominant shoulder) at the office of her primary care provider, Dr. Lacy Anderson,
located at Integris Family Care in Norman, Oklahoma. Ex. 2 at 11-12, 84-85; Ex. 3 at ¶3;
Ex. 4 at ¶3. She had no documented history of right shoulder injuries prior to this date.
Approximately three and one half weeks after vaccination, on July 17, 2017,
Petitioner contacted her physician’s office to report shoulder pain after vaccination. Ex. 2
at 86. Over the next few months, Petitioner was seen by her physician and an orthopedic
surgeon for her shoulder. After undergoing an MRI followed by conservative treatment
(23 physical therapy sessions), she ultimately underwent surgical repair of her right
shoulder on March 13, 2018. Ex. 7 at 1-3.
3 At the end of the hearing held on February 26, 2021, I issued an oral ruling from the bench on damages
in this case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the
case’s docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2

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After surgery, Petitioner attended post-operative physical therapy. By June 13,
2018, Petitioner reported to her orthopedic surgeon that her right shoulder pain was
“essentially resolved” and that she had done “great with therapy”. Ex. 8 at 6.
However, more than a year later, Petitioner returned to her physician complaining
that her shoulder pain had returned. Ex. 13 at 77. She reported that her pain had been
ongoing and slowly progressing. Id. She attended an additional round of physical therapy
in August and September 2019. Ex. 13 at 15. By October, she had reported that her pain
was “manageable” and she intended to continue with her home exercise program.” Ex.
13 at 47.
b. Subsequent Medical History after Entitlement Ruling
Due to the Covid-19 pandemic, Petitioner stated that she was unable to seek
treatment for her shoulder for several months in 2020. She resumed treatment in August
2020, and underwent another 15 sessions of physical therapy through November 2020.
She rated her pain at a 6/10 at the time.
Petitioner underwent a third MRI on December 1, 2020, which demonstrated mild
tendinopathy of the supraspinatus and infraspinatus tendon with minuscule insertional
tears of the infraspinatus. Ex. 28 at 28. There was also evidence of a torn long head
tendon of the bicep. Id. Her orthopedic surgeon, Dr. Ringus, recommended that Petitioner
undergo a second surgery to repair her shoulder. Id. at 29.
Petitioner underwent this second surgery (a right shoulder arthroscopy with
extensive debridement) on her right shoulder on January 12, 2021. Ex. 25 at 19-21. She
underwent an additional 11 sessions of post-operative physical therapy. Ex. 25 at 5-18;
Ex. 29 at 2. During her most recent visit on February 22, 2021, Petitioner reported that
she was experiencing “shooting pain from time to time,” rated her pain at a 4/10, and
reported severe pain when raising her arm up. Ex. 29 at 2. On examination, she exhibited
strength and range of motion deficits. Id.
At the time of the hearing, Petitioner was continuing to receive treatment for her
shoulder. She reports that she remains symptomatic to this day.
III. Legal Standard
Compensation awarded pursuant to the Vaccine Act may include an award “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, . . . not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may
recover “actual unreimbursable expenses incurred before the date of judgment award
3

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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). 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 precise 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) (“Awards 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)).
A special master may also look to prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own
experience adjudicating similar claims. 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). Importantly, however, it must also be stressed that pain and suffering
is not determined based on a continuum. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (2013).
In Graves, Judge Merrow 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, criticizing this as constituting “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, he
found that pain and suffering should be assessed by looking to the record evidence, prior
pain and suffering awards within the Vaccine Program, and a survey of similar injury
4

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claims outside of the Vaccine Program, applying the statutory cap only thereafter. Id. at
595.
IV. Appropriate Compensation in this SIRVA Case
a. Awareness of Suffering
Awareness of suffering is not typically a disputed issue in cases involving SIRVA
– and it does not appear to be disputed herein. Thus, based on the circumstances of this
case, I find that Petitioner had full awareness of her suffering, and proceed to analyze the
severity and duration of the injury.
b. Severity and Duration of Pain and Suffering
With respect to the severity and duration of the injury, Petitioner’s medical records
and her affidavit provide a description of the pain she experienced throughout the duration
of her injury.
As of the date of the damages hearing in this case (February 26, 2021), Petitioner
has undergone a total of 71 sessions of physical therapy, three MRIs and two shoulder
surgeries. In the most recently dated physical therapy session, Petitioner reported
ongoing pain rated 4/10, difficulty sleeping, severe pain when raising her arm up and to
the side, and objective range of motion deficits and weakness. Petitioner complains that
she has difficulty performing her duties as a schoolteacher which involved prolonged
typing and writing notes on the board for her students. She continues to receive ongoing
treatment for her shoulder.
Despite Petitioner’s second surgery and ongoing treatment, Respondent argued
during the hearing that Petitioner should receive only $107,500 for her past pain and
suffering in this case. Although Respondent did not specifically discuss any comparable
cases in his brief or during oral argument, he argued that taking into account the overall
amounts awarded to date in SPU SIRVA cases, plus the severity and duration of pain
reported by Petitioner, an award of $107,500 for her pain and suffering is generous and
appropriate. Petitioner’s first surgery was “successful,” in that she had a good recovery,
and that her orthopedic surgeon, Dr. Ringus, noted that Petitioner’s shoulder injury had
“essentially resolved” in June 2018, which was just three months after her first surgery.
Respondent also stressed that Petitioner did not seek additional treatment for more than
a year after that particular visit. She therefore had not shown by preponderant evidence
that any treatment she sought in 2019 and 2020 was directly related to her vaccination,
but instead corresponded to a “new” shoulder injury that began in 2019.
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I agree with Petitioner that this case most analogous to Schoonover v. Sec’y of
Health & Human Servs., No. 16-1324V, 2020 WL 1040642 (fed. Cl. Jan. 20, 2019). There,
the petitioner reported constant pain, even at rest, and often described pain with activity
as severe, with a rating of eight out of ten. Furthermore, the pain did not improve following
multiple courses of physical therapy or two surgeries. Id. at *4. That petitioner also
underwent lengthy and significant medical and surgical care and treatment, and suffered
episodes of severe pain and limited mobility. Id. at *5. In deciding Schoonover, former
Chief Special Master Dorsey observed that it was (at the time) the only SIRVA case in
the Program where a petitioner underwent two shoulder surgeries on top of multiple
steroid injections and numerous physical therapy sessions. Id. As a result, the
Schoonover petitioner was awarded $200,000 in past pain and suffering, plus $1,200 per
year for her life expectancy, reduced to net present value. Id. at *6.
Like Schoonover, the severity of the injury at issue in this case, along with the
overall course of injury including the number of interventions, all support a higher than
normal award for pain and suffering. Based on the current records, over the course of
nearly four years, Petitioner has experienced two surgeries, 71 sessions of PT, and three
MRIs. This case definitely provides circumstances warranting a significant pain and
suffering award.
While Respondent argues that the gap in treatment from 2018 to 2019 suggests
Petitioner’s more recent pain and medical interventions pertain to a distinguishable injury,
I find this contention unpersuasive. There is no evidence that Petitioner had any type of
right shoulder injury prior to her June 23, 2017 vaccination. The reemergence of her
shoulder pain in 2019 is more likely than not attributed to her initial shoulder injury which
I have already found was caused by the vaccination. Her two subsequent MRIs in 2019
and 2020 showed similar findings to her very first MRI in October of 2017. In addition,
Petitioner has persuasively established that her schedule as a schoolteacher precluded
her from attending additional doctor visits and physical therapy in early 2019. And the gap
in treatment in 2020 can easily be explained by the Covid-19 pandemic, where many
individuals did not, or could not, seek medical treatment for many months. Accordingly,
these “gap” arguments are unavailing, and I find that Petitioner’s shoulder injury, while it
varied in degree of severity, more likely than not, persisted for the entire nearly four year
period of time.
Overall, given the facts of this case and considering the arguments presented by
both parties at the hearing, a review of the cited cases, and based on the record as a
whole, I find that $195,000.00 in compensation for past pain and suffering is reasonable
and appropriate in this case.
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c. Award for Past Unreimbursed Expenses
Petitioner requests $7,996.30 in past unreimbursable expenses. Brief at 9; Ex. 32.
This includes an additional $1,200.18 for out-of-pocket expenses related to Petitioner’s
January 12, 2021 surgery and her post-operative physical therapy. Respondent, however,
proposes only reimbursing Petitioner a total of $6,796.12. For the reasons set forth more
fully in the transcript, Petitioner is awarded the full amount of $7,996.30 for her past
unreimbursable expenses, since I have determined that the recent surgery is associated
with Petitioner’s SIRVA injury.
d. Future Pain and Suffering and Unreimbursable Medical Expenses
Petitioner has requested a total of $20,000 for her projected future pain and
suffering, and $2,000 for her projected future unreimbursable out-of-pocket expenses.
(Br. at 16). But I do not find that an award of future pain and suffering is appropriate in
this case. It does not appear that Petitioner has the level of disability that some petitioners
face after a SIRVA injury, and no doctor has opined that Petitioner’s shoulder injury is
permanent in any way. Petitioner also has not presented any medical opinions or
evidence to support her projected figures for future treatment expenses. The fact that she
is continuing to treat for her shoulder injury is not, in and of itself, enough to support her
claim (especially since the record suggests her recent procedure was successful, and her
post-operative status is proceeding as expected, (see Ex. 25 generally)) and I find her
projections, without this support, to be too speculative. Therefore, Petitioner’s request for
future out-of-pocket damages is also denied.
V. CONCLUSION
In light of all of the above and consistent with my oral ruling on February 26, 2021
(which is fully adopted herein), I award Petitioner a lump sum payment of $202,996.30,
(representing $195,000.00 for Petitioner’s actual pain and suffering and $7,996.30 for
unreimbursable medical expenses) in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under Section
15(a) of the Vaccine Act. Id.
The clerk of the court is directed to enter judgment in accordance with this
decision.4
4 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/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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