VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00589
Package ID: USCOURTS-cofc-1_18-vv-00589
Petitioner: Patricia Merson
Filed: 2018-04-25
Decided: 2022-10-03
Vaccine: influenza
Vaccination date: 2016-11-15
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 45257

AI-assisted case summary:
On April 25, 2018, Patricia Merson filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a left shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine received on November 15, 2016. Ms. Merson, who was 67 years old at the time of vaccination, received the vaccine in her left shoulder at a Walgreens Pharmacy. She stated that prior to vaccination, she was generally healthy and did not have a primary care physician or specialists. Her medical records indicated that her shoulder pain began within 48 hours of vaccination, satisfying a key requirement for a SIRVA claim under the Vaccine Injury Table. However, her first medical record noting shoulder pain was from a visit to her psychiatrist, Dr. Allan Gold, on March 10, 2017, nearly four months post-vaccination, where she reported pain that began "a month or so ago" with sudden reaching. On April 10, 2017, approximately five months post-vaccination, she presented to Mary Hartman, ARNP-F, at True Care, complaining of left arm pain, reduced range of motion, numbness, and tingling that started after her flu shot. She believed she had nerve damage from the shot. An MRI of her left shoulder on May 8, 2017, revealed several abnormalities including a tear of the infraspinatus tendon, tendinosis of the supraspinatus and subscapularis tendons, and osteoarthritis. Dr. Charles Simmons, who evaluated her on April 18, 2017, assessed her with adhesive capsulitis of the shoulder and paresthesia of the hand, and recommended a steroid injection, which Ms. Merson did not receive. Ms. Merson averred in her affidavit that the pain began immediately after vaccination, but she delayed seeking treatment because she thought it would improve. Her husband, Richard Merson, and daughter, Dawn Merson, corroborated that she complained of pain immediately after the vaccination and that she delayed seeking medical attention until she experienced intense pain while reaching for a railing. Respondent argued that the record was insufficient to establish that the onset of symptoms occurred within 48 hours of vaccination and that alternative causes might explain her symptoms. Chief Special Master Brian H. Corcoran found that the preponderance of the evidence demonstrated that Petitioner met the criteria for a Table SIRVA, including the onset of pain within 48 hours of vaccination, lack of prior shoulder issues, pain and reduced range of motion limited to the left shoulder, and no other condition explaining the symptoms. He awarded Ms. Merson $45,000.00 for pain and suffering and $257.28 for unreimbursable medical expenses, totaling $45,257.28. The decision was issued on October 3, 2022.

Theory of causation field:
Patricia Merson, age 67, received an influenza vaccine on November 15, 2016. She alleged a left shoulder injury related to vaccine administration (SIRVA). The Special Master found that Petitioner met the criteria for a Table SIRVA, including onset of pain within 48 hours of vaccination, which was established by preponderant evidence including Petitioner's testimony and that of her family, despite initial medical records being vague or delayed. The medical records showed pain and reduced range of motion limited to the left shoulder, with no prior history of shoulder issues or other conditions explaining the symptoms. The Special Master awarded $45,000.00 for pain and suffering and $257.28 for unreimbursable medical expenses, totaling $45,257.28. The decision was issued by Chief Special Master Brian H. Corcoran on October 3, 2022. Petitioner was represented by Bridget Candace McCullough of Muller Brazil, LLP, and Respondent was represented by Ronalda Elnetta Kosh of the U.S. Department of Justice.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_18-vv-00589-0
Date issued/filed: 2020-04-08
Pages: 3
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/09/2020) regarding 46 Findings of Fact & Conclusions of Law Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00589-UNJ Document 51 Filed 04/08/20 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0589V
UNPUBLISHED
Filed: March 9, 2020
PATRICIA MERSON,
Chief Special Master Brian Corcoran
Petitioner,
v. Special Processing Unit (SPU); Fact
Hearing; Findings of Fact; Onset;
SECRETARY OF HEALTH Influenza (Flu) Vaccine; Shoulder
AND HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
FACT RULING1
On April 25, 2018, Patricia Merson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine she received on
November 15, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters. For the reasons discussed below, I find that the onset of
Ms. Merson’s left shoulder SIRVA was within 48 hours of her November 15, 2016 flu
vaccination.
1 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. 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).
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-00589-UNJ Document 51 Filed 04/08/20 Page 2 of 3
I. Procedural History Prior to Hearing
On April 25, 2018, Ms. Merson filed her petition and medical records marked as
exhibits 1-4. (ECF No. 1.) On May 2, 2018, she filed two witness affidavits (exhibits 5-6)
with a Statement of Completion. (ECF Nos. 6-7.)
On March 26, 2019, Respondent filed a status report stating that he was not
interested in pursuing settlement discussions and intended to file a Rule 4(c) report. (ECF
No. 25).
On June 21, 2019, Respondent filed his Rule 4(c) Report. (ECF No. 27.)
Respondent recommended against awarding compensation to Petitioner in this case,
arguing, inter alia, that the record is insufficient to substantiate that the onset of
Petitioner’s left shoulder symptoms began within 48 hours of vaccination. Id. at 7.
Respondent argued that Petitioner first reported her shoulder symptomatology to a
medical professional nearly five months after vaccination. Id. citing Pet. Ex. 2 at 1.
Respondent argued that “[a]lthough the medical records note that petitioner’s pain began
‘after’ vaccination, those reports are vague, and nothing more than a record of petitioner’s
oral statements. No doctor actually opined that petitioner’s November 15, 2016 flu
vaccination was the cause of the alleged injury.” Id. at 7-8. Respondent further argued
that I cannot find that a vaccine-related injury occurred solely “based on the claims of a
petitioner … petitioner’s claims must be substantiated by medical records, or by a credible
expert medical opinion.” Therefore, Respondent states that the medical records fail to
establish that Petitioner’s symptoms began within 48 hours after vaccination. Id.; 42
U.S.C. § 300aa-13(a)(1).
On September 6, 2019, Petitioner filed a supplemental affidavit where she
explained that she did not have a primary care provider in the three years prior to
vaccination. Pet. Ex. 9. The affidavit also describes in detail how the vaccine injury has
affected Petitioner’s quality of life. Id. The affidavit did not provide any additional details
as to why Petitioner waited nearly five months to be seen for her shoulder injury.
On October 21, 2019, a fact hearing was scheduled to decide the issue of onset.
(ECF No. 26.) The parties filed witness lists in January 2020, and a fact hearing was held
on February 11, 2020.
II. Fact Hearing
Petitioner and her daughter testified at the hearing. At the conclusion of the
proceeding, I issued a ruling from the bench finding that the submitted evidence (including
the medical records, affidavits, and the credible witness testimony) preponderates in favor
of Petitioner. See Hearing Transcript (“Tr.”), filed February 28, 2020 (ECF No. 45), at 98-
104. Additional citations to the record and the underlying relevant evidence is set forth in
the hearing transcript. Id. Thus, I find that the onset of Petitioner’s left shoulder pain was
within 48 hours of her November 15, 2016 flu vaccination.
2

Case 1:18-vv-00589-UNJ Document 51 Filed 04/08/20 Page 3 of 3
III. Conclusion
In light of all of the above, and in view of the submitted evidence, including
the medical records, credible witness testimony, and findings of fact, I find that the
onset of Petitioner’s left shoulder pain was within 48 hours of her November 15,
2016 flu vaccination.
The deadlines set forth in the February 11, 2020 Scheduling Order remain in
effect.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00589-1
Date issued/filed: 2022-10-03
Pages: 15
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/16/2022) regarding 66 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0589V
UNPUBLISHED
PATRICIA MERSON, Chief Special Master Corcoran
Petitioner, Filed: August 16, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Onset; Influenza (Flu) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On April 25, 2018, Patricia Merson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine she received on
November 15, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
1 Because this unpublished Ruling and 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 ruling and 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-00589-UNJ Document 70 Filed 10/03/22 Page 2 of 15
For the reasons described below I find that Petitioner is entitled to compensation,
and I award damages in the amount $45,000.00, representing compensation for her
actual pain and suffering, plus $257.28 for her unreimbursable medical expenses for a
total of $45,257.28.
I. Relevant Procedural History
On April 25, 2018, Ms. Merson filed her petition and medical records marked as
exhibits 1-4. ECF No. 1. The next month, she filed two witness affidavits (exhibits 5-6)
with a Statement of Completion. ECF Nos. 6-7. The parties thereafter made some efforts
at settlement, but determined by March 2019 that this would not be possible. ECF No. 25.
On June 21, 2019, Respondent filed his Rule 4(c) Report. ECF No. 27.
Respondent recommended against awarding compensation to Petitioner in this case,
arguing, inter alia, that the record was insufficient to substantiate that the onset of
Petitioner’s left shoulder symptoms began within 48 hours of vaccination. Id. at 7.
Respondent argued that Petitioner first reported her shoulder symptomatology to a
medical professional nearly five months after vaccination. Id. citing Ex. 2 at 1. Thus,
“[a]lthough the medical records note that petitioner’s pain began ‘after’ vaccination, those
reports are vague, and nothing more than a record of petitioner’s oral statements. No
doctor actually opined that petitioner’s November 15, 2016 flu vaccination was the cause
of the alleged injury.” Id. at 7-8.
On February 11, 2020, I held a fact hearing in this matter, finding that there was
preponderant evidence that Petitioner’s left shoulder pain began within 48 hours of
vaccination. ECF No. 46. Thereafter, in light of my ruling, I strongly encouraged the parties
to consider informal resolution of this claim. But the parties (again) were unable to do so,
leading me to establish a schedule for briefing the issue of entitlement and damages.
ECF No. 61. The parties have now filed their respective briefs, and the case is ready for
resolution in full.
II. Factual Evidence
A. Medical records
Ms. Merson (age 67) received a flu vaccine in her left shoulder on November 15,
2016, at Walgreens Pharmacy located in Rosedale, Maryland. Ex. 1. Petitioner has stated
2

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 3 of 15
that prior to vaccination, she was not followed by a primary care physician or any
specialists, as she was generally healthy.3 Ex. 9 at 1.
On March 10, 2017 (and thus nearly four months post-vaccination), Ms. Merson
presented to her psychiatrist, Dr. Allan Gold, for a routine visit. Ex. 10 at 3-4. She reported
“a shooting burning pain in her left arm that began with the sudden reaching to catch a
falling dog a month or so ago, it recurs with such reaching, lasts for seconds . . . She
sleeps hugging a pillow on that side . . . She is a[]verse to meds, surgery, shots . . .” Id.
at 4. Dr. Gold noted that Petitioner’s left shoulder issue may be “brachial neuritis . . . vs.
cervical arthritis of disc compression.” Id.
A month later – and now five months after vaccination - on April 10, 2017, Ms.
Merson presented to Mary Hartman, ARNP-F, at True Care for a Medicare Wellness
exam and a complaint of left arm pain.4 Ex. 2 at 1. The notes from this visit state that
Petitioner was “trying to find out what is wrong with [her] arm” and that she thinks she has
“nerve damage” from the flu shot.” Id. Ms. Merson reported pain in the back of the
shoulder and upper arm, some reduced range of motion, numbness, and tingling that
started after she got her flu shot in November. Id. Ibuprofen was sometimes effective for
the pain, but she was not driving because of her arm.5 Id. Upon examination of her left
shoulder, Ms. Merson exhibited a limited range of motion (“ROM”) when lifting her arm
above her head. Id. She was referred for a nerve conduction study for “burning pain left
shoulder radiating to hand.”6 Id. at 4.
On April 18, 2017, Ms. Merson presented to Dr. Charles Simmons at Smart Pain
Management for an initial evaluation for complaints of left arm numbness at a pain level
of “2/2.” Ex. 3 at 4. Petitioner reported that her “pain started shortly after a flu shot into
her left shoulder.” Id. She denied weakness. Id. The assessment stated, “pain radiating
to left shoulder, left shoulder pain, adhesive capsulitis of shoulder, and paresthesia of
hand.” Id. Dr. Simmons ordered an MRI and recommended a left shoulder steroid
injection. Id. at 5.
3 Petitioner’s medical records do indicate, however, that her prior medical history consists of anxiety with
panic attacks, depression, elevated blood pressure, hyperlipidemia, pre-diabetes, anemia, kidney stones
and renal insufficiency with no history of pre-vaccination shoulder problems. Petitioner has filed redacted
copies of notes from visits with her psychiatrist, Dr. Gold. Ex. 10.
4 As a result of Petitioner’s complaint of left arm pain, the wellness exam was not performed. Id. at 2-3.
5 Petitioner stated that she is right handed.
6 Petitioner never underwent the EMG study.
3

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 4 of 15
On May 8, 2017, Ms. Merson underwent an MRI of her left shoulder at Advance
Radiology for complaints of chronic pain syndrome, pain, and decreased ROM in the left
shoulder for the past six months. Ex. 3 at 6. The MRI showed (1) a small bursal-sided
near full-thickness tear of the distal anterior infraspinatus tendon, (2) mild interstitial
tearing and tendinosis and undersurface fraying of the of distal supraspinatus tendon, (3)
mild tendinosis of the subscapularis tendon, (4) tendinosis of the intra-articular long head
of the biceps tendon extending to the anchor, (5) trace subacromial subdeltoid bursitis,
(6) mild AC joint osteoarthritis, and (7) mild glenohumeral joint osteoarthritis, including
degenerative fraying or degenerative tearing of the superior labrum. Id. at 6-7.
On May 23, 2017, Ms. Merson returned to Dr. Simmons for a follow-up of “left arm
numbness and shoulder pain” and to review the results of the MRI. Ex. 2 at 2. Upon review
of the MRI, Dr. Simmons’s assessment noted chronic pain syndrome, degenerative joint
disease of the left shoulder region, and full thickness rotator cuff tear. Id. at 3. Dr.
Simmons referred Ms. Merson to a physical therapist and asked her if she would consider
steroid injections in the near future. Id. Petitioner did not attend any physical therapy
sessions and did not receive any steroid injections. Ex. 4. She elected to proceed with a
home exercise program, heating pads, and Motrin. Id.
The next set of records are dated one year later, on May 16, 2018, where Ms.
Merson presented to Dr. Robert Greenwald at the emergency room at MedStar Franklin
Square Hospital Center for complaints of depression, fever, coughing, and abdominal
muscle pain from coughing for six days. Ex. 7 at 12. She was diagnosed with cough,
fever, renal insufficiency, and a urinary tract infection. Id. at 14, 35. Upon physical
examination, Ms. Merson was able to move all of her extremities equally, and she denied
musculoskeletal symptoms. Id. at 6, 13.
B. Affidavits
In her affidavit, Ms. Merson averred that immediately after vaccination she began
to experience pain in her left arm and shoulder. Ex. 4 at 1. She stated that she “kept
thinking that the pain in my shoulder would improve” which is why she delayed seeking
treatment. Id. She finally scheduled an appointment at True Care Medical Group when
she reached for a railing as she was going down some steps and almost fell. Id. Dr.
Simmons discussed managing her pain with steroid injections and narcotic medication,
both of which she was uncomfortable pursuing. Id. She elected to treat her shoulder at
home with exercises, heating pads, ice packs, and Motrin. Id. Ms. Merson stated that she
has suffered the residual effects or complications of her alleged SIRVA injury for more
than six months and “still experiences pain to this day.” Id.
4

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 5 of 15
Petitioner’s husband, Richard Merson, averred in his affidavit that “[i]mmediately
after receiving the flu vaccine, my wife began to complain of pain in her left shoulder.”
Ex. 5 at 1. Mr. Merson explained that he and his daughter suggested that Petitioner see
a doctor for her shoulder injury. He stated that
[s]he resisted at first as she does not have a regular primary care provider
and has fortunately been very healthy. However, as she was walking down
the stairs in our home one day, she reached for the railing for balance. The
pain in her shoulder was so intense that she almost fell down the stairs.
Id. at 1-2. Mr. Merson further stated that “[f]inally, after months of pain and suffering, she
made an appointment. In April of 2017, she was seen by Dr. Simmons at Pain
Management …” Id. at 2.
Ms. Dawn Merson (“Dawn”), Petitioner’s daughter, stated in her affidavit that she
was present with Petitioner when Petitioner received the flu vaccine on November 15,
2015, at Walgreens Pharmacy. Ex. 6 at 1. Dawn recalled that her mother complained
about how painful the shot was after the pharmacist administered the vaccine. Id. Dawn
stated that the pharmacist “told my mother it was because her arm was way bony.” Id.
She stated that as soon as they arrived home that day, her mother immediately took
Motrin. Id. Dawn explained that she lives at home with her parents and over the next few
months, her mother continued to complain of pain in her shoulder. Id. Dawn stated that
she and her father finally convinced Petitioner to see a doctor. Dawn stated
[m]y mother is not quick to seek medical treatment and is generally very
healthy… My mother finally decided that she would in fact make an
appointment after she almost fell down the stairs in our home. That day,
when my mother grabbed the railing to support herself going down the
steps, she experienced what she described as a searing hot pain in her
shoulder that burned all the way into her hand. She sat on the steps and
cried for a long time.
Id. at 2.
III. Parties’ Arguments
Petitioner requests that I issue a ruling finding that she is entitled to compensation
in this case. Mot. at 1. She avers that she meets the requirements for a SIRVA as
described in the Vaccine Injury Table, and thus is entitled to a presumption of causation.
Mot. at 6-8. In the alternative, Petitioner argues that if a Table injury is not found, she has
satisfied the three-prong test for establishing causation as set forth in Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Respondent argues that
5

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 6 of 15
Petitioner has failed to show she suffered a Table claim because her pain and reduced
range of motion are not limited to her left shoulder and that there may be an alternate
cause. Opp. at 9-13. Respondent also argues that Petitioner has failed to establish
causation under a causation-in-fact analysis and that she has not shown that she suffered
from a vaccine-related injury for a minimum of six months. Opp. at 13.
IV. Fact Findings and Ruling on Entitlement
A fact hearing was held in Washington, D.C., on February 11, 2020. Petitioner and
her daughter, Dawn Merson, were the sole witnesses, and they both appeared in-person.
At the conclusion of the hearing, I ruled that the onset of Petitioner’s shoulder pain
occurred within 48 hours of vaccination. Thus, that element of a SIRVA Table claim has
already been successfully established by the Petitioner.
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,7 a
petitioner must establish that he 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). 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;
7 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).
6

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 7 of 15
(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).
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). “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.” Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381 at 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. 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 &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
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
7

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 8 of 15
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.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. 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).
A. Factual Findings Regarding a 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 (in
addition to the onset element, which as noted above has already been found to be
satisfied).
1. Petitioner has no Prior Left Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that 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 the medical record demonstrates a lack of history of
pain, inflammation, or dysfunction of Petitioner’s left shoulder that would explain her
symptoms. Thus, the first criterion is met.
2. Petitioner’s Pain and Limited Range of Motion was Limited to her
Left Shoulder
The specific language of a SIRVA injury contained in the Qualifications and Aids
to Interpretation (“QAI”) of the Vaccine Injury Table is that “pain and reduced range of
motion are limited to the shoulder in which the intramuscular vaccine was administered.”
Looking closely at the medical records and Ms. Merson’s complaints, her complaints of
pain and reduced range of motion all relate to her left shoulder and upper arm, not her
hand. She was diagnosed with adhesive capsulitis or “frozen shoulder”, a condition
affecting the joint capsule of the shoulder and the peripheral articular cartilage of the
shoulder. Ex. 3 at 4; Dorland’s Illustrated Medical Dictionary E-Book. London: Saunders,
8

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 9 of 15
2011. The MRI of Petitioner’s left shoulder confirmed shoulder abnormalities including a
small bursal-sided near full-thickness tear, tendinosis, and subdeltoid bursitis, all
conditions that affect the shoulder musculature. Ex. 3 at 6-7. The recommended treatment
for Ms. Merson’s symptoms were treatments prescribed for the shoulder only, such as a
left shoulder steroid injection and physical therapy. Ex. 3 at 5.
The complaints affecting Ms. Merson’s hand and the lower part of her left arm
consisted of complaints of numbness and paresthesia, not pain and not reduced range of
motion. See e.g., Ex. 3 at 4 (“1. Pain radiating to left shoulder… 2. Shoulder pain – left …
Adhesive Capsulitis of shoulder … Paresthesia of hand…”). Respondent also cites to Mr.
Merson’s affidavit quoting that his wife “constantly complained of pain in her arm and
shoulder along with numbness in her hand.” Opp. at 10. The one reference of pain
radiating to the hand, written by Nurse Hartman, stated that there was “burning pain, left
shoulder radiating down to hand”, Ex. 2 at 4, inferring that the pain originated in the
shoulder. During her testimony, Ms. Merson also stated that the pain began in her
shoulder and led to numbness in her hand. Transcript (“Tr.”) at 16, 37. There are no other
references to pain in the hand contained within the entire record.
There is one reference in the record to “pain the back of the shoulder” during the
April 10, 2017 visit, nearly five months after vaccination. The QAI for SIRVA states that
“SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g.
tendons, ligaments, bursae, etc.).” The back of the shoulder is part of the shoulder
musculature and thus, Ms. Merson’s complaint of pain does not fall outside the Table
definition for SIRVA.
Accordingly, preponderant evidence establishes that Petitioner’s pain and limited
range of motion was limited to her left shoulder.
3. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain Petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent argues that Petitioner’s “radiating symptoms that extend
down her arm may suggest an alternative cause” such as a nerve injury. Opp. at 10-11.
Respondent also argues that Petitioner’s MRI findings “could also explain her symptoms.”
Opp. at 11. Respondent states that Ms. Merson had primary arthritis and a complete
rotator cuff tear, neither of which could be caused by vaccination. Id. However, all of the
arguments presented by Respondent are based on speculation and not any definitive
diagnoses contained within the record. It is not Petitioner’s burden to rule out all the
possible alternative causes that Respondent may raise. The SIRVA criterion states that
9

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 10 of 15
a condition or abnormality must be present that would explain her symptoms (emphasis
added). There is no evidence in the record confirming any nerve injury and there is no
evidence that any of the conditions found on the MRI were present before vaccination
that would lead Petitioner’s shoulder symptoms after vaccination. Petitioner had no left
shoulder symptomology prior to vaccination; a fact that Respondent does not dispute.
Thus, I find there is no other condition or abnormality present that would explain
Petitioner’s symptoms.
B. 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). The overall record
contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in her left
shoulder on November 15, 2016. Ex. 1 at 1; 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 3; Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
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
the residual effects of his or her left shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
Respondent states that it is unclear whether Petitioner had vaccine-related pain that
persisted for six months. Opp. at 15. Respondent argues that “[w]hile the special master
concluded that petitioner did develop some pain within 48 hours of vaccination, he did not
conclude that all of petitioner’s symptoms are vaccine related.” Opp. at 15. Therefore, “it
is not clear if she also had vaccine-related pain that persisted for at least six months.” Id.
My prior ruling, however, was clear and is set forth below:
10

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 11 of 15
In light of all of the above, and in view of the submitted evidence, including
the medical records, credible witness testimony, and findings of fact, I find
that the onset of Petitioner’s left shoulder pain was within 48 hours of her
November 15, 2016 flu vaccination.
ECF No. 46 at 3. And starting from November 17, 2016 (48 hours after vaccination), the
records undoubtedly demonstrate that Petitioner suffered the residual effects of her
shoulder injury for more than six months. See, e.g., Ex. 3 at 6-7 (Petitioner’s MRI report
of her left shoulder at Advance Radiology); Ex. 2 at 2 (records of Petitioner’s appointment
with Dr. Simmons). 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.
V. Damages
The parties have also briefed damages in this case, which is limited to claims for
an award of actual pain and suffering plus past unreimbursable expenses. Petitioner
requests $45,000.00 for her actual pain and suffering, and $257.28 for her past out-of-
pocket medical expenses, for a total award of $45,257.28. Mot. at 10. Respondent
proposed an award of $20,000.00 for pain and suffering. Opp. at 20. He does not object
to Petitioner’s request for $257.28 in unreimbursable expenses.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
11

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 12 of 15
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.8
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. In determining appropriate compensation for pain
and suffering, I have carefully reviewed and considered the complete record in this case,
including all medical records, declarations, plus all filings submitted by both Petitioner and
Respondent. I have also considered prior awards for pain and suffering in both SPU and
non-SPU SIRVA cases and relied upon my experience adjudicating these cases.
However, my determination is ultimately based upon the specific circumstances of this
case.
In her brief, Petitioner does not identify a specific case to be used as a comparison
for her proposed award, but instead cites to 22 prior SPU SIRVA cases that are below
the median award for SIRVA cases, ranging from $60,000.00 to $90,000.00. Mot. at 11-
12. Petitioner states that she recognizes that she suffered a milder SIRVA injury, and that
most of her treatment consisted of over-the-counter medications and an at home exercise
program. Id. at 12. Thus, she believes her request for $45,000.00 in pain and suffering to
be a reasonable amount. Her injury substantially impacted her day to day life, causing
her to stop activities she once enjoyed such as cross-stitching, walking her dogs, caring
for her grandchild, cooking, and driving. Ex. 9; Tr. at 19. Ms. Merson testified, and the
medical records corroborate, that she is generally averse to seeking medical attention
and thus waited quite a while before seeking treatment, which likely exacerbated her
condition. Ex. 3 at 4; Ex. 10 at 4; Tr. at 29.
Respondent, by contrast, submits that the lesser sum of $20,000.00 is appropriate
for pain and suffering. Opp. at 17. While Respondent cites and argues that pain and
suffering awards outside the Program should be considered (and notes that they tend to
be lower in magnitude), I find that awards issued within the Program are most persuasive.
It is important to bear in mind that Vaccine Act claims are litigated within a no-fault
program intended to be generous in many regards, resulting in a slightly different scale
(that admittedly may produce higher award values than the non-Program comparables
pointed to by Respondent). Thus, other reasoned decisions in the Vaccine Program
provide the most useful guidance in reaching an award amount in this case.
8 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
12

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 13 of 15
In this case, the record establishes that although Ms. Merson experienced the
onset of shoulder pain almost immediately after vaccination, the fact that she waited so
long to seek medical treatment and did not undergo any of the recommended treatment
will have to be considered in calculating a pain and suffering award. To be clear, Ms.
Merson should not be penalized for not seeking medical treatment right away. As she
testified (and as corroborated by the medical record itself), she is a person who is
generally averse to formal medical treatment, and thus avoids doctors. Ex. 3 at 4; Ex. 4
at 1; Ex. 5 at 1-2; Ex. 6 at 2; Tr. 59-61. The record also supports Ms. Merson’s testimony
that she does not like to take prescribed medications and does not like needles, which
explains her reticence to undergo an EMG nerve conduction study and receive a steroid
injection.
Nevertheless, I must base my decision in awarding damages upon the record -and
what it “says” about the overall nature of a claimant’s vaccine injury. In SIRVA cases
featuring an extensive treatment history and proof of a large number of intervention efforts
(e.g, multiple steroid injections, months of physical therapy, shoulder surgery and post-
operative physical therapy), a larger award for pain and suffering is appropriate. In a case
such as Ms. Merson’s, by contrast, where the record is sparse and the evidence of pain
and suffering is based mostly on testimonial evidence, it becomes much more difficult to
justify the same magnitude of award.
Specifically, I take note of the fact that Ms. Merson did not seek medical treatment
right away. While she discussed her shoulder injury with her psychiatrist, Dr. Gold,
approximately four months after vaccination, she did not seek medical treatment until
nearly five months after vaccination. Even considering Ms. Merson’s aversion to formal
medical treatment and her general avoidance of doctors, it remains the case that a very
serious and painful injury will impel an individual to seek treatment – and thus the failure
to do so is more reflective of a less-serious injury than the claimant’s personal proclivities
with respect to medical care generally. In addition, as Ms. Merson testified and the
medical records show, that Ms. Merson’s shoulder pain mostly subsided within seven
months of vaccination. The worst of her symptoms appear to have subsided in less than
a year, confirming that her injury was on the milder side of SIRVA injuries that this
Program encounters. The sum demanded by Petitioner - $45,000.00 - is on the lower side
of the median award in SIRVA cases, and thus reflects these concerns.
Respondent’s proposed award of $20,000.00, by contrast, is simply too low. In
other non-surgical SIRVA cases9 where the total duration of the individual’s SIRVA injury
9 Case law is very helpful is such circumstances, as guidance for the shape of the award in this case. While
both Petitioner and Respondent cite to numerous cases in their respective briefs, however, neither party
sufficiently analyzed cases that would support their requested figures. Simply adding string cites and listing
the amounts awarded for pain and suffering in each case is not particularly helpful. A detailed discussion
13

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 14 of 15
was less than one year, I have routinely awarded pain and suffering amounts in excess
of $55,000.00. See, e.g., Bartholomew v. Sec'y of Health & Hum. Servs., No. 18-1570V,
2020 WL 3639805, at *3 (Fed. Cl. June 5, 2020) ($67,000.00 in pain and suffering for a
mild SIRVA injury of approximately eight months in duration); Magee v. Sec'y of Health &
Hum. Servs., No. 18-185V, 2020 WL 5031971, at *8 (Fed. Cl. July 21, 2020) ($65,000.00
in pain and suffering for a SIRVA injury of approximately seven months in duration);
Johnson v. Sec'y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891, at *7 (Fed.
Cl. Jan. 25, 2021) ($65,000.00 in pain and suffering for a SIRVA injury of approximately
six months duration).
Other cases demonstrate that an award comparable to what Petitioner demands
has been appropriate even when the claimant self-treated for a period of time, or where
the scope and extent of medical interventions was limited. See, e.g., Rayborn v. Sec'y of
Health & Hum. Servs., No. 18-0226V, 2020 WL 5522948, at *11-12 (Fed. Cl. Aug. 14,
2020) ($55,000.00 in pain and suffering; petitioner opted to self-treat and use NSAIDs for
the first four months after vaccination, and received one steroid injection and underwent
14 physical therapy sessions); George v. Sec'y of Health & Hum. Servs., No. 18-0426V,
2020 WL 4692451, at *3 (Fed. Cl. July 10, 2020) ($67,000.00 for pain and suffering;
majority of the petitioner’s treatment consisted of physical therapy, and duration of her
treatment lasted approximately seven months); Russano v. Sec'y of Health & Hum.
Servs., No. 18-0392V, 2020 WL 3639804, at *4 (Fed. Cl. June 4, 2020) ($80,000.00 for
eight month-long SIRVA; petitioner’s pain was fairly significant in the beginning but
progressively eased over time).
The facts specific to this case support a lower award than in Russano, George and
Rayborn. In Russano, the petitioner endured 23 physical therapy sessions, multiple X-
rays, an MRI, and a cortisone injection, plus additional treatments for her inflammatory
ear condition. Id. at * 3. In George, the petitioner underwent significant physical therapy
and received a steroid injection. Rayborn is arguably the most comparable case, but even
it is distinguishable, since that petitioner underwent physical therapy and received one
steroid injection – none of which were included in Ms. Merson’s treatment.
At bottom, although the limited scope of Petitioner’s treatment does not support an
award closely tracking these comparable cases, the amount I award reasonably takes
into account the fact that Ms. Merson experienced months of shoulder pain, living with it
until being prodded by her family to seek formal medical treatment. Thus, I find that her
of the facts of similar cases and the amounts awarded for pain and suffering would better me in reaching a
fair and appropriate award.
14

Case 1:18-vv-00589-UNJ Document 70 Filed 10/03/22 Page 15 of 15
requested amount of $45,000.00 for pain and suffering is fair and appropriate. (I also
award the full amount of unreimbursed expenses, since they are not disputed).
VI. Conclusion
In view of the evidence of record, I find Petitioner is entitled to compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $45,000.00 represents a fair and appropriate amount of
compensation for Ms. Merson’s actual pain and suffering. She is also awarded the
full amount requested for her past unreimbursable medical expenses in the amount
of $257.28. Petitioner is therefore awarded a total of $45,257.28.
I approve a Vaccine Program award in the requested amount set forth above to be
made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix
B, the Clerk of the Court is directed to enter judgment herewith.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either
jointly or separately) a notice renouncing their right to seek review.
15