VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00527
Package ID: USCOURTS-cofc-1_18-vv-00527
Petitioner: Michael Joseph Deutsch
Filed: 2018-04-10
Decided: 2023-04-03
Vaccine: influenza
Vaccination date: 2016-12-01
Condition: shoulder pain and other symptoms
Outcome: compensated
Award amount USD: 70255

AI-assisted case summary:
Michael Joseph Deutsch, a 63-year-old male, filed a petition for compensation under the National Vaccine Injury Compensation Program on April 10, 2018. He alleged that an influenza vaccine received on December 1, 2016, caused him to suffer shoulder pain and other symptoms, with residual effects lasting more than six months. Initially, the respondent contested entitlement, arguing that the petitioner failed to prove the vaccine was administered in his left shoulder and that the onset of pain did not meet the 48-hour window for a Table SIRVA claim. However, following a ruling in the petitioner's favor on these points, the respondent conceded entitlement. The parties were unable to agree on damages, leading to a decision awarding compensation. Mr. Deutsch received the influenza vaccine in his left shoulder on December 1, 2016. He experienced left shoulder pain shortly after vaccination. His medical history prior to vaccination was significant for glaucoma, gout, boutonniere deformity of the finger, spider veins, and hyperlipidemia, but he had no prior shoulder complaints. Mr. Deutsch reported pain around the vaccination site 35 days after receiving the shot and presented with ongoing left shoulder pain one week later, noting increased pain with certain range of motion activities. He was assessed with rotator cuff syndrome and received an intra-articular shoulder steroid injection on March 31, 2017. He continued to experience pain and received a second steroid injection on July 13, 2017, and a third on February 27, 2018. Mr. Deutsch stated that he stopped formal treatment in early 2018 because he was not making progress, opting to use his right arm exclusively, take Naproxen, and perform home exercises. He returned to treatment on August 18, 2020, with continued left shoulder pain, receiving a fourth cortisone injection. He then underwent fifteen physical therapy visits from August 21, 2020, through October 9, 2020. The total treatment course, including gaps, spanned approximately four years. The Special Master, Chief Special Master Brian H. Corcoran, issued a Ruling on Entitlement on December 1, 2021, finding Mr. Deutsch entitled to compensation. Subsequently, on April 3, 2023, Chief Special Master Corcoran issued a Decision Awarding Damages. The decision awarded Mr. Deutsch $70,000.00 for pain and suffering and $255.00 for unreimbursable expenses, totaling $70,255.00. Petitioner was represented by Maximillian J. Muller of Muller Brazil, LLP, and Respondent was represented by Camille Michelle Collett of the U.S. Department of Justice.

Theory of causation field:
Petitioner Michael Joseph Deutsch, age 63, received an influenza vaccine on December 1, 2016. He alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) as a "Table" injury. Respondent initially contested entitlement, arguing the vaccine was not administered in the left shoulder and the onset of pain did not meet the 48-hour window for a Table SIRVA claim. The Special Master ruled in Petitioner's favor on these points, and Respondent conceded entitlement. Petitioner experienced left shoulder pain shortly after vaccination, with treatment including four cortisone injections and fifteen physical therapy visits over approximately four years, with a significant gap in treatment between February 2018 and August 2020. Chief Special Master Brian H. Corcoran awarded Petitioner $70,000.00 for pain and suffering and $255.00 for unreimbursable expenses, totaling $70,255.00, on April 3, 2023. Petitioner was represented by Maximillian J. Muller, and Respondent by Camille Michelle Collett.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00527-0
Date issued/filed: 2021-10-27
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/24/2021) regarding 56 Findings of Fact & Conclusions of Law,, Scheduling Order,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0527V
UNPUBLISHED
MICHAEL DEUTSCH, Chief Special Master Corcoran
Petitioner, Filed: September 24, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset and Site of
HUMAN SERVICES, Vaccination; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On April 10, 2018, Michael Deutsch 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) from an influenza ("flu”) vaccine he received on December 1,
2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
1 Because this unpublished Fact 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). This means the Fact 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 2 of 10
For the reasons discussed below, I find the vaccination alleged as causal was
administered in Petitioner’s left deltoid, and that the onset of Petitioner’s shoulder pain
occurred within 48 hours of vaccination.
I. Relevant Procedural History
On June 9, 2020, about 14 months after the case was initiated, Respondent filed
a Rule 4(c) Report arguing that Petitioner had not established entitlement to
compensation. ECF No. 48. Respondent specifically maintained that “it is unclear whether
[P]etitioner’s initial shoulder pain occurred within 48 hours of vaccine administration.” Id.
at 6. Respondent further argued that “the vaccine administration record itself reflects that
[P]etitioner received the vaccine in the right shoulder and his shoulder pain occurred in
his left shoulder.” Id. at 7.
On August 31, 2020, Petitioner filed a Motion for a Fact Ruling seeking a fact ruling
on the issues of site of vaccination and onset of pain. ECF No. 50. On October 9, 2020,
Respondent filed a response to the motion. ECF No. 54. The issues of site of vaccination
and onset are ripe for a fact ruling.
II. Issue
The following issues are contested: (1) whether Petitioner received the vaccination
alleged as causal in his right or left arm; and (2) whether Petitioner’s first symptom or
manifestation of onset after vaccine administration (specifically pain) occurred within 48
hours as set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation
(“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(c)(10)(ii)-(iii) (required onset for pain listed
in the QAI; pain and reduced range of motion limited to the shoulder in which the
intramuscular vaccine was administered).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove by a
preponderance of the evidence the matters required in the petition by Vaccine Act Section
11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). The Federal Circuit has said that
Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 3 of 10
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.
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they should be
afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V,
2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005).
The Federal Circuit recently stressed, however, that records enjoy no automatic
presumption of accuracy, despite their “trustworthy” evidentiary character. Kirby v. Sec’y
of Health & Human Servs., 997 F.3d 1378, 1384 (Fed. Cir. 2021). Indeed, “medical
records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs.,
42 Fed. Cl. 381, 391 (1998); see also Lowrie, 2005 WL 6117475 at *19 (“written records
which are, themselves, inconsistent, should be accorded less deference than those which
are internally consistent”).
The Court has outlined four possible explanations for inconsistencies between
contemporaneously created medical records and later testimony: (1) a person’s failure to
recount to the medical professional everything that happened during the relevant time
period; (2) the medical professional’s failure to document everything reported to her or
him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a
person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health
& Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
Thus, medical records may be outweighed by testimony that is given later in time
that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing
Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed.
Cl. Spec. Mstr. June 30, 1998)). The credibility of the individual offering such testimony
must also be determined. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367,
1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 4 of 10
The special master is obligated to fully consider and compare not only the medical
records, testimony, but also all other “relevant and reliable evidence contained in the
record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also
Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that
it is within the special master’s discretion to determine whether to afford greater weight to
medical records or to other evidence, such as oral testimony surrounding the events in
question that was given at a later date, provided that such determination is rational). And
although later oral testimony that conflicts with medical records is less reliable as a
general matter, it is appropriate for a special master to credit a petitioner’s lay testimony
where is does not conflict with the contemporaneous records. Kirby, 997 F.3d at 1382-
84.
IV. Finding of Fact
A. Site of Vaccination
Based on a review of the entire record, including all medical records and affidavits,
the arguments in Respondent’s Rule 4(c) Report, the arguments in Petitioner’s Motion for
a Fact Ruling, and the arguments in the response thereto, I find that Petitioner’s
December 1, 2016 flu vaccine was administered in his left arm, as he contends. The
following points are particularly relevant to that finding:
 Petitioner’s pre-vaccination medical records reveal no injuries,
inflammation, or dysfunction in either shoulder or arm. At most, Petitioner
suffers from gout, which has caused deformities in his hands. Ex. 1 at 2.
 Petitioner received the flu vaccine at his primary care physician (“PCP”) in
Cary, North Carolina, on December 1, 2016. Ex.1 at 1. The vaccine record
states that the vaccine was administered into Petitioner’s right deltoid. Id.
 At his initial visit to his doctor for his shoulder pain, on January 12, 2017,
Petitioner reported, and Nurse Practitioner (“NP”) Thompson recorded, “flu
shot received 12/1/16 in patient’s left arm.” Ex. 1 at 13 (emphasis added).
 At the same January 12, 2017 visit, NP Thompson’s written notes state that
“Jobe’s test performed – noted pain and weakness of left arm” and ordered
“Xray of left shoulder.” Ex. 1 at 13. Later in the record, NP Thompson noted
that Petitioner reported “at patient’s last visit he received the flu shot into his
left arm.” Id. at 14. Under progress notes, NP Thompson noted: “positive for
arthralgias (left shoulder/arm pain).” Id. at 15.
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 5 of 10
 Under the “Physical Exam” portion of the record from the January 12, 2017
visit, NP Thompson stated that Petitioner “exhibits decreased range of
motion (due to pain), tenderness (deep palpation), pain (with movement),
and decreased strength (with certain ROM exercises).” However, those
notations follow the words “Right Shoulder.” Ex. 1 at 18 (emphasis added).
 On March 31, 2017, Petitioner presented to Dr. Steve Struble for “evaluation
of L shoulder pain.” Ex. 3 at 8. Dr. Struble examined Petitioner and found
his right shoulder, elbow and wrist/hand had full range of motion, negative
impingement tests, full strength and no pain. Id. at 9. Dr. Struble’s exam of
Petitioner’s left shoulder revealed “limited motion to 110 degrees with
catching and pain. Positive Hawkin’s. Mild tenderness over AC joint” and
“pain in abduction of arm in scapular plane.” Id. Dr. Struble ordered x-rays
of Petitioner’s left shoulder. Ex. 3 at 10. He diagnosed Petitioner with rotator
cuff bursitis, administered a DepoMedrol injection, and recommended
physical therapy. Id.
 Petitioner presented to Dr. Struble two additional times, on July 13, 2017
and February 27, 2018. Ex. 3. At each visit, Dr. Struble noted decreased
range of motion, pain, and positive Hawkin’s impingement test in
Petitioner’s left shoulder. Id. at 2-7. Dr. Struble administered a cortisone
injection and recommended physical therapy at each appointment. Id. at 2-
7.
 Petitioner submitted two affidavits asserting that his flu shot was
administered into his left shoulder. Ex. 5, 10. Specifically, Petitioner stated
that NP Thompson left the examination room and another nurse entered to
administer the vaccine. Ex. 10 at ¶1. The vaccine administration record
confirms that the injection was given by Pamela Divincenzo, CMA. Ex. 1 at
1. Mr. Deutsch stated that he recalled that he was sitting to the right, behind
the door and that he remembered “very vividly receiving the shot in my left
arm. This is not something I could forget considering what I dealt with as a
result.” Ex 10 at ¶1.
 Petitioner has also stated that once he was made aware of the inaccurate
information in his medical records, he took steps to correct the records. Ex.
10 at ¶11-12. He represents that he “called 3 times and visited the office
twice.” Id. at 11. On March 23, 2019, Petitioner submitted a request to
amend the December 1, 2016 record, which was subsequently denied. Ex.
13.
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 6 of 10
 The records do not contain any complaints of nor treatment for right
shoulder pain.
The entirety of the record preponderantly supports the conclusion that Petitioner
more likely than not received the December 1, 2016 flu vaccine in his left arm.
I note the degree to which Petitioner was consistent in his pain reporting when
seeking treatment. On January 5, 2017, in his first communication to his primary care
provider about the problem (not long after vaccination), Petitioner stated that “since
receiving the flu shot, he continued to have pain around the area where the shot was
given.” Ex. 2 at 2. Although Mr. Deutsch did not here identify which arm had pain in the
email, he did mention that he made an appointment for January 12, 2017 to address the
pain.” Id. at 1. Then, at the January 12, 2017 visit, Mr. Deutsch complained of “pain in his
left shoulder.” Ex. 1 at 13. Mr. Deutsch thereafter continued to complain of left shoulder
pain at each subsequent doctor encounter, including with Dr. Struble, his orthopedist. Ex.
3. Petitioner never complained of right shoulder pain.
The record of the January 12, 2017 appointment with Nurse Practitioner Thompson
is admittedly problematic, since the physical exam notes from that record state that Mr.
Deutsch’s right shoulder had pain, limited range of motion, and decreased strength. Ex.
1 at 18. However, the remainder of the record indicates that NP Thompson treated
Petitioner’s left shoulder - and in both sections where NP Thompson recorded Petitioner’s
complaints, she referenced his left arm. Ex. 2 at 13 (“Flu shot received 12/1/16 in patient’s
left arm. Since that time he is [sic] experienced pain in his left shoulder.”); Ex. 2 at 14 (“At
patient’s last visit he received the flu shot into his left arm.”). NP Thompson gave
Petitioner the Jobe’s test – and “noted pain and weakness of left arm.” Id. at 13. Further,
NP Thompson noted the following under her review of systems: “Musculoskeletal:
Positive for arthralgias (left shoulder/arm pain).” Id. at 15. Finally, NP Thompson ordered
an x-ray of Mr. Deutsch’s left shoulder. Id. at 13. Accordingly, even this some-what
equivocal record provides support for Petitioner’s contention about the situs of
vaccination, beyond his own witness statements. Taken as a whole, it is reasonable to
believe that NP Thompson provided evaluation and treatment to Petitioner’s left shoulder,
despite the single notation to referring his right shoulder and arm.
Mr. Deutsch’s vaccine administration record is similarly problematic, since it
indicates that he received the vaccine in his right deltoid. Ex. 1 at 1. Petitioner’s
supplemental affidavit, however, provides some additional details about the
circumstances of administration that call the record into doubt. As he has explained, NP
Thompson left the examination room and another nurse entered to administer the
vaccine. Ex. 10 at ¶1. Petitioner recalls sitting to the right, behind the door. Id. He stated
that he remembers “very vividly receiving the shot in my left arm. This is not something I
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 7 of 10
could forget considering what I dealt with as a result.” Id. The vaccine administration
record confirms that the injection was given by Pamela Divincenzo, CMA, and not by NP
Thompson. Ex 1. At 1.
Petitioner was unaware that his vaccine record stated he received the injection in
his right arm until he was alerted to the fact by his attorney’s legal assistant. Ex. 10 at
¶11. On March 23, 2019, Petitioner made a formal request to have his medical records
of December 1, 2016 corrected. Ex. 13 at 3. The request was denied on April 4, 2019,
because it was deemed by his medical provider that “the information is accurate and
complete” as attested to by NP Thompson and her clinical supervisor, Michelle Walsh,
RN, neither of whom were present when the vaccine was administered. Id. Respondent
argues that the denial corroborates the record’s accuracy, given that it was signed by NP
Thompson, who treated Petitioner on both December 1, 2016 and January 12, 2017. Opp.
at 10. However, Mr. Deutsch only sought to correct the record with respect to identified
situs of vaccine administration. Ex. 13 at 3. NP Thompson did not administer the vaccine
and was not in the room when it was given. Ex. 2 at 1; Ex. 10 at ¶1. And both the request
to change the record and the denial thereof occurred more than two years after the
vaccination – meaning that neither contention has temporal “superiority” over the other.
Other than a general statement that the record is accurate, there is no evidence in the
record regarding how the decision to deny the request was reached. Thus, I do not give
the denial significant weight.
Petitioner’s medical records show that he had no history of any pain, inflammation,
or dysfunction in either shoulder or arm. He suffered from left shoulder pain after
vaccination, and he attributed it to a flu shot administered into his left shoulder. Ex. 1, 2,
3, 6, 10. He received treatment only to his left shoulder, including physical examinations,
x-rays, and cortisone injections, from both NP Thompson and Dr. Struble. Ex. 2, 3. There
is no indication in the record of any other possible cause of Petitioner’s left shoulder pain.
Overall, Petitioner’s own assertions are sufficiently corroborated by the medical
record to accept his contention of vaccine situs. At worst, the conflicting medical records
make this a “close-call,” but in such cases Program case law counsels deciding the matter
in a petitioner’s favor. Roberts v. Sec’y of Health & Human Servs., No. 09-427V, 2013
WL 5314698, at *10 (Fed. Cl. Aug. 29, 2013). Accordingly, I find it more likely than not
that the vaccine alleged as causal in this case was administered to Petitioner in the left
shoulder/arm on December 1, 2016.
B. Onset
Based on a review of the entire record, including all medical records and affidavits,
the arguments in Respondent’s Rule 4(c) report, and the arguments in Petitioner’s Motion
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Case 1:18-vv-00527-UNJ Document 59 Filed 10/27/21 Page 8 of 10
for a Fact Ruling, and the arguments in the response thereto, I find that the onset of
Petitioner’s pain occurred within 48 hours of vaccine administration. I find the following
points to be particularly relevant:
 Petitioner’s medical records from prior to his vaccination reveal gout,
arthritic deformity of his hands, and high cholesterol, but no injuries to or
medical issues with either shoulder or arm. See Ex. 2, 12, 14.
 Petitioner recalled that he “was surprised at the pain after [the nurse] left
the room, much more than a normal shot. I immediately thought did she hit
a nerve or a bone?” Ex. 10 at ¶2.
 Petitioner’s wife recalled that Petitioner returned from his annual physical in
December of 2016 “and complained of pain in his left shoulder where he
just received his flu shot.” Ex. 11 at ¶1.
 Petitioner stated that believed the pain would subside in a few hours or a
few days. Ex. 10 at ¶2. He stated that he tried to relieve the pain with
“aspirin, warm compresses, Naproxen, and prescription medication” before
he “was forced to seek treatment.” Id. at ¶5.
 On January 5, 2017, Petitioner emailed NP Thompson stating that “since
receiving the flu shot I continue to have pain around the area where the shot
was given.” Ex. 2. Petitioner made an appointment for January 12, 2017.
 On January 12, 2017, Petitioner saw NP Thompson as his primary care
provider, with “concern of arm still sore after flu shot.” Ex. 2 at 11. Petitioner
reported “flu shot received 12/1/16 in patient’s left arm. Since that time he
is [sic] experienced pain in his left shoulder. Reports increased pain with
certain range of motion activities. Reports ineffective resolution of
symptoms with OTC NSAID use, heat, or ice applied to the area.” Id. at 13.
 On March 31, 2017, Petitioner presented to Dr. Steve Struble for “evaluation
of L shoulder pain.” Ex. 3 at 8. Dr. Struble noted that Petitioner had “tried
NSAIDs PRN with some relief.” Id. Dr. Struble examined Petitioner and
found his right shoulder, elbow and wrist/hand had full range of motion,
negative impingement tests, full strength and no pain. Id. at 9. Dr. Struble’s
exam of Petitioner’s left shoulder revealed “limited motion to 110 degrees
with catching and pain. Positive Hawkin’s. Mild tenderness over AC joint”
and “pain in abduction of arm in scapular plane.” Id. Dr. Struble ordered x-
rays of Petitioner’s left shoulder. Ex. 3 at 10. He diagnosed Petitioner with
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rotator cuff bursitis, administered a DepoMedrol injection and
recommended physical therapy. Id.
 Petitioner presented to Dr. Struble two additional times, on July 13, 2017
and February 27, 2018. Ex. 3. At each visit, Dr. Struble noted decreased
range of motion, pain, and positive Hawkin’s impingement test in
Petitioner’s left shoulder. Id. at 2-7. Dr. Struble administered a cortisone
injection and recommended physical therapy at each appointment. Id. at 2-
7.
 There is nothing in the records that suggest that Petitioner sought or
received treatment for his shoulder pain or any other medical issue during
the time between his vaccination and when he first sought treatment for his
left shoulder pain.
The evidence preponderantly establishes that Mr. Deutsch’s shoulder pain began
within 48 hours of receiving the flu vaccine on December 1, 2016. Petitioner sought input
from his primary care provider by email on January 5, 2017, approximately one month
after his vaccination. Ex. 2 at 2. In that email, he stated that he “continue[d] to have pain
around the area where the shot was given,” suggesting onset at some time prior. Id. One
week later, he presented to his primary care provider for an evaluation of his shoulder
pain. Ex. 1 at 11. The record states that Mr. Deutsch received a flu shot on 12/1/16 and
“since that time he is [sic] experienced pain in his left shoulder.” Id. The January 12, 2017
medical record puts the onset of Petitioner’s shoulder pain as December 1, 2016, the date
of vaccination.
Petitioner’s affidavit testimony is consistent with the record of January 12, 2017.
Mr. Deutsch states that he had pain immediately upon administration of the vaccine on
December 1, 2016. Ex. 10 at ¶1. He explained that he was “surprised at the pain after
she [the nurse] left the room. I immediately thought – did she hit a nerve or a bone?” Id.
Additionally, Petitioner’s wife, Christine Deutsch, stated that she recalled that “Petitioner
returned home from his annual check-up in December 2016 and complained of pain in
his left shoulder.” Ex. 11 at ¶1. It was at Mr. Deutsch’s annual check-up on December 1,
2016 that he received the flu vaccination alleged to be causal. Ex. 1 at 4. The Federal
Circuit has held that it is appropriate to credit the lay testimony of a petitioner when said
testimony does not conflict with the medical records. Kirby, 997 F.3d at 1384. Petitioner’s
affidavit testimony provides consistent detail to the more general statements noted in the
medical records.
Although Mr. Deutsch waited just over 30 days to seek medical treatment for his
shoulder pain, his delay does not preclude a Table onset finding. Petitioner’s delay is not
substantial when compared to other SIRVA petitioners. See e.g. Winkle v. Sec’y of Health
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& Human Servs., No. 20-0485V, 2021 WL 2808993 (Fed. Cl. Spec. Mstr. 2021) (finding
onset after a nearly five month delay); Welch v. Sec’y of Health & Human Servs. No. 18-
0660V, 2020 WL 7483129 (Fed. Cl. Spec. Mstr. 2020) (finding onset after more than three
and one-half month delay). Petitioner explained that during the weeks after his flu
vaccination, he attempted to treat his pain with “aspirin, warm compresses, Naproxen,
and prescription medication” until he “was forced to seek treatment.” Id. at ¶5. He reported
his efforts to self-treat to NP Thompson at his initial evaluation on January 12, 2017, who
noted Mr. Deutsch’s “ineffective resolution of symptoms with OTC NSAID use, heat, or
ice applied to the area.” Ex. 1 at 13. He also reported his efforts to self-treat to Dr. Struble
on March 31, 2017. Ex. 3 at 8. It is not uncommon for SIRVA petitioners to attempt to
relieve symptoms at home prior to seeking medical treatment. I find Petitioner’s
explanation for his brief delay to be reasonable and credible. See, e.g., Stevens v. Sec'y
of Health & Human Servs, No. 90-221, 1990 WL 608693, *3 (Fed. Cl. Spec. Mstr. 1990)
(noting that clear, cogent, and consistent testimony can overcome missing or
contradictory medical records).
Accordingly, I find there is preponderant evidence to establish the onset of
Petitioner’s pain occurred within 48 hours of vaccination. Petitioner’s motion for a fact
ruling is GRANTED.
V. Scheduling Order
Respondent shall file, by Monday, October 25, 2021, a status report
indicating how he intends to proceed in this case in light of the record and this
fact ruling. The status report shall indicate whether he is willing to engage in tentative
discussions regarding settlement or proffer or remains opposed to negotiating at this
time.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-00527-1
Date issued/filed: 2022-01-06
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/01/2021) regarding 61 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-00527-UNJ Document 63 Filed 01/06/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0527V
UNPUBLISHED
MICHAEL JOSEPH DEUTSCH, Chief Special Master Corcoran
Petitioner, Filed: December 1, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On April 10, 2018, Michael Deutsch 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 he suffered shoulder pain and other symptoms that
were “caused in fact by the influenza vaccination” that he received on December 1, 2016.
Petition at 1-2. Petitioner further alleges that he suffered the residual effects of his injury
for more than six months. Petition at 2. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On November 29, 2021, Respondent filed his Amended Rule 4(c) report in which
he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule
4(c) Report at 1. Specifically, Respondent stated that “[i]n light of the Chief Special
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). 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-00527-UNJ Document 63 Filed 01/06/22 Page 2 of 2
Masters Findings of Fact, and medical records evidence submitted in this case, DICP has
concluded that petitioner suffered a SIRVA as defined by the Vaccine Injury Table”. Id. at
6. Respondent further agrees that “petitioner had no recent history of pain, inflammation,
or dysfunction of his left shoulder; the onset of pain occurred within 48 hours after receipt
of an intramuscular vaccination; the pain was limited to the shoulder in which the vaccine
was administered; and, no other condition or abnormality, such as brachial neuritis, has
been identified to explain petitioner’s left shoulder pain.” Id. Respondent further states
that petitioner suffered the residual effects of his condition for more than six months and
Respondent does not dispute that Petitioner has satisfied all legal prerequisites for
compensation under the Act.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_18-vv-00527-2
Date issued/filed: 2023-04-03
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 03/02/2023) regarding 76 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0527V
UNPUBLISHED
MICHAEL JOSEPH DEUTSCH, Chief Special Master Corcoran
Petitioner, Filed: March 2, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Injury (SIRVA)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On April 10, 2018, Michael Joseph Deutsch 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on
December 1, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
After I issued my Ruling on Entitlement finding Petitioner entitled to compensation,
the parties could not agree on the damages to be awarded, and therefore the matter was
scheduled for a “Motions Day” proceeding. For the reasons discussed below, and after
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-00527-UNJ Document 80 Filed 04/03/23 Page 2 of 9
hearing argument from the parties, I find that Petitioner is entitled to compensation in the
amount of $70,000.00 for his actual pain and suffering. The parties have agreed that
Petitioner is entitled to $255.00 for his out-of-pocket unreimbursable expenses.
I. Procedural History
Initially, Respondent contested entitlement in this case, arguing that Petitioner had
failed to prove by preponderant evidence that he received the flu vaccine in his left
shoulder, and that the onset of Petitioner’s shoulder pain did not meet the 48-hour window
after vaccination to establish a Table SIRVA claim. ECF No. 48. On September 24, 2021,
I issued a ruling finding in Petitioner’s favor on both points. Thereafter, Respondent was
ordered to file an amended Rule 4(c) Report based on my findings. Respondent then
conceded that Petitioner was entitled to damages. Respondent’s (Amended) Rule 4(c)
Report at 5. ECF No. 60. On December 1, 2021, I issued a ruling finding that Petitioner
was entitled to compensation. ECF No. 61.
The parties were subsequently unable to agree on an appropriate amount to award
Mr. Deutsch for his pain and suffering, and agreed to brief the issue. ECF No. 60. On
June 10, 2022, Petitioner filed her Brief in Support of Damages (“Mot.”), and Respondent
filed a Response on September 13, 2022 (“Opp.”). Petitioner filed a Reply on October 10,
2022 (“Reply”). ECF Nos. 70, 72, 73. I then heard from both parties during a Motions’ Day
Damages hearing held on February 24, 2023.
II. Relevant Medical History
A complete recitation of the facts can be found in the petition, the parties’
respective pre-hearing filings, in Respondent’s Rule 4(c) Reports, and in the Findings of
Fact issued on September 24, 2021. In brief summary, Mr. Deutsch’s past medical history
was significant for glaucoma, gout, boutonniere, deformity of the finger, spider veins, and
hyperlipidemia. Petitioner’s Exhibit (“Ex.”) 1 at 6. There is no history of shoulder
complaints noted. He was 63 years old when he received a flu vaccine in his left3 shoulder
on December 1, 2016, by Nurse Practitioner Thompson (“NP Thompson”) at the office of
his primary care physician (“PCP”). Ex. 1 at 1-9.
In his affidavit, Mr. Deutsch recalled that after receiving the vaccine, he “was
surprised at the pain after [the nurse] left the room, much more than a normal shot. I
immediately thought did she hit a nerve or bone? Not wanting to sound overly difficult, I
3 The vaccination record states that Petitioner received the flu vaccine in his right deltoid. Ex. 1 at 9.
However, I issued a fact ruling on September 24, 2021, finding that the vaccination record contained an
error, and that Petitioner actually received the vaccination at issue in his left deltoid. ECF No. 56.
2

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 3 of 9
suppressed that thought and convinced myself that surely the pain would subside in a
few hours. It did not.” Ex. 10 at 1, ¶2.
On January 5, 2017, 35 days after vaccination, Mr. Deutsch emailed NP Thompson
and reported that “[s]ince receiving [the] flu shot I continued to have pain around the area
of where the shot was given.” Ex. 2 at 2. One week later, on January 12, 2017, Mr.
Deutsch presented in follow-up to NP Thompson with concerns of ongoing left shoulder
pain after receiving the flu shot. Ex. 1 at 11-18. The complaint of “left shoulder pain” is
followed by the notation of “[f]lu shot received 12/1/16 in patient’s left arm.” Id. at 13. The
notes from the visit reflect that “[s]ince that time he [has] experienced pain in his left
shoulder.” Id. Petitioner reported “increased pain with certain range of motion [“ROM”]
activities.” Id.
On March 31, 2017, approximately 11 weeks after the last visit, Mr. Deutsch was
seen for left shoulder pain by Steve Struble, M.D., at Total Joint Care. Ex. 3 at 8-10. Mr.
Deutsch exhibited reduced range of motion of the left shoulder and yielded a positive sign
on the Hawkin’s shoulder impingement test. Id. at 9. Mr. Deutsch was assessed with
rotator cuff syndrome. Id. An x-ray of the left shoulder performed on this date was normal.
Id. He was given an intra-articular shoulder steroid injection. Id. Dr. Struble’s notes stated
that “[w]e discussed the cause of bursitis, the natural course, [and] what exacerbates and
relieves the condition.” Id.
Mr. Deutsch returned to Dr. Struble three and a half months later, on July 13, 2017,
with continued complaints of left shoulder pain. Ex. 3 at 5-7. He reported that the “[s]hot
was great for 3 months.” Id. at 5. Dr. Struble diagnosed rotator cuff syndrome and most
likely rotator cuff bursitis. Id. The notes stated that “[we] discussed the cause of bursitis,
the natural course, [and] what exacerbates and relieves the condition.” Mr. Deutsch
received a second intra-articular steroid injection. Id. at 7.
Approximately seven-and-one-half months later, on February 27, 2018, Mr.
Deutsch returned in follow-up to Dr. Struble. Ex. 3 at 2-4. The diagnosis remained “rotator
cuff bursitis” and Mr. Deutsch received his third steroid injection. Id. The medical records
reflect “MRI if not improved.” Id. at 4.
Two years and five months later, on August 18, 2020, Mr. Deutsch returned to Dr.
Struble with complaints of continued left shoulder pain. Ex. 19 at 5. He reported that the
pain was worse with activities and at night. Id. Mr. Deutsch stated that he had tried
NSAIDs with no relief. Id. He had positive impingement signs and continued to exhibit
reduced range of motion in his left shoulder. Id. Dr. Struble opined that Mr. Deutsch had
bursitis and administered a fourth cortisone injection. Id. at 7.
3

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 4 of 9
On August 21, 2020, Mr. Deutsch presented to Select Physical Therapy for an
initial physical therapy evaluation. Ex. 20 at 4. He complained that in 2017 he was given
a flu shot and had pain in the left shoulder since then. Id. Mr. Deutsch underwent a total
of fifteen (15) physical therapy visits through October 9, 2020. Id. at 4-52.
Mr. Deutsch’s affidavit described the extent of his injury. Ex. 21. During his initial
course of treatment, Mr. Deutsch described how his pain levels varied depending upon
the amount of ongoing activity and the timing of the prescribed cortisone shots received.
He stated that each of the cortisone shots were effective for about two months. Ex. 21 at
1. Mr. Deutsch averred that he stopped treating the injury in early 2018 because he was
not making progress. Instead, he learned to use his right arm almost exclusively, took
excessive Naproxen and performed a home exercise program. Id. When he received
Medicare in 2020, Mr. Deutsch returned to his doctor and received another cortisone
injection and was prescribed a course of physical therapy. Id. at 2. He stated that the
injury affected his life in various ways including his employment, everyday tasks, and
recreational activities. Id.
III. The Parties’ Arguments
a. Petitioner
Mr. Deutsch seeks an award of $90,000.00 as compensation for his actual pain
and suffering. Mot. at 1. In support, Petitioner states that he suffered his shoulder
symptoms for nearly four years, albeit with a two-and-a-half-year gap in treatment. Id. at
6. He underwent four cortisone injections and 15 physical therapy sessions. Mr. Deutsch
noted that his physical therapy began more than three and a half years after his initial
injury. And although he is not making a claim for lost wages, Mr. Deutsch stated that his
career plans were disrupted by his injury. Id. at 7. He stated that at the time of his vaccine
in 2016, he was transitioning to a career as an independent catastrophic insurance
adjuster. Id. Because of his injury, he was unable to perform the physical job duties
required for this profession and ultimately let his license lapse and suffered lost income
(although no lost wages demand was advanced ultimately). Id.; Ex. 21.
During the hearing and in his brief, Petitioner discussed prior SIRVA cases4 that
all involved injured claimants with similar mild to moderate non-surgical shoulder injuries,
4 The specific cases cited by Petitioner are Accetta v. Sec’y of Health & Human Servs., No. 17-1731, (Fed.
Cl. Spec. Mstr. March 31, 2021), Hartman v. Sec’y of Health & Human Servs., No. 19-1106V, (Fed. Cl.
Spec. Mstr. Jan. 14, 2022); Pruett v. Sec’y of Health & Human Servs., No. 17-561V, 2019 WL 3297083
(Fed. Cl. Spec. Mstr. Apr.30, 2019); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011, 2018 WL
1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2015).
4

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 5 of 9
cortisone injections, physical therapy, and at least one of which had a similar gap in
treatment. Focusing mainly on the Accetta case, Petitioner argued that the Accetta
petitioner initially underwent a course of treatment for a six-month period that consisted
of physical therapy, an MRI, and an orthopedic consultation. Mot. at 5-6; Accetta v. Sec’y
of Health & Human Servs., No. 17-1731, (Fed. Cl. Spec. Mstr. March 31, 2021). After a
three-and-a-half-year gap in treatment, that petitioner returned to her orthopedist and
underwent a repeat MRI. Id. Surgery was recommended, although the petitioner declined,
choosing instead to continue with a home exercise program. Id. Following another year
gap in treatment, the Accetta petitioner continued to complain of left shoulder pain and
surgery was again recommended. Id. The petitioner was awarded $95,000.00 for her pain
and suffering. Mr. Deutsch acknowledged that he did not receive an MRI and surgery was
not recommended. Thus, Mr. Deutsch argued that a discounted award of $90,000.00 was
reasonable and appropriate given that his circumstances were comparable. Mot. at 5-7.
b. Respondent
Respondent maintains that a pain and suffering award of $57,500.00 is appropriate
because of the overall mild course of Mr. Deutsch’s injury. Opp. at 12. This case involved
no surgical intervention, the records document a very mild shoulder discomfort for
approximately four years after vaccination, and Petitioner only required conservative
treatment. Id. at 7. Respondent also noted the various gaps in treatment to highlight the
milder nature of Petitioner’s SIRVA injury. Id. at 7-8. Respondent argues that the “gaps in
petitioner’s medical records in between actively treating his shoulder pain suggest that
petitioner’s pain was not persistent and ongoing in a way that it interfered with petitioner’s
life.” Id. at 8.
Respondent cites to Clendaniel v. Sec’y of Health & Human Servs., No. 20-213V,
2021 WL 4258875, at *2 (Fed. Cl. Spec. Mstr. Aug. 18, 2021), as a comparable case.
Opp. at 11. That petitioner was 53 years old, sought treatment less than one month after
vaccination, reported 8/10 pain and limited range of motion, received two cortisone
injections, underwent an MRI, two arthrocentesis procedures, and sought treatment for
nearly 14 months. Id. Respondent argues that the petitioner in Clendaniel in fact had a
much more severe course of SIRVA, reporting much higher levels of pain than Mr.
Deutsch, but received only $60,000.00 in pain and suffering. Id. Thus, Respondent
maintains that a lesser sum in this case is fair. Id.
At the hearing and in his brief, Respondent distinguished the cases cited by
Petitioner, maintaining that those claimants sought more care, had recommendations for
surgery, and underwent MRIs. Id. at 9-11. Respondent argued that because of those
5

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 6 of 9
distinguishing factors, Mr. Deutsch’s award should be significantly lower than the SIRVA
cases cited by Petitioner. Id. at 10-12.
IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include an award “[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). 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).
6

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 7 of 9
V. Appropriate Compensation in this SIRVA Case
a. Awareness of Suffering
Neither party disputes that that Mr. Deutsch had full awareness of his suffering and
I find that fact is supported by the record evidence.
b. Severity and Duration of Pain and Suffering
Mr. Deutsch’s medical records and affidavits provide a description of the pain he
experienced throughout the duration of his injury. As noted, Mr. Deutsch’s first complaint
of shoulder pain to his primary care provider’s office occurred fairly quickly, just 35 days
after vaccination, where he reported worsening pain in his left shoulder since receiving
the flu vaccination. Ex. 2 at 2. After seeing his PCP and attempting to treat the pain with
conservative treatment, Mr. Deutsch received his first steroid injection. The initial injection
worked to relieve his pain for nearly three months. However, the pain returned and when
it did, Petitioner returned to his medical provider for further treatment. In all, Mr. Deutsch
received a total of four cortisone injections, all providing varying degrees of relief.
However, the longest gap in treatment occurred after Mr. Deutsch received his
third cortisone injection in February 2018 – he was not seen again until August 2020. In
his affidavit, Mr. Deutsch explained why he stopped seeking treatment after February
2018:
because it didn’t seem like I was making any progress with formal treatment.
I became proficient at limiting use and pain of my arm by using almost
exclusively my right arm… I regularly used Naproxen in higher than
recommended dosage to alleviate pain. I found Naproxen quite effective. I
continued a regimen of rotator cuff exercises, as prescribed by Dr. Struble,
almost every other day. The exercises did not have any dramatic
improvement…
I decided to return for additional treatment in August 2020. The home
exercise program was not providing cumulative improvement. Pain
frequency and degree had increased. I now had comprehensive Medicare
insurance. I clearly wanted and need another cortisone shot. I wanted to be
treated by a medical professional therapist in hopes to make progress. This
expensive treatment was not available to me previously as I was not
working and had only a form of catastrophic insurance through the
Affordable Care Act and would not cover any of these treatments.
Ex. 21 at 1-2, ¶¶ 6-7.
7

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 8 of 9
In August 2020, when Mr. Deutsch did return for treatment, he continued to exhibit
positive impingement signs and reduced range of motion of the left shoulder. Ex. 19 at 5.
He received a fourth cortisone injection at this time. Id. at 7. Also in August 2020, Mr.
Deutsch presented for an initial physical therapy evaluation. Ex. 20 at 4. He underwent a
total of 15 physical therapy visits through October 9, 2020. Id. at 4-52. No further
treatment records have been filed, thus, clarifying the total treatment time, including all
gaps, to just under four years. Thus, the most equitable method in this situation is to
compare the facts of this case to other similarly situated cases.
Although both parties cited to prior SIRVA cases in support of their proposed
awards that were reasonably comparable, I believe a good starting point is Respondent’s
preferred comparable - Clendaniel. That petitioner had a course of treatment similar to
Mr. Deutsch’s - initial treatment a little less than one month after vaccination, one MRI,
19 total physical therapy sessions, two cortisone injections (with wo arthrocentesis
procedures), gaps in treatment, and a cessation of treatment approximately fourteen
months after vaccination. Id. at 1-4. The material differences between that treatment
course and Mr. Deutsch’s were that the Clendaniel petitioner reported higher levels of
pain, underwent an MRI and two arthrocentesis procedures. Overall, Mr. Deutsch had a
somewhat experience, but I will award a slightly greater amount to account for Mr.
Deutsch’s longer overall treatment course.
I also found the case cited by Petitioner, Accetta v. Sec’y of Health & Human
Servs., No. 17-1731, (Fed. Cl. Spec. Mstr. March 31, 2021), to be a good comparable
case which demonstrated that gaps in treatment do not necessarily indicate a lesser injury
necessitating a lesser award. However, Accetta bears several notable distinguishing
factors. The Accetta petitioner underwent an MRI which showed a tear in that petitioner’s
supraspinatus tendon that prompted a recommendation for surgical repair. In Mr.
Deutsch’s case, by contrast, an MRI was recommended if he did not improve, but he
never did receive one (suggesting he did not see the need to press the issue with
treaters), and no surgery was ever recommended. Thus, the award in the Accetta case
was reasonably higher than what is appropriate here.
In sum, Mr. Deutsch’s SIRVA injury is on the more moderate side, due in large part
to the significant length of the treatment gap of nearly two and a half years. This large
treatment gap is difficult to ignore, and supports the conclusion that the injury was not so
severe that Mr. Deutsch felt the need to return to his physician on a more regular or urgent
basis. However, Petitioner’s overall treatment course was still lengthy, approximately four
years, and Respondent’s proposed award is slightly low. The smaller gaps in treatment
do not necessarily warrant a lesser award as Respondent has argued. The cortisone
injections provided relief as was intended, and a petitioner should not be penalized
because he was measured in his treatment. On the other hand, in reviewing the
8

Case 1:18-vv-00527-UNJ Document 80 Filed 04/03/23 Page 9 of 9
comparable cases cited by Petitioner, Mr. Deutsch’s treatment was not extensive, and his
gaps in treatment indicate that his injury was not so debilitating that it necessitated
constant treatment. The medical records cannot corroborate the severe level of pain and
suffering Mr. Deutsch attested to in his affidavit. Thus, some discount in the award
proposed by Petitioner is warranted.
Under such circumstances, 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 $70,000.00 in compensation for past pain and suffering is reasonable and
appropriate in this case.
c. Other Expenses
The parties agree that Petitioner has established the amounts sought for out-of-
pocket medical expenses for a total of $255.00. Opp. at 2.
CONCLUSION
In light of all of the above, the I award Petitioner a lump sum payment of
$70,255.000 (consisting of $70,000.00 for his actual pain and suffering, $255.00 for
out-of-pocket medical expenses) in the form of a check payable to Petitioner,
Michael Joseph Deutsch. 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.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9