VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01572
Package ID: USCOURTS-cofc-1_18-vv-01572
Petitioner: Lee Meagher
Filed: 2018-10-10
Decided: 2023-03-21
Vaccine: influenza
Vaccination date: 2015-10-15
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Lee Meagher filed a petition alleging she suffered a shoulder injury related to vaccine administration (SIRVA) following her October 15, 2015, influenza vaccination. The case proceeded as a Table claim, with the Vaccine Injury Table listing SIRVA as a compensable injury if it occurs within 48 hours of vaccination. Respondent initially argued that petitioner's pain was not limited to her shoulder and did not begin within 48 hours. However, a prior finding of fact established that her shoulder pain began within 48 hours of vaccination. The Special Master reviewed the medical records, noting that while petitioner reported some pain radiating to her arm and hand, this was an isolated subjective report and her treatment focused exclusively on her shoulder. The Special Master found that the injury met the criteria for a Table SIRVA, concluding that the condition was localized to the shoulder and caused by the vaccine. Therefore, Lee Meagher was found entitled to compensation for a Table SIRVA, with damages to be determined.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01572-0
Date issued/filed: 2021-04-07
Pages: 7
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/09/2021) regarding 51 Findings of Fact & Conclusions of Law Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1572V
UNPUBLISHED
LEE MEAGHER, Chief Special Master Corcoran
Petitioner, Filed: February 9, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT1
On October 10, 2018, Lee Meagher filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 15, 2015. Petition at 1. The case was assigned to the Special Processing Unit
(“SPU”) 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-01572-UNJ Document 55 Filed 04/07/21 Page 2 of 7
For the reasons discussed below, I find that the onset of Petitioner’s shoulder pain
occurred within 48 hours of the October 15, 2015 flu vaccination, as required by the Table
for a SIRVA claim, although other fact issues (plus the age of the case) will require the
matter’s transfer out of SPU.
I. Relevant Procedural History
This case was initiated on October 10, 2018. ECF No. 1. On August 5, 2019,
Respondent filed a status report indicating that he was willing to engage in discussions
with Petitioner regarding a potential settlement. ECF No. 27. Over the next eleven
months, the parties engaged in litigative risk settlement discussions. ECF Nos. 29, 31-
32, 36, 38-42. However, the parties confirmed on July 10, 2020 that they had reached an
impasse. ECF No. 44.
On September 14, 2020, Respondent filed a Rule 4(c) Report opposing
compensation in this case. ECF No. 45. In it, Respondent asserted that Petitioner had not
established all of the elements of a SIRVA Table claim. Res. Report at 7-9. Specifically,
Respondent contended that Petitioner could not establish that her shoulder pain began
within 48 hours of the October 15, 2015 vaccination. Id. at 7-8. Respondent further argued
that there was evidence indicating Petitioner’s symptoms were not limited to the shoulder
in which the vaccine was administered. Id. at 8.
I held a status conference with the parties on November 23, 2020. ECF No. 46.
During the call, I informed the parties that I felt Petitioner could likely overcome the issue
raised by Respondent regarding the onset of her alleged SIRVA. However, I stated that
the nature and location of Petitioner’s symptoms presented a more complicated issue that
might require expert input. The parties were directed to resume settlement discussions
taking into account my initial feedback, and were further informed that the case would be
transferred out of SPU if settlement did not occur shortly. I notified the parties that, if the
case were transferred, I would likely make a factual finding that Petitioner’s shoulder pain
began within 48 hours of the October 15, 2015 vaccination prior to issuing an order to
reassign the case.
On January 29, 2021, the parties filed a joint status report confirming that they had
(again) reached an impasse in their settlement discussions. ECF No. 50. Accordingly, this
case is ripe for a determination regarding the onset of Petitioner’s shoulder pain.
2

Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 3 of 7
II. Issue
At issue is 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) (required onset for pain listed in the QAI).
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). “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 & 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). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later 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).
3

Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 4 of 7
The Court has also said that 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.” § 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.
A 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, 110 Fed. Cl. at 204 (citing § 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).
IV. Finding of Fact
In making a finding regarding the issue of onset, I have reviewed the entire record,
including all medical records, affidavits, and Respondent’s Rule 4(c) Report.3 I have
specifically based my finding on the following evidence:
• On October 15, 2015, Petitioner was administered a flu vaccine
intramuscularly in her right arm at her workplace. Exs. 1 at 1; 15 at ¶ 2.
• On November 12, 2015, Petitioner presented to her primary care provider
with a chief complaint of right ankle pain after twisting her ankle six days
3 A more complete recitation of the facts can be found in the Petition and Respondent’s Rule 4(c) Report.
Given the issues involved in this ruling, I have limited my discussion to the records most relevant to the
onset of Petitioner’s SIRVA.
4

Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 5 of 7
earlier. Ex. 3 at 23. The associated record does not reflect a complaint of
shoulder pain. Id. at 23-24.
• On December 24, 2015 (a little more than two months post-vaccination)
Petitioner underwent an annual physical examination with her primary care
physician. Ex. 3 at 17-20. Petitioner stated that her right shoulder had been
sore “since receiving her flu vaccine in her right arm in October 2015.” Id.
at 17. Petitioner’s physician recommended that she undergo physical
therapy. Id.
• On January 5, 2016, Petitioner presented to BWH Occupational Health
Service reporting right shoulder pain. Ex. 12 at 3. Petitioner stated that her
symptoms began on October 16, 2015, and had worsened over time. Id.
Petitioner was assessed as having a right rotator cuff injury. Id. at 4.
• On January 28, 2016, Petitioner underwent an initial physical therapy
evaluation for treatment of right shoulder pain at Briggs Chiropractic &
Physical Therapy Office. Ex. 6 at 3-5. Petitioner reported that she had
received a flu vaccination on October 15, 2015, and the following day she
experienced pain localized to the site of administration. Id. at 3. Petitioner
was diagnosed with right rotator cuff tendinitis, and the date of onset was
recorded as “10-16-15.” Id.
• On March 3, 2016, Petitioner returned to BWH Occupational Health Service.
Ex. 12 at 6. Petitioner reported that her right shoulder had “never stopped
hurting since her flu vaccine” in October 2015. Id.
• On March 31, 2016, Petitioner had a follow-up appointment with her primary
care physician for treatment of right shoulder pain. Ex. 3 at 13. Petitioner
stated that she had experienced right shoulder discomfort “since receiving
her flu vaccine at work in October.” Id.
• On July 25, 2016, Petitioner underwent an initial physical therapy evaluation
at Bay State Physical Therapy. Ex. 8 at 1. Petitioner reported increased
shoulder pain following a vaccination, and the date of onset was recorded
as October 16, 2015. Id. at 1-2.
• On January 24, 2017, Petitioner completed a “Health History Form” in
connection with her treatment at New England Orthopedic Specialists. Ex.
5

Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 6 of 7
9 at 14. Petitioner indicated that she had experienced right shoulder pain
since receiving a flu vaccination on October 15, 2015. Id.
• On October 12, 2018, Petitioner filed a supplemental affidavit providing
additional information regarding her injury and treatment course. Ex. 15. In
it, Petitioner averred that she was administered a flu vaccination on October
15, 2015 and had experienced shoulder soreness later that day. Id. at ¶¶ 2-
3. Petitioner stated that her symptoms persisted during the subsequent
days despite her use of over-the-counter medication, heat, Biofreeze, and
self-massage. Id. at ¶¶ 4-5. Petitioner averred that she reported her
shoulder pain during a November 12, 2015 medical appointment for
treatment of a right ankle injury; however, Petitioner stated that her medical
provider was focused on her ankle during the appointment and did not
appear concerned regarding her shoulder symptoms. Id. at ¶ 6.
The above items of evidence collectively establish that Petitioner’s shoulder pain
most likely began within 48 hours of receiving the October 15, 2015 flu vaccine. Petitioner
consistently reported her pain as beginning close-in-time to the vaccination (i.e. within a
day), and her first treatment visit with respect to the alleged injury was not egregiously
long after receiving the vaccine.
Admittedly, there is evidence of an intervening medical appointment between
Petitioner’s vaccination and December 24, 2015 – the date on which her records first
document a complaint of shoulder pain. Indeed, Petitioner presented to her primary care
provider on November 12, 2015, after twisting her right ankle. See Res. Report at 8 (citing
Ex. 3 at 22-24). Respondent asserts that it “strains credulity that [P]etitioner had shoulder
pain within 48 hours of vaccination, which continued for a month, and yet she did not seek
treatment for it while simultaneously seeking treatment for a twisted ankle.” Id.
Although Respondent’s point is reasonable, a single intervening medical
encounter where only one issue was addressed (and was in fact likely the reason for
seeking treatment at that time) is not enough to disprove onset. This is especially so given
the many assertions at subsequent medical encounters (described above) regarding the
post-vaccination timing of Petitioner’s symptoms.4 Furthermore, the affidavit submitted by
Petitioner is consistent with the medical evidence, and I have found no reason not to
deem it credible.
4 Additionally, as described above, Petitioner asserts that she did indeed report shoulder pain during the
November 12, 2015 medical appointment. Ex. 15 at ¶ 6.
6

Case 1:18-vv-01572-UNJ Document 55 Filed 04/07/21 Page 7 of 7
I also do not conclude that Petitioner’s just over two-month treatment delay
undermines her onset assertions. Petitioner’s medical records and affidavits reflect a
pattern similar to other SIRVA claims, in which injured parties reasonably delay treatment,
often based on the (mistaken) assumption that their pain is likely transitory or insignificant.
See, e.g., Larish v. Sec’y of Health & Human Servs., 18-20V, 2019 WL 5266886, at *6-
10 (Fed. Cl. Spec. Mstr. Jul. 2, 2019) (finding onset of shoulder pain within 48 hours of
vaccination despite a nine-week delay in treatment because petitioner’s medical records
recorded immediate post-vaccination pain); Tenneson v. Sec’y of Health & Human Servs.,
No. 16-1664V, 2018 WL 3083140, at *5 (Fed. Cl. Spec. Mstr. Mar. 30, 2018) (finding a
48-hour onset of shoulder pain despite a nearly six-month delay in seeking treatment),
motion for review denied, 142 Fed. Cl. 329 (2019); Williams v. Sec’y of Health & Human
Servs., 17-830V, 2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2019) (noting a
delay in seeking treatment because petitioner underestimated the severity of her shoulder
injury); Knauss v. Sec’y of Health & Human Servs., 16-1372V, 2018 WL 3432906 (Fed.
Cl. Spec. Mstr. May 23, 2018) (noting a three-month delay in seeking treatment).
Accordingly, I find there is preponderant evidence to establish the onset of
Petitioner’s pain occurred within 48 hours of the October 15, 2015 vaccination.
V. Reassignment of Case
As previously described, Respondent additionally asserts in his Rule 4(c) Report
that Petitioner’s symptoms were not limited to the shoulder in which the vaccine was
administered, and thus the injury might not meet the Table requirements independent of
onset. Res. Report at 8. After review of the records, I conclude that this issue will likely
require expert input. Because this case has already been pending for over two years
without settlement, I find that the circumstances warrant transfer of the case out of the
Special Processing Unit. Accordingly, pursuant to Vaccine Rule 3(d), I will issue a
separate order reassigning this case randomly to a Special Master.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-01572-1
Date issued/filed: 2023-03-21
Pages: 8
Docket text: PUBLIC ORDER/RULING (Originally filed: 2/23/2023) regarding 68 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (amb) Service on parties made.
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Case 1:18-vv-01572-UNJ Document 70 Filed 03/21/23 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1572V
Filed: February 23, 2023
PUBLISHED
Special Master Horner
LEE MEAGHER,
Petitioner,
Shoulder Injury Related to
v.
Vaccine Administration
(“SIRVA”); Influenza (“flu”)
SECRETARY OF HEALTH AND
vaccine; Ruling on the Record
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On October 10, 2018, petitioner, Lee Meagher, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012)2, alleging she suffered a
shoulder injury related to vaccine administration (“SIRVA”) following receipt of her
October 15, 2015, influenza (“flu”) vaccination. (ECF No. 1.) For the reasons discussed
below, I find that petitioner is entitled to compensation for a Table Injury of SIRVA.
I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
1 Because this document contains a reasoned explanation for the special master’s action in this case, it
will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the document 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 the special master, upon review, agrees that the identified material fits within this definition, it
will be redacted from public access.
2 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10-34.
1

Case 1:18-vv-01572-UNJ Document 70 Filed 03/21/23 Page 2 of 8
received it in the United States; suffered a serious, long-standing injury; and has
received no previous award or settlement on account of the injury. Finally – and the key
question in most cases under the Program – the petitioner must also establish a causal
link between the vaccination and the injury. In some cases, the petitioner may simply
demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be
shown that the vaccine recipient suffered an injury of the type enumerated in the
“Vaccine Injury Table,” corresponding to the vaccination in question, within an
applicable time period following the vaccination also specified in the Table. If so, the
Table Injury is presumed to have been caused by the vaccination, and the petitioner is
automatically entitled to compensation, unless it is affirmatively shown that the injury
was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300 aa-
11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).
As relevant here, the Vaccine Injury Table lists a Shoulder Injury Related to
Vaccine Administration or “SIRVA” as a compensable injury if it occurs within 48 hours
of administration of a vaccination. § 300aa-14(a) as amended by 42 CFR § 100.3.
Table Injury cases are guided by “Qualifications and aids in interpretation” (“QAIs”),
which provide more detailed explanation of what should be considered when
determining whether a petitioner has actually suffered an injury listed on the Vaccine
Injury Table. 42 CFR § 100.3(c). To be considered a “Table SIRVA,” petitioner must
show that her injury fits within the following definition:
SIRVA manifests as shoulder pain and limited range of motion occurring
after the administration of a vaccine intended for intramuscular
administration in the upper arm. These symptoms are thought to occur as a
result of unintended injection of vaccine antigen or trauma from the needle
into and around the underlying bursa of the shoulder resulting in an
inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal
structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is
not a neurological injury and abnormalities on neurological examination or
nerve conduction studies (NCS) and/or electromyographic (EMG) studies
would not support SIRVA as a diagnosis . . . . A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient's symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
2

Case 1:18-vv-01572-UNJ Document 70 Filed 03/21/23 Page 3 of 8
42 CFR §100.3(c)(10).
Vaccine Program petitioners must establish their claim by a “preponderance of
the evidence”. § 300aa-13(a). That is, a petitioner must present evidence sufficient to
show “that the existence of a fact is more probable than its nonexistence . . . .” Moberly
v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010). A
petitioner may not receive a Vaccine Program award based solely on her assertions;
rather, the petition must be supported by either medical records or by the opinion of a
competent physician. § 300aa-13(a)(1).
II. Procedural History
Based on the allegations in the petition, this case was initially assigned to the
Special Processing Unit or “SPU” for potential informal resolution. (ECF No. 9.) Over
several months, petitioner filed medical records and affidavits marked as Exhibits 1-16.
(ECF Nos. 5-7, 10, 15.) She filed a Statement of Completion on January 22, 2019.
(ECF No. 17.)
Thereafter, respondent took many months to review this case. Initially,
respondent confirmed as of August 5, 2019, that he was willing to engage in settlement
discussions. (ECF No. 27.) Petitioner provided a demand for damages to respondent
on November 19, 2019. (ECF No. 36.) At that time, petitioner also filed updated
medical records and workers’ compensation records marked as Exhibits 17-19. (ECF
Nos. 33-34.) The parties engaged in settlement discussions until July of 2020, at which
point petitioner advised that the parties had reached an impasse. (ECF No. 44.)
Respondent then filed his Rule 4(c) Report on September 14, 2020. (ECF No.
45.) Respondent recommended against compensation. With regard to petitioner’s
Table SIRVA claim, he argued that she had not demonstrated her shoulder pain began
within 48 hours of vaccination and that her injury did not appear to be limited to her
affected shoulder (i.e., issues relating to SIRVA QAI prongs one and three). With
regard to any cause-in-fact claim, respondent noted that no expert report had been filed
to provide a medical theory and he further suggested, consistent with his assessment of
the Table injury claim, that a temporal relationship was not established. (Id. at 6-10.)
A follow up status conference was held within the SPU on November 23, 2020.
(ECF No. 46.) The Chief Special Master advised that he felt that the petitioner could
likely overcome the issues raised in respondent’s report and instructed the parties to
resume settlement discussions. (Id.) Petitioner subsequently filed additional updated
medical records marked as Exhibits 20-21. (ECF No. 47.) However, as of January 29,
2021, the parties again advised that they had reached an impasse. (ECF No. 50.)
On February 9, 2021, the Chief Special Master issued a Finding of Fact holding
that petitioner had established by preponderant evidence that she experienced onset of
shoulder pain within 48 hours of the vaccination at issue, thereby resolving a significant
point of litigation. (ECF No. 51.) However, he also determined that he would transfer
3

Case 1:18-vv-01572-UNJ Document 70 Filed 03/21/23 Page 4 of 8
the case out of the SPU due to its age and other contested issues. (Id. at 2.) The case
was reassigned to Special Master Roth on March 3, 2021. (ECF No. 53.)
On April 5, 2021, Special Master Roth held a status conference. She advised
that:
At today’s conference, respondent’s Rule 4(c) Report was discussed,
including his concern about petitioner’s report of pain radiating down her
arm. I noted that petitioner’s medical records do not contain any reference
to cervical complaints, nor did she report tingling or numbness radiating
down her arm indicative of a radiculopathy. Petitioner’s complaints of arm
pain appear, from the record, to stem from her shoulder injury and are
consistent with complaints by many petitioners suffering from SIRVA
injuries. Overall, the medical records, which are consistent with petitioner’s
petition and affidavit, are likely supportive of entitlement.
(ECF No. 54, p. 1.) Special Master Roth recommended mediation and expressed
concern that litigation would not overcome the parties’ fundamental difference on
valuing the case and therefore ultimately waste judicial resources. (Id. at 2.)
After the parties remained unable to informally resolve the case, Special Master
Roth held a further status conference on September 3, 2021. (ECF No. 59.) During
that conference, the merits were further discussed and the parties agreed that expert
reports would not be necessary to resolve entitlement. (Id. at 2.) Special Master Roth
ordered the parties to file briefing on entitlement. (Id.)
The parties filed simultaneous briefs regarding entitlement on December 22,
2021. (ECF No. 63-64.) Thereafter, no action was taken in the case until it was
reassigned to the undersigned on February 1, 2023. (ECF No. 65.) On February 2,
2023, I issued a Scheduling Order advising as follows:
The parties filed simultaneous briefs regarding entitlement on December
22, 2021. (ECF Nos. 62-63.) The case was subsequently reassigned to the
undersigned. The parties are hereby advised that after review of the
procedural history, I have concluded that this case is ripe for resolution of
entitlement and that the parties have had a full and fair opportunity to
develop the record. Thus, I intend to resolve the question of entitlement
pursuant to Vaccine Rule 8(d). If either party has any objection, they shall
file a status report so advising by no later than Friday, February 17, 2023.
If no objection is raised, I intend to resolve entitlement as soon as
practicable based on the existing record and the parties' December 22,
2021 briefs.
(Scheduling Order (NON-PDF), 2/2/2023.)
In response to my order, petitioner filed an amended petition more explicitly
delineating that she alleges both on- and off-Table claims for her shoulder injury. (ECF
4

Case 1:18-vv-01572-UNJ Document 70 Filed 03/21/23 Page 5 of 8
No. 66.) However, she also filed a status report confirming the case is ripe for
resolution. (ECF No. 67.) Respondent filed no objection. Accordingly, this case is now
ripe for resolution.
III. Factual History and Respondent’s Defense
Given the procedural posture of this case and the narrow basis for respondent’s
defense following the Chief Special Master’s finding of fact, an exhaustive description of
petitioner’s medical records is not necessary. Instead, this summary will focus on the
most pertinent points raised in respondent’s December 22, 2021 brief on entitlement
and his explanation of his defense based on those facts. I do note, however, that I have
completed a review of the entire record of the case, including those medical records that
are not explicitly discussed.
Petitioner received a flu vaccine in her right arm on October 15, 2015. (Ex. 1.)
For the reasons discussed in the Chief Special Master’s prior Finding of Fact, petitioner
subsequently experienced onset of right shoulder pain within 48 hours of that
vaccination. (ECF No. 51.) Although this fact finding is not binding on me, I agree with
the Chief Special Master’s conclusion based on my own review of the complete record
and incorporate the Chief Special Master’s recitation of the facts and analysis into this
ruling on entitlement.
According to respondent’s recitation of the facts, petitioner experienced reduced
range of motion in her right shoulder that was confirmed as of a physical examination
conducted January 5, 2016. (ECF No. 62, pp. 2-3 (discussing Ex. 12, pp. 3-4).) At that
time, petitioner was diagnosed with a rotator cuff injury and physical therapy was
recommended. (Id. at 3 (discussing Ex. 12, pp. 4-5).) When petitioner reported to
physical therapy on January 28, 2016, she reported that over time her pain had begun
to radiate into her arm and hand. (Id. (discussing Ex. 6, pp. 2-4).) Petitioner ultimately
did not complete her recommended course of physical therapy. (Id. (discussing Ex. 19,
p. 4; Ex. 12, p. 6).)
Petitioner returned to her primary care provider on March 31, 2016. (ECF No.
62, p. 4 (discussing Ex. 3, pp. 13-14).) At that time she had full range of motion, but
reported pain with external rotation. She reported constant, dull, aching pain in her
shoulder. She denied weakness, numbness, or tingling. (Id.) She was again referred
to physical therapy. On July 25, 2016, she presented for a physical therapy
assessment. (Id. (discussing Ex. 8, pp. 1-2).) This assessment demonstrated
decreased strength and range of motion deficits. (Id.) Petitioner attended 36 physical
therapy sessions, but still had pain and limited range of motion at discharge. (Id.
(discussing Ex. 8, p. 53).)
On January 24, 2017, petitioner’s right shoulder was again evaluated. (ECF No.
62, p. 5 (discussing Ex. 9, pp. 8-12).) Petitioner reported pain with internal rotation and
mildly positive Hawkins impingement signs. She had near normal range of motion,
except for mildly decreased abduction. She had no weakness. An MRI showed a high-
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grade tear of the right supraspinatus tendon. (Id.) When petitioner returned for a follow
up on February 1, 2017, she had trace weakness and mild right shoulder impingement.
She was administered a subacromial cortisone injection. (Id. (discussing Ex. 9, p. 6).)
Petitioner returned for care on February 14, 2017, now reporting bilateral
shoulder pain. (ECF No. 62, p. 5 (discussing Ex. 9, pp. 4-5).) The cortisone injection
had not helped and petitioner felt her left shoulder pain was due to overuse from
compensating for her right shoulder pain. She received a cortisone injection in her left
shoulder. (Id.) Petitioner had fluoroscopic guided injections in the right shoulder on
March 22, 2017, and November 30, 2017. (Id. at 5-6 (discussing Ex. 10, pp. 21-22; Ex.
3, p. 38).) Petitioner had an MRI of her left shoulder on December 18, 2017. (Id. at 6
(discussing Ex. 13, p. 3).) It showed “a moderate grade partial thickness tear at the
posterior interval of the distal supraspinatus, . . . mild acromioclavicular join
osteoarthritis, . . . [and] trace fluid within the subacromial bursa, compatible with early,
resolving bursitis[.]” (Id.)
Petitioner had a further follow up on December 14, 2017, which showed that her
condition had not resolved. (ECF No. 62, p. 6 (discussing Ex. 13, p. 1).) According to
respondent, no further relevant medical records have been filed. (Id.)
Based on the above, respondent contends that petitioner “has not provided
preponderant evidence demonstrating the requisite facts to establish compensation for
petitioner’s alleged SIRVA. Specifically, petitioner’s pain does not appear to be limited
to her right shoulder, as required by the QAI.” (ECF No. 62, p. 8.) In support of this
contention, respondent indicates that “[t]he first time she presented for PT, she reported
that her right shoulder pain radiated down her right arm into her hand.” (Id. at 8-9 (citing
Ex. 6, pp. 2-4).) This is the sole argument respondent advances against petitioner’s
Table injury claim and the full extent of respondent’s argument on that question. (Id.)
IV. Discussion
With regard to the third SIRVA criterion, which requires that the petitioner’s pain
and reduced range of motion be limited to the shoulder at issue, the government
addressed this QAI criterion in response to public comment. 82 Fed. Reg. 6294 (Jan.
19, 2017). For clarity and context, the comment summary and response are worth
quoting in full:
Comment: A commenter suggested that shoulder injury related to vaccine
administration (SIRVA) as defined in the QAI is too restrictive because the
recipient's pain and reduced range of motion must be limited to the shoulder
in which the intramuscular vaccine was administered. The commenter
stated that such language was an artificial and unnecessary qualification,
and expressed concern that recipients who have other symptoms, such as
shoulder pain radiating to the neck or upper back, will not have the benefits
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of a Table injury. The commenter suggested that the QAI be expanded to
include the shoulder and parts of the body attributed to that injury.
Response: SIRVA is a musculoskeletal condition caused by injection of a
vaccine intended for intramuscular administration into the shoulder, and, as
its name suggests, the condition is localized to the shoulder in which the
vaccine was administered. In other words, pain in the neck or back without
an injury to the shoulder in which an individual received a vaccine would not
be considered SIRVA. Shoulder injuries that are not caused by injection
occur frequently in the population. Thus, it is important to have a definition
of SIRVA that is clearly associated with vaccine injection. The portion of the
QAI limiting the pain and reduced range of motion to the shoulder in which
the vaccine was administered is necessary to accurately reflect the
vaccine-associated condition.
82 Fed. Reg. 6294, 6296.
As I have indicated in prior cases, the government’s comment response reveals
that the third SIRVA criterion is intended to ensure that SIRVA claims are limited to
instances in which “the condition is localized to the shoulder in which the vaccine was
administered” (emphasis added). Thus, it is clear that the gravamen of this requirement
is to guard against compensating claims involving patterns of pain or reduced range of
motion indicative of a contributing etiology beyond the confines of a musculoskeletal
injury to the affected shoulder. Grossman v. Sec’y of Health & Human Servs., No. 18-
13V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022). The Chief Special
Master has reached the same conclusion on multiple occasions. E.g., Cross v. Sec’y of
Health & Human Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr.
Jan. 6, 2023) (finding that “despite the notations of pain extending beyond the shoulder,
Petitioner’s injury is consistent with the definition of SIRVA and there is not
preponderant evidence of another etiology.”); K.P. v. Sec’y of Health & Human Servs.,
No. 19-65V, 2022 WL 3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022) (holding that
“claims involving musculoskeletal pain primarily occurring in the shoulder are valid
under the Table even if there are additional allegations of pain extending to adjacent
parts of the body.”); Werning v. Sec'y of Health & Human Servs., No. 18-0267V, 2020
WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that a petitioner
satisfied the third SIRVA QIA criterion where there was a complaint of radiating pain,
but the petitioner was “diagnosed and treated solely for pain and limited range of motion
to her right shoulder.”)
Even by respondent’s own recitation of the facts, post-vaccination petitioner had
a multi-year course of treatment that focused exclusively on her condition as relating to
her shoulder, inclusive of a diagnosis of a rotator cuff injury later confirmed by MRI. In
the face of this history, respondent relies on a single notation by a physical therapist,
not a physician, documenting an isolated subjective report by petitioner that “sometimes
pain radiates all the way to R hand” and that “over time pain has radiated into arm 
hand.” (Ex. 6, pp. 2, 4.) Petitioner had been referred to this physical therapist with a
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diagnosis of “right rotator cuff tendonitis” (Ex. 6, p. 7), and nothing in the physical
therapist’s records indicate that the physical therapist questioned that diagnosis based
on petitioner’s description of her symptoms or otherwise concluded the report had any
specific diagnostic implications (Ex. 6, passim). Nor has respondent highlighted any
instance where petitioner ever subsequently raised this concern with any of her treating
physicians. And, as Special Master Roth previously observed, there is no other record
that evidences any other condition that would explain this reported symptom.
Respondent has provided no explanation to support his implicit contention that this
isolated report is illuminating as to the nature of petitioner’s injury given her overall
treatment history.
V. Conclusion
In light of all of the above, respondent’s argument against petitioner’s Table claim
of SIRVA is unpersuasive. Moreover, upon consideration of the record as a whole, I
conclude that petitioner has preponderantly established that her injury meets all of the
QAI requirements for a Table SIRVA and that the onset of her injury occurred within the
requisite period required by the Vaccine Injury Table. Respondent has not
demonstrated that her condition is due to any factor unrelated to vaccination.
Accordingly, petitioner is entitled to compensation for a Table SIRVA.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
8

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_18-vv-01572-2
Date issued/filed: 2023-12-15
Pages: 18
Docket text: PUBLIC DECISION (Originally filed: 11/17/2023) regarding 78 DECISION AWARDING DAMAGES. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-01572-UNJ Document 82 Filed 12/15/23 Page 1 of 18
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1572V
Filed: November 17, 2023
LEE MEAGHER, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.
Decision Awarding Damages1
On October 10, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.
(“Vaccine Act”).2 (ECF No. 1.) Petitioner alleged that she suffered a shoulder injury
related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine
that she received on October 15, 2015. (Id.) On February 23, 2023, I issued a decision
finding that petitioner was entitled to compensation for her SIRVA. (ECF No. 69.) For
the reasons discussed below, I now find that petitioner is entitled to compensation in the
amount of $91,207.00, representing $90,000.00 in pain and suffering damages and
$1,207.00 in past unreimbursed expenses.
I. Procedural History
Petitioner’s case was initially assigned to the court’s Special Processing Unit
(“SPU”), a program “designed to expedite the processing of claims that historically have
1 Because this document contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the document 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 All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa-
10, et seq.
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been resolved without extensive ligation.” (ECF No. 9, p. 1.) The parties attempted
informal resolution but reached an impasse. (ECF Nos. 27, 44.) Respondent then filed
his Rule 4 report on September 14, 2020. (ECF No. 45.) Respondent claimed that
petitioner had not establish a SIRVA table claim because “[t]he current record does not
establish that petitioner suffered SIRVA pain within [48] hours of receiving a flu vaccine
on October 15, 2015, and it does not establish that her complaints of pain were limited
to her right shoulder.” (Id. at 9.)
The Chief Special Master issued a Finding of Fact on February 9, 2021. (ECF
No. 51.) The Chief Special Master found that “there [was] preponderant evidence to
establish the onset of Petitioner’s pain occurred within 48 hours of the October 15, 2015
vaccination.” (Id. at 7.) Thereafter, the case was transferred out of SPU and
reassigned to another special master in March of 2021, before later being reassigned to
the undersigned on February 1, 2023. (Id.; ECF Nos. 52-53, 65.) While the case was
pending before the other special master, the parties briefed the issue of entitlement to
compensation. (ECF Nos. 62-63.)
On February 23, 2023, the undersigned filed a Ruling on Entitlement finding that
petitioner “has preponderantly established that her injury meets all the QAI
requirements for a Table SIRVA and that the onset of her injury occurred within the
requisite period required by the Vaccine Injury Table.” (Id. at 8.) On the same day, the
undersigned filed an order confirming that the case was in the damages phase. (ECF
No. 69, p. 1.) The parties filed a joint status report on March 27, 2023, confirming that
all the documentation relevant to a determination of damages had been submitted.
(ECF No. 71.)
On April 26, 2023, petitioner filed a Memorandum in Support of Damages. (ECF
No. 72.) The next day, petitioner filed a supplemental affidavit. (ECF No. 73.)
Respondent filed his Responsive Brief on Damages on May 23, 2023. (ECF No. 75.)
Petitioner filed her reply on June 7, 2023. (ECF No. 76.)
Based on all of the above, I have concluded that the parties have had a full and
fair opportunity to develop the record and that it is appropriate to resolve damages on
the existing record. See Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d
1362, 1366 (Fed. Cir. 2020) (citing Simanski v. Sec’y of Health & Human Servs., 671
F.3d 1368, 1385 (Fed. Cir. 2012); Jay v. Sec’y of Dept. of Health & Human Servs., 998
F.2d 979, 983 (Fed. Cir. 1993)); see also Vaccine Rule 8(d); Vaccine Rule 3(b)(2).
Accordingly, petitioner’s motion is now ripe for a ruling.
II. Factual History
a. Medical Records
Before receiving the flu vaccine at issue, petitioner was relatively healthy. She
attended regular physical examinations, annual OB/GYN appointments, and
dermatology examinations; she also underwent regular colonoscopies. (Ex. 2, pp. 1, 5,
9; Ex. 3, pp. 10, 35; Ex. 4, pp. 2, 10, 14, 17, 20; Ex. 11, p. 1; Ex. 18, p. 8.) Petitioner
received her flu vaccine on October 15, 2015 at Brigham and Women’s Hospital, where
she worked. (Ex. 1, p. 1; Ex. 3, p. 17.)
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On November 12, 2015, petitioner saw a nurse practitioner (“NP”), Marybeth
Baker, after twisting her right ankle and was diagnosed with an ankle sprain. (Ex. 3, pp.
23-24.) Petitioner was seen by her primary care physician, Dr. Kristy Cahill, on
December 24, 2015, for a routine physical examination. (Id. at 18.) In an addendum to
the notes for this appointment, Dr. Cahill noted that petitioner mentioned her right
shoulder “was sore and had been since receiving her flu vaccine in her right arm in
October 2015.” (Id. at 17.) Dr. Cahill suggested physical therapy and recommended
that petitioner discuss her injury with occupational health services at Brigham and
Women’s Hospital given that she received her flu shot “at work.” (Id.; Ex. 12, p. 2.)
On January 5, 2016, petitioner followed Dr. Cahill’s advice and went to Brigham
and Women’s Hospital to seek treatment for her right arm pain. (Ex. 12, p. 3.) She was
seen by a nurse practitioner, Elaine Arnold, and reported the date of injury as her date
of vaccination (October 15, 2015) and the date of symptom onset as the following day
(October 16, 2015). (Id.) NP Arnold found “no asymmetry, atrophy of the muscles
around the shoulder, or a difference in the scapular winging,” as well as “no swelling
erythema, or increased warmth.” (Id. at 4.) NP Arnold did note “tenderness on
palpation at the deltoid, anterior shoulder.” (Id.) She diagnosed petitioner with a
“rotator cuff injury on the right.” (Id.) At this appointment, petitioner reported her pain
as a 5 to 8 out of 10. (Id. at 3.) NP Arnold referred petitioner to physical therapy. (Ex.
6, p. 6.) Petitioner then saw a physical therapist (“PT”), Mary Ann Covelle, on January
28, 2016. (Id. at 2.) Petitioner had pain, reduced strength, and reduced range of
motion. (Id. at 4.) PT Covelle recommended a treatment plan of physical therapy two
times a week for eight weeks. (Id. at 5.) However, petitioner did not return for
subsequent treatments because coverage was denied by workers’ compensation. (Id.
at 1; Ex. 19, p. 4.)
On March 31, 2016, petitioner saw Dr. Cahill for a follow up on her right shoulder
pain. (Ex. 3, p. 13.) Petitioner described her appointment at Brigham and Women’s
Hospital and her inability to continue with physical therapy due to the workers’
compensation issue. (Id.) Dr. Cahill recommended petitioner undergo physical therapy
to avoid frozen shoulder. (Id. at 14.)
On June 14, 2016, petitioner underwent thermogram of her upper body due to
her right shoulder pain. (Ex 7, p. 1.) Petitioner described how her arm began to ache
on October 16, 2015, following a flu vaccine that she received on October 15, 2015.
(Id.) She explained that her pain radiated down her right arm. (Id.) She stated that she
found it difficult to sleep and noted that “movements like using a computer
mouse/reaching behind her are very difficult/with increased pain.” (Id.)
On July 25, 2016, petitioner began physical therapy with PT Colleen
Giansiracusa. (Ex. 8, p. 1.) PT Giansiracusa noted that petitioner “presented with signs
and symptoms consistent with increased shoulder pain following reception of a
vaccination.” (Id. at 2.) PT Giansiracusa performed a functional assessment and
“identified decreased strength, range of motion, and postural deficits.” (Id.) Petitioner
described her experience to PT Giansiracusa and noted “increased pain while
performing computer tasks/specifically using the mouse. Increased shoulder pain with
driving, tends to splint [right] arm.” (Id. at 1.) In addition, petitioner stated that she
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cannot reach behind her and put on clothing without pain, and she described sleeping
as “uncomfortable.” (Id.) Although petitioner described her pain as a 2 out of 10, she
denied that the pain continued to radiate or that she experienced tingling and
numbness. (Id.) PT Giansiracusa recommended physical therapy two times a week for
eight weeks. (Id. at 2.) Petitioner continued her treatment with PT Giansiracusa on July
27, 2016. (Id. at 3.) She reported increased pain and soreness, which she described
as being a 4 out of 10. (Id.) She further reported that, while driving, her pain radiated
down her arm to the elbow. (Id.)
Petitioner attended eight physical therapy sessions with either PT Giansiracusa
or PT Heather Waters throughout the month of August 2016. (Id. at 4-14.) Throughout
this time, petitioner’s pain fluctuated between a 1 and 5 out of 10. (Id.) On August 1,
2016, petitioner reported a pain level of 4 out of 10 and described a “dull ache since
starting therapy.” (Id. at 4.) On August 3, 2016, petitioner’s pain level remained the
same, but she reported feeling “better after [her] last session.” (Id. at 5.) On August 8,
2016, petitioner’s pain level remained consistent at 4 out of10. (Id. at 6.) She reported
that her arm was achy “down to about the elbow” and that one of her at home exercises
made her sore. (Id.) During petitioner’s August 10, 2016 appointment, petitioner
reported an increase in pain to 5 out of 10, an aching pain “below the level of her
elbow,” and some tingling in her right hand. (Id. at 8.) Petitioner’s pain level remained
at a 5 out of 10 during her August 12, 2016 appointment; however, she reported less
aching. (Id. at 9.) After this appointment, petitioner’s pain continued to improve, and
during her August 22, 2016 appointment, she reported a pain level of 1 out of 10. (Id. at
10.)
On August 25, 2016, petitioner had a re-evaluation appointment with PT
Giansiracusa. (Id. at 11.) PT Giansiracusa noted that petitioner’s range of motion and
strength had increased, and her pain had decreased. (Id. at 11-12.) Petitioner reported
that she was able to drive without pain, but “her arm fatigues quickly and aches
occasionally.” (Id. at 11.) PT Giansiracusa recommended that petitioner continue
physical therapy. (Id. at 12-13.) Petitioner saw PT Giansiracusa once more in August
2016. (Id. at 14.) At her August 31, 2023 appointment, she reported her pain as “less
than a 1,” but she continued to report soreness that transitioned into pain at a 1 out of
10 “with certain movements, like using a mouse or when sanitizing equipment at work.”
(Id.) Petitioner did report overall improvement and “significantly less aching to the
elbow.” (Id.)
Petitioner attended nine physical therapy sessions in September 2016. (Id. at
15-31.) At her September 1, 2016 appointment, petitioner reported her pain as a 0 out
of 10; however, she continued to experience pain with certain movements. (Id. at 15.)
PT Giansiracusa reported that petitioner completed her physical therapy appointment
but fatigued easily. (Id. at 15-16.) Petitioner next reported to physical therapy on
September 7, 2016, and she noted her pain was a 1 out of 10. (Id. at 17.) PT
Giansiracusa noted that petitioner continued “to report achy sensation with functional
reaching” and weakness in the arm. (Id. at 17-18.) During her September 9, 2016
appointment, petitioner reported her pain as a 1 out of 10. (Id. at 19.) She further
described how she was having trouble reaching and how performing certain activities,
such as using a mouse, increased her pain and mad her arm feel “heavy.” (Id.)
Petitioner had another appointment on September 12, 2016, during which she reported
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her pain as a 0 out of10, but she experienced pain when “managing laundry at work
[and] reaching overhead.” (Id. at 21.) PT Giansiracusa noted that petitioner “fatigued
quickly with reaching tasks.” (Id.) On September 14, 2016, petitioner reported her pain
as a 1 out of 10 and explained that “she had increased pain and achiness down to the
[right] elbow” after her previous appointment and she had trouble lifting at work. (Id. at
23.) While petitioner reported improvement during her appointment on September 19,
2016, her pain continued at a 1 out of 10 and aching continued down her right arm. (Id.
at 25.)
On September 21, 2016, petitioner underwent another re-evaluation with PT
Giansiracusa. (Id. at 27.) Petitioner noted neck and lower back soreness in addition to
her right arm pain, which had returned. (Id.) She further described her pain as an ache
that was “not as severe as when she began therapy” but that had continued “on a
regular basis.” (Id.) PT Giansiracusa again recommended that petitioner continue
physical therapy. (Id. at 29.) At her next appointment on September 23, 2016,
petitioner reported her pain as a 1 out of 10. (Id. at 30.) On September 28, 2016,
petitioner again reported her pain as a 1 out of 10. (Id. at 31.)
Petitioner attended nine physical therapy sessions in October 2016. (Id. at 32-
42.) On October 3, 2016, petitioner reported her pain as a 1 out of 10 and continued to
describe “achiness to her elbow.” (Id. at 32.) Petitioner’s pain remained consistent at a
1 out of 10 at her next appointment on October 5, 2016. (Id. at 33.) On October 11,
2016, petitioner’s pain had increased to a 3 out of 10. (Id. at 34.) At this appointment,
she reported increased pain after working and observed “a lot of crunching and
cracking” while performing her home exercise program. (Id.) Petitioner again attended
physical therapy the next day and, while petitioner reported “some soreness about the
shoulder,” she noted that her pain had decreased to a 1 out of 10. (Id. at 35.)
Petitioner’s pain continued at a 1 out of 10 at her October 17, 2016 appointment. (Id. at
36.)
On October 19, 2016, petitioner underwent another re-evaluation. (Id. at 37.)
She reported pain at a 1 out of 10 because she could “feel” her arm but her pain was
“not too bad.” (Id.) PT Giansiracusa noted that petitioner had made consistent
progress in pain levels, strength, and functional use of her right arm, and she
encouraged petitioner to continue physical therapy to see additional improvement. (Id.
at 38.) Petitioner was seen for her next appointment on October 24, 2016. (Id. at 40.)
Petitioner reported her pain continued at 1 out of 10; however, her pain had increased
to a 3 out of 10 following work. (Id.) PT Giansiracusa noted that petitioner also
reported lower back pain and suggested that “postural alignment” would help improve
both her back and shoulder pain. (Id.) On October 28, 2016, petitioner again described
her pain as a 1 out of 10. (Id. at 41.) At this appointment, petitioner reported soreness
specifically in her right shoulder and neck. (Id.) Petitioner’s treatment continued on
October 31, 2016, where she again reported her pain as a 1out of 10 and soreness in
her shoulder and neck. (Id. at 42.)
Petitioner attended five physical therapy sessions in November 2016. (Id. at 43-
49.) During her November 2, 2016 appointment, petitioner reported her pain as 1 out of
10 and described “mild heaviness” while driving. (Id. at 43.) On November 7, 2016,
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petitioner reported that she had no pain on arrival; however, she described “mild
heaviness” after working. (Id. at 44.)
Petitioner was seen for a re-evaluation on November 14, 2016. (Id. at 45.) She
reported that she “continues to have mild pain [that] comes and goes, but overall feels
improvement.” (Id.) Although she reported favoring her right arm, petitioner also stated
that her ache was “less frequent.” (Id.) PT Giansiracusa described petitioner’s strength
and functional use as increasing and her pain as decreasing. (Id. at 46.) However, PT
Giansiracusa suggested that petitioner continue physical therapy as she remained
“mildly below previous functional level.” (Id.) On November 21, 2016, petitioner
described her pain as a 2 out of 10 and explained that her increased pain was likely due
to working all weekend. (Id. at 48.) During her November 30, 2016 appointment,
petitioner reported her pain as a 3 out of 10. (Id. at 49.) She explained that her “arm
has been sore again following her work shift. It had been feeling good until it was
challenged again, and the pain returned.” (Id.)
Petitioner attended three physical therapy sessions in December 2016. (Id. at
50-54.) On December 7, 2016, petitioner reported her pain as a 2 out of 10 and noted
that the pain in her shoulder had returned after performing house chores. (Id. at 50.)
PT Giansiracusa described that petitioner had increased fatigue in her shoulder. (Id.)
At her December 14, 2016 appointment, petitioner reported that her pain level continued
at a 2 out of 10. (Id. at 51.) On December 21, 2016, petitioner underwent another re-
evaluation. (Id. at 52.) On top of her report of back soreness, petitioner described her
shoulder pain as being a 1 out of 10, as no longer radiating, and as transitioning into
“[m]ild discomfort while driving.” (Id.)
On January 4, 2017, petitioner saw Dr. Cahill for a complete physical
examination. (Ex. 3, p. 6.) Dr. Cahill referred petitioner to an orthopedist, Dr.
Johnathan Perryman, for further evaluation of her shoulder given that her pain
continues more than one year after her vaccination despite physical therapy. (Id. at 8.)
Petitioner continued to attend physical therapy appointments throughout the rest
of January 2017. (Ex. 8, pp. 55-59.) On January 6, 2017, petitioner reported her pain
as a 2 out of 10 and mentioned that she had been referred to a shoulder specialist. (Id.
at 55.) On January 11, 2017, petitioner reported her pain as a 1 out of 10 and
described her arm as “very achy.” (Id. at 56.) Petitioner had a re-evaluation
appointment on January 18, 2017, during which she noted an “80% improvement
overall,” despite continued pain with some activities. (Id. at 57.)
On January 24, 2017, petitioner had her first appointment with Dr. Perryman.
(Ex. 9, p. 8.) At this appointment, petitioner reported her pain as a 2 out of 10, but it
was “aggravated by internal rotation.” (Id.) Dr. Perryman explained that petitioner’s
shoulder pain began following her flu shot on October 15, 2016. (Id.) She further stated
that she attended physical therapy for several months “with no improvement.” (Id.) Dr.
Perryman ordered an MRI, and petitioner underwent this MRI on January 24, 2017. (Id.
at 12; Ex. 3, p. 45.) Petitioner’s MRI showed “[t]endinopathy with at least high-grade
partial-thickness undersurface tearing involving the mid fibers of the distal
supraspinatus tendon. A full-thickness perforation cannot be excluded. There is no
associated tendon retraction or muscular atrophy.” (Ex. 3, pp. 45-46.) On February 1,
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2017, petitioner saw Dr. Perryman to review her MRI. (Ex. 9, p. 6.) During this
appointment, Dr. Perryman recommended a subacromial cortisone injection, which
petitioner received that same day. (Id. at 6-7.)
Petitioner saw Dr. Perryman for another follow up appointment on February 14,
2017. (Id. at 4.) Because petitioner reported that she did not experience much relief
from the subacromial cortisone injection, Dr. Perryman recommended an intra-articular
cortisone injection. (Id.) Petitioner also reported feeling pain in her left arm that she
believed was “related to her using that side more now that the right shoulder has been
bothering her.” (Id.) Dr. Perryman administered a subacromial cortisone injection into
petitioner’s left arm to relieve this pain. (Id. at 5.) On March 22, 2017, petitioner
underwent a complete diagnostic right shoulder ultrasound and a fluoroscopic guided
injection into the right glenohumeral joint. (Ex. 3, p. 41.) Petitioner described her pre-
procedure pain as a 2 out of 10 and her post-procedure pain as a 1 out of 10. (Id. at
42.)
On April 13, 2017, petitioner went to the hospital because she slammed her right
hand in a car door. (Ex. 10, p. 65.) Petitioner received an x-ray, which confirmed a
fracture. (Id. at 76; Ex. 3, p. 40.) In August 2017, petitioner reported a flare up in her
pre-existing lower back pain. (Ex. 9, p. 2.) On August 3, 2017, petitioner received an x-
ray that revealed “mild degenerative changes of the lumbar spine and sacroiliac joints.”
(Ex. 3, p. 39.)
In November 2017, petitioner returned to physical therapy for her lower back
pain. (Ex. 8, p. 60-69.) On November 15, 2017, petitioner saw physical therapist
Colleen Davis and described her chronic back, which had been “off and on . . . for many
years.” (Id. at 60.) In addition, petitioner reported “achiness” in her right hip. (Id. at 61.)
Petitioner saw PT Davis again on November 17, November 20, November 22, and
November 29, 2017, to treat her back and hip pain. (Id. at 62-69.)
On November 30, 2017, petitioner returned for another fluoroscopic guided
injection for her “right shoulder injury related to vaccine administration (SIRVA).” (Ex. 3,
38; Ex. 13, p. 5.) At her December 1, 2017 physical therapy appointment for her back
and hip pain, petitioner mentioned that she was also experiencing pain in her shoulder;
however, the record does not specify which shoulder was in pain. (Ex. 16, p. 1.)
Petitioner continued to attend physical therapy for her back and hip pain throughout the
month of December 2017. (Id. at 3-20.)
Petitioner returned to see Dr. Perryman on December 14, 2017, for an
“evaluation of both shoulders.” (Ex. 13, p. 1.) Dr. Perryman recommended “wait[ing]
and see[ing] how her right shoulder responds to the intra-articular injection” that was
administered on November 30, 2017. (Id. at 2.) In addition, Dr. Perryman
recommended an MRI of petitioner’s left shoulder. (Id.) Petitioner underwent an MRI
on December 18, 2017, which showed a “[m]oderate grade, partial-thickness tear at the
posterior interval of the distal supraspinatus” and “[m]ild acromioclavicular joint
osteoarthritis.” (Id. at 3.)
On December 18, 2018, petitioner saw Dr. Perryman for an evaluation of her
right knee after she fell. (Ex. 17, p. 11.) Dr. Perryman recommended an MRI, which
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petitioner underwent on January 2, 2019. (Id. at 12.) This MRI revealed an ACL tear.
(Id. at 5-6.) After discussing the results with Dr. Perryman at her February 7, 2019
appointment, petitioner decided to treat her knee injury conservatively with physical
therapy. (Id. at 6.) She continued to see Dr. Perryman for treatment of her knee injury
until April 2019. (Ex. 20, p. 1.)
On March 11, 2020, petitioner saw Dr. Perryman “for repeat evaluation of left
shoulder pain.” (Ex. 20, p. 3; Ex. 21, p. 5.) Dr. Perryman recommended a subacromial
corticosteroid injection, which petitioner received that same day. (Ex. 20, p. 4.)
Petitioner received a fluoroscopic guided cortisone injection into her left glenohumeral
joint on July 22, 2020. (Ex. 20, p. 5; Ex. 21, p. 9.) On October 22, 2020, petitioner saw
Dr. Perryman “for evaluation of both of her shoulders and her right knee.” (Ex. 21, p. 3.)
Based on petitioner’s continued pain in her left shoulder, Dr. Perryman recommended
another MRI and surgery. (Id. at 3.) Petitioner underwent an MRI on her left shoulder
on October 29, 2020, which showed a “[m]oderate grade partial-thickness articular
sided tear of the supraspinatus/infraspinatus tendon junction superimposed upon
moderate tendinosis,” “[m]ild degenerative change of the acromioclavicular joint with
small undersurface osteophytes,” and “[t]race fluid within the subacromial subdeltoid
bursa.” (Id. at 7-8.) On November 5, 2020, petitioner returned to Dr. Perryman “for
evaluation of her left shoulder and her right hip.” (Id. at 1.) Dr. Perryman recommended
taking a “wait-and-see approach” with regards to petitioner’s right hip and referred
petitioner to physical therapy for her left shoulder. (Id. at 1-2.)
b. Petitioner’s Affidavits
Petitioner has submitted two affidavits in this case. (ECF Nos. 10, 73; Exs. 15,
22.) In her first affidavit, petitioner describes herself as being “very healthy” prior to her
October 15, 2015 flu vaccination. (Ex. 15, ¶ 1.) She describes enjoying walking, biking,
camping, skiing, and snow tubing. (Id.) She states that she has worked as a CT
Technologist at Brigham and Women’s Hospital for over 25 years without any
limitations. (Id.) Her job requires a lot of reaching, heavy lifting, and computer work.
(Id. ¶ 10.)
Petitioner received a flu vaccine on October 15, 2015. (Id. ¶ 2.) Petitioner states
that, although her arm felt “achy and sore” later that same day, she considered this
feeling to be “normal.” (Id. ¶ 3.) However, she explains that this “achy, sore feeling”
persisted and began radiating down her arm. (Id. ¶ 4.) Although she was “annoyed,”
she “did not think there could be a serious problem.” (Id.) She states that she treated
this pain with “heat, Ibuprofen, Biofreeze, and self-massage.” (Id. ¶ 5.)
In addition to the pain, petitioner describes how she “had difficulty with the range
of motion in [her] right shoulder and weakness.” (Id. ¶ 7.) She explains that she “was
unable to pull shirts, bras or any fitted clothing down over [her] head. [She] could not
reach behind [her] while driving, as [she] often did to pass things to [her] daughter in the
backseat. Simple tasks such as wiping down counters and tables were painful . . . .”
(Id.)
Petitioner continued to self-treat her right shoulder. (Id. ¶ 9.) She states that she
found herself guarding that side and relying more on her left arm to complete household
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tasks. (Id.) She had difficulty cleaning off her car after it had snowed. (Id.) Although
petitioner continued to work part-time, she primarily used her left arm as certain tasks,
such as working on the computer, remained painful. (Id. ¶ 10.) She described stopping
to “stretch and massage [her] arm several times throughout [her] shift to try to relieve
some of the pain.” (Id.)
Petitioner states that she discussed her shoulder pain with her primary care
physician on December 24, 2015. (Id. ¶ 11.) At that time, her physician “suggested that
[she] follow up with Occupational Health because they had administered the flu
vaccination.” (Id.) Petitioner further explains that her physician suggested that she
follow up “as soon as possible because [her physician] felt physical therapy . . . was
necessary to prevent further injury.” (Id.)
Petitioner describes how she was “evaluated by occupational health on January
5, 2016,” at which point, the nurse practitioner “gave [her] a few simple exercises to
perform at home and said she would discuss it with the physician.” (Id. ¶ 12.) Petitioner
states that she told the nurse practitioner that “the pain was the result of [her] flu
vaccine” and requested that this “incident be filed with worker’s compensation.” (Id.)
The nurse practitioner called petitioner on January 8, 2016, to tell her that the
doctor had suggested physical therapy but did not feel that her pain was “related to the
flu shot.” (Id. ¶ 13.) Petitioner notes that the doctor did not examine her before making
this determination. (Id.) Petitioner attended physical therapy on January 28, 2016;
however, worker’s compensation refused to cover her treatment. (Id. ¶ 14.) Petitioner
continued to try to reach out to occupational health to no avail. (Id. ¶ 15.) She
eventually stopped by after her shift and was scheduled for an appointment that was
eventually cancelled with direction to follow up with her primary care physician. (Id.)
On March 31, 2016, petitioner saw her primary care physician and was given a
referral for physical therapy. (Id. ¶ 16.) Petitioner admits she was “angry about being
financially responsible for [her] treatment and did not know how [she] would afford the
co-payments.” (Id.) She candidly explains that these feelings led her to postpone
scheduling physical therapy. (Id.)
After beginning on July 25, 2016, petitioner states that she continued with
physical therapy and “made slow and steady progress” until January 18, 2017. (Id. ¶
16.) Because petitioner had not seen complete recovery to baseline, her physical
therapist recommended she see an orthopedic specialist. (Id.)
Petitioner saw an orthopedist on January 24, 2017, who ordered an MRI and an
x-ray of her right shoulder. (Id. ¶ 17.) Petitioner states that the MRI showed a tear in
her right rotator cuff and that she received a cortisone injection on February 1, 2017,
which offered “little to no relief.” (Id. ¶¶ 17-18.) Additionally, she explains that, at this
point, she had begun to experience pain in her left shoulder as a result of overuse. (Id.
¶ 18.) Petitioner’s physician recommended “a cortisone injection under fluoroscopic
guidance” for her right shoulder and a cortisone shot for her left. (Id.) Although this
treatment resulted in “some improvement,” petitioner claims that she still experienced
“pain on exertion.” (Id. ¶ 19.) “By early June 2017, the constant pain returned and was
progressing again.” (Id.) Petitioner describes her frustration and states that she “gave
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up hope of making a full recovery.” (Id. ¶ 20.) In the fall of 2017, she learned that her
health insurance plan was set to change, with increased co-payments and higher
deductibles. (Id. ¶ 21.) Therefore, she “requested a second fluoroscopic-guided
cortisone injection, which was done on November 30, 2017.” (Id.)
Petitioner states that “MRI imaging has confirmed that [she has] tears in the
rotator cuffs of both [her] shoulders.” (Id. ¶ 22.) She explains that she still experiences
pain in both shoulders and describes how she is often unable to sleep through the night
due to the pain. (Id.) Petitioner states that “reaching behind [her] or overhead to
perform daily tasks continues to be problematic, as [her] range of motion is not back to
100%.” (Id.) She notes that she recently accepted a new position that requires “an
increase in the physicality of [her] duties.” (Id.) She notes that she worries about an
inability to perform her job functions and the resulting financial implications. (Id.)
In her second affidavit, petitioner states that she has “not sought any recent
treatment for either” of her shoulders. (Ex. 22, ¶ 1.) Although her physicians
recommend surgery on both her shoulders, she explains that she has “chosen to forgo
surgical intervention because the results are not guaranteed and taking the time off
work for recovery would result in decreased income.” (Id.) She describes how she still
lacks “complete range of motion or full strength in [her] right shoulder.” (Id. ¶ 2.) She
states that she “can still perform [her] normal household and work duties with
appropriate modifications,” but that she has recently increased her hours at work, which
often irritates her shoulders. (Id.) She further explains that she still experiences “dull
pain” on a daily basis, which she continues to treat with “Ibuprofen, ice, and gentle
stretches and exercises that were provided to [her] during physical therapy.” (Id.)
III. Party Contentions
a. Petitioner’s “Memorandum in Support of Damages”
Petitioner requests $1,818.94 in past unreimbursed expenses and $100,000.00
for actual pain and suffering. (ECF No. 72, pp. 18, 27.) Petitioner describes the
claimed past unreimbursed expenses as “comprised of $1,612.00 in past expenses and
$206.94 in past mileage [costs].” (Id. at 18.) Along with their memo, petitioner also
submitted an itemized list of both her medical expenses and mileage. (Id. at Tabs A
(Itemized Past Unreimbursed Expenses) and B (Itemized Past Mileage Expenses).) In
support of petitioner’s request for pain and suffering damages, petitioner encourages
the court to look at: (1) the severity of petitioner’s injury; (2) petitioner’s awareness of
her injury and her emotional distress; and (3) the duration of petitioner’s injury. (Id. at
19-26.)
First, petitioner asserts that she “has endured a lengthy and traumatic period of
pain and suffering as a result of her SIRVA.” (Id. at 19.) In support, petitioner
summarizes both her affidavit and her medical records. (Id. at 19-21.) She describes
how she believed her pain was a “typical side effect” of the vaccine and how she treated
with “over the counter pain medication, Biofreeze, and self-massage.” (Id. at 19.) She
describes how she began to experience limited range of motion and weakness that
made it difficult to “dress, drive, sleep, and complete tasks at home and work.” (Id. at
20.) Petitioner also describes her course of treatment, which included thermal imaging,
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an x-ray, an MRI, thirty-nine physical therapy sessions, a subacromial cortisone
injection, and two ultrasound and fluoroscopically guided intra-articular cortisone
injections. (Id.) Finally, petitioner explains that her right shoulder pain caused her to
rely on her left shoulder, resulting in an overuse injury. (Id. at 21.) Petitioner describes
her treatment course for the resulting left shoulder injury, which included an x-ray, an
MRI, two cortisone injections, and a fluoroscopically guided intra-articular cortisone
injection. (Id.) Petitioner continues to experience pain in her right shoulder, which she
treats conservatively with an at-home exercise program. (Id.)
Second, petitioner describes how she was aware of her injury, as well as the pain
and suffering she experienced. (Id. at 21-24.) Petitioner relies on both her affidavit and
medical records to describe how her injury impacted her life, including how the pain
resulted in difficulty dressing, driving, sleeping, and doing household chores. (Id. at 22-
23.) She further describes how her pain would increase while she was working and
affected her ability to perform her job duties. (Id. at 22.) In addition, petitioner
describes how her pain ranged from a 2 and 8 out of 10 following her physical therapy
sessions. (Id.)
Third, petitioner states that her care has lasted for a duration of over seven and a
half years. (Id. at 25.) She reiterates that her treatment has included primary care
visits, orthopedic specialist visits, thirty-nine physical therapy appointments, three
cortisone injections into her right arm and three into her left arm, an overuse injury to
her left arm, and continued participation in her home exercise physical therapy program.
(Id.)
Petitioner argues that her requested award is reasonable in light of comparable
SIRVA awards. (Id. at 26-27.) Specifically, petitioner cites the following reasoned
decisions as reflecting comparable facts: Hein v. Secretary of Health & Human
Services, No. 19-1943V, 2021 WL 4805232 (Fed. Cl. Spec. Mstr. Sept. 14, 2021)
(awarding $93,000.00 for actual pain and suffering); and Accetta v. Secretary of Health
& Human Services, No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec. Mstr. Mar. 31,
2021) (awarding $95,000.00 for actual pain and suffering). (Id.)
b. Respondent’s Response
Respondent disputes the amount petitioner requests for unreimbursable
expenses, arguing that she should not be compensated for expenses related to
petitioner’s left shoulder, low back, hip, or right knee pain. (ECF No. 75, n. 2.)
Respondent proposes a sum of $50,000.00 for petitioner’s actual pain and suffering.
(Id. at 9.) Respondent describes petitioner’s treatment as “mild and limited” and
emphasizes that “petitioner had a near two-month delay in seeking treatment, had mild
to moderate pain, and received [physical therapy] and two steroid injections over the
course of sixteen months, with an additional injection at about twenty-four months post-
vaccination.” (Id. at 10.) In addition, respondent contests petitioner’s inclusion of her
left shoulder injury in her damages award, arguing that “petitioner’s word alone is legally
insufficient to bootstrap an additional injury to her alleged right-sided SIRVA and inflate
her damages award in this case.” (Id.)
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Respondent contends that petitioner’s case is “factually distinguishable in
important ways from the cases that she cites in support of her claim.” (Id.) Respondent
explains that the petitioner in Hein experienced a course of treatment that “was more
severe and longer” and the petitioner was pregnant, which was determined to be a
unique circumstance. (Id. at 10-11 (citing Hien, 2021 WL 4805232, at *4).) According
to respondent, these “unique circumstances” distinguish the Hien case from the instant
case. (Id. (citing Winkle v. Sec’y of Health & Human Servs., No. 20-0485V, 2022 WL
221643, at *7 (Fed. Cl. Spec. Mstr. Jan. 11, 2022).) Next, respondent explains that, in
comparison with the instant petitioner, the petitioner in Accetta had both a longer
treatment course, which was “anticipated to be more extensive and severe,” and
“unique circumstances,” including a treatment course that exacerbated a pre-existing
anxiety disorder. (Id. at 11 (citing Accetta, 2021 WL 1718202, at *3).)
Respondent cites three cases that he argues “are more comparable to
petitioner’s injury and treatment course.” (Id.) Specifically, respondent cites Mejias v.
Secretary of Health & Human Services, No. 19-1944V, 2021 WL 5895622 (Fed. Cl.
Spec. Mstr. Nov. 10, 2021) (awarding petitioner $45,000.00 for actual pain and
suffering); Merwitz v. Secretary of Health & Human Services, No. 20-1141V, 2022 WL
17820768 (Fed. Cl. Spec. Mstr. Oct. 11, 2022) (awarding petitioner $50,000.00 for
actual pain and suffering); and Ramos v. Secretary of Health & Human Services, No.
18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021) (awarding petitioner
$40,000.00 for actual pain and suffering). (Id. at 12-13.)
c. Petitioner’s Reply
Regarding unreimbursable expenses, petitioner argues that “her left shoulder
pain occurred subsequent to, and as a result of, her right SIRVA.” (ECF No. 76, pp. 2-
4.) However, regarding her 2017 physical therapy appointments, she also contends
that “[a] simple review of the [physical therapy] records documents treatment for, and
exercises involving, her right upper extremity.” (Id.) Regarding an award for pain and
suffering, petitioner reiterates her assertion that her pain was “severe.” (Id. at 6.) In
response to what petitioner characterizes as respondent’s “conflat[ion] of duration of
symptoms with duration of formal, objective treatment,” petitioner clarifies that “her right
SIRVA has been symptomatic for over seven and a half” years. (Id. at 6-9.) She again
summarizes her “objective” treatment course, asserting that her treatment history is
most similar to Hein and Accetta. (Id. at 8-12.) Petitioner contends that the cases cited
by respondent are not comparable to her case as all three cases involved shorter
treatment histories. (Id. at 12-13.) Petitioner also stresses that the petitioner’s
treatment course in Mejias did not include physical therapy or steroid injections. (Id. at
12 (citing Mejias, 2021 WL 5895622).) Similarly, petitioner notes the Ramos petitioner
had fewer physical therapy sessions and no steroid injections. (Id. (citing Ramos, 2021
WL 688576).)
IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
an award not to exceed $250,000.” § 300aa-15(a)(4). Additionally, a petitioner may
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recover “actual unreimbursable expenses” that were “incurred before the date of
judgment awarding such expenses” and that “(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,
[and] rehabilitation . . . determined to be reasonably necessary.” § 300aa-15(a)(1)(B).
Finally, petitioners who have had their earning capacity adversely impacted due to their
vaccine injury may receive “compensation for actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and
projections.” § 300aa-15(a)(3)(A). The petitioner bears the burden of proof with respect
to each element of compensation requested. Brewer v. Sec’y of Health & Human
Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no mathematic formula for assigning a monetary value to a person’s
pain and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No.
04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (explaining that
“[a]wards for emotional distress are inherently subjective and cannot be determined by
using a mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-
0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (noting that “the
assessment of pain and suffering is inherently a subjective evaluation”). In general,
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 (Fed. Cl. Spec. Mstr. Apr. 19, 2013) (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)).
Special masters may also consider prior awards when determining what
constitutes an appropriate award of damages. 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.”);
Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(explaining that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
claims). Importantly, however, decisions regarding prior awards, although potentially
persuasive, are not binding. See Nance v. Sec'y of Health & Human Servs., No. 06–
730V, 2010 WL 3291896, at *8 (Fed. Cl. Spec. Mstr. July 30, 2010); see also Hanlon v.
Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are
neither bound by their own decisions nor by cases from the Court of Federal Claims,
except, of course, in the same case on remand.”), aff’d, 191 F.3d 1344 (Fed. Cir. 1999).
The majority of SIRVA cases resolve within the Special Processing Unit or “SPU”
which is overseen by the Chief Special Master. In a recent decision awarding damages,
the Chief Special Master explained that, as of July 1, 2023, 3,211 SIRVA cases had
been compensated within the SPU since its inception in July 2014. See Mussehl v.
Sec’y of Health & Human Servs., No. 21-0031V, 2023 WL 5203102 (Fed. Cl. Spec. Mstr
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July 12, 2023.) Among those cases, only 173 were awarded compensation based on a
reasoned decision of the special master. Id. Among the 173 decisions, the Chief
Special Master has explained that the awards for actual pain and suffering have ranged
from $40,757.00 to $265,034.87, with a median award of $92,299.83. Id. at *3.
Unsurprisingly, stipulated and proffered awards cover a much larger range—from
$5,000 for the lowest stipulated amount to $1,845,047.00 for the highest proffered
award. Id. Of course, these amounts are not limited to pain and suffering awards.
Moreover, as the Chief Special Master observed, “even though any such informally-
resolved case must still be approved by a special master, these determinations do not
provide the same judicial guidance or insight obtained from a reasoned decision.” Id. at
*2 n.8.
V. Analysis
a. Pain and Suffering
I have reviewed previous SIRVA awards, the arguments presented by the
parties, and the totality of the evidentiary record. The primary considerations informing
pain and suffering in SIRVA cases are the severity and duration of the shoulder pain.
Numerous aspects of a petitioner’s medical history potentially speak to these issues,
including the total duration of the petitioner’s pain, the total duration of petitioner’s
reduced range of motion, the length of time over which the petitioner actively treated the
condition, the duration and outcome of physical therapy, the modalities of treatment
(e.g., steroid injections, surgeries, etc.), the severity of the MRI or surgical findings,
subjective reports of pain levels, and the ultimate prognosis.
Respondent stresses that petitioner first began complaining of pain
approximately two months after she received her vaccine. (ECF No. 75, pp. 9-10.)
Prior cases have noted that a delay in seeking treatment, even while not necessarily
informative regarding onset and entitlement, may nonetheless still be relevant to
assessing the severity of pain and suffering. See, e.g., Eshraghi v. Sec’y of Health &
Human Servs., No. 19-0039V, 2021 WL 2809590, at *3 (Fed. Cl. Spec. Mstr. June 4,
2021); Marino v. Sec’y of Health & Human Servs., No. 16-622V, 2018 WL 2224736, at
*8 (Fed. Cl. Spec. Mstr. Mar. 26, 2018). In this case, however, the Chief Special Master
concluded that the evidence supports a finding that onset of petitioner’s shoulder pain
began within 48 hours of vaccination and specifically noted that “her first treatment visit
with respect to the alleged injury was not egregiously long after receiving the vaccine.”
(ECF No. 51, p. 6.) I subsequently adopted the Chief Special Master’s analysis when I
determined petitioner suffered a Table Injury of SIRVA. (ECF No. 68, p. 5.)
Accordingly, the timing of petitioner’s initial treatment is not a significant factor in
assessing the damages in this case.
On the whole, petitioner’s course of treatment for her right shoulder injury
includes thirty-nine physical therapy appointments, an MRI, one subacromial cortisone
injection, and two fluoroscopic guided intra-articular cortisone injections. (Ex. 3, pp. 38,
45; Ex. 8, pp. 1-59; Ex. 9, pp. 4, 6-7; Ex. 13, p. 5.) Petitioner’s pain fluctuated between
0 out of 10 and 8 out of 10. (Ex. 8, pp. 8, 15.) Although petitioner briefly mentioned
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right shoulder pain in her October 22, 2020 appointment with Dr. Perryman “for
evaluation of both of her shoulders and her right knee,” petitioner’s medical records
largely suggest that her right shoulder pain resolved after November 2017. (Ex. 21, p.
3.) Petitioner had a therapeutic injection on November 30, 2017. (Ex. 3, p. 38; Ex. 13,
p. 5.) Two weeks later she reported still being sore from the injection itself, but she had
near normal range of motion. At that time, Dr. Perryman still felt the therapeutic
injection would ultimately offer relief. (Ex. 13, pp. 1-2.) This marked the end of
petitioner’s formal treatment of her right shoulder condition, and she largely did not
mention her right shoulder in subsequent encounters despite seeking treatment for
other conditions, especially her left shoulder. In her most recent affidavit, she asserts
ongoing dull pain accompanied by limitations in strength and range of motion, but she
acknowledges that she has stopped seeking treatment and that her residual complaints
no longer impede her activities of daily living. (Ex. 22.)
While it is understandable petitioner would perceive her left shoulder pain as an
overuse injury, there is not preponderant evidence to support that perception. In
particular, petitioner has not cited any medical opinion to support her contention. (ECF
No. 72.) Petitioner did report her concern regarding overuse to her physician (e.g., Ex.
9, pp. 4-5); however, none of petitioner’s treating physicians offered that assessment
themselves, and her left shoulder MRI included evidence of both tearing and
degenerative changes that could otherwise explain her shoulder pain. (Ex. 9, pp. 4-5;
Ex. 13, pp. 1-4.; Ex. 20, pp. 3-4; Ex. 21, pp. 3-4, 7-8.) Petitioner is competent to testify
as to the fact of her symptoms, but not their underlying cause.3 Accord James-
Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1380 (Fed. Cir. 2021)
(explaining that “lay opinions as to causation or medical diagnosis may be properly
categorized as mere ‘subjective belief’ when the witness is not competent to testify on
those subjects”).
Petitioner and respondent referenced a total of five cases as comparable to this
petitioner’s history (petitioner cites two and respondent cites three). Petitioner urges
direct comparison to two cases awarding $93,000.00 and $95,000.00 and respondent
cites cases awarding between $40,000.00 and $50,000.00. (ECF Nos. 72, 75.)
The cases cited by respondent are unhelpful in determining an award in this
case. The petitioners in all three of the cases cited by respondent had significantly
fewer physical therapy sessions, had injuries of much shorter duration (even when
setting aside petitioner’s specific assertion that her injury persisted for over seven
years), and only one of the three petitioners received a single cortisone injection. For
example, in Miller v. Secretary of Health & Human Services, the petitioner received
three cortisone injections and underwent 25 total sessions of physical therapy and an
MRI. No.20-604V, 2022 WL 3641716, at *5 (Fed. Cl. Spec. Mstr July 22, 2022). The
petitioner in Miller delayed seeking treatment for over two months and had a significant
gap in treatment, exceeding seven months. Id. The petitioner in Miller reported mild to
moderate pain and “substantially recovered 17 months after her vaccination.” Id. at *6.
The petitioner in Miller was awarded $75,000.00, which is $25,000.00 more than
3 Petitioner works in the medical field as a CT technologist, but she is not a medical doctor. (Ex. 15.)
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respondent’s proposed award, for a shorter course of treatment, substantial delays in
treatment, and significantly less physical therapy sessions.
The cases cited by petitioner are much more comparable to this case, even after
accounting for respondent’s objection that these cases contained extenuating
circumstances not present in this case. For example, in Hein, the petitioner suffered
fluctuations in symptoms for 27 months. 2021 WL 4805232, at *5. Ultimately, the
petitioner in Hein received three cortisone injections and underwent ten physical therapy
sessions. Id. In addition, the petitioner in Hein was pregnant at the time of her injury,
and her condition was “exacerbated by the need to care for her newborn son, born
approximately two months after her vaccination, and her two-year old daughter.” Id.
Based on all of these circumstances, the petitioner in Hein was awarded $93,000.00.
Id. at *7. While the petitioner in the current case was not pregnant and only
experienced symptoms for around 23 months, she underwent nearly four times the
number of physical therapy sessions that the petitioner in Hein did. In the second case
cited by petitioner, Accetta, the petitioner underwent an MRI, ten physical therapy
sessions, and experienced symptoms that lasted around five years. 2021 WL 1718202,
at *3-4. The Accetta petitioner did not receive any cortisone injections and, while
surgery was recommended, she choose to forego such treatment due to a pre-existing
anxiety disorder. Id. at *4. While the petitioner in Accetta experienced symptoms for far
longer than the petitioner in the instant case, the petitioner in this case underwent nearly
four times the amount of physical therapy sessions and received three cortisone
injections.
In light of all of the above, I conclude that $90,000.00 represents a reasonable
award for petitioner’s pain and suffering.
b. Past Unreimbursed Expenses
In this case, petitioner claims $1,818.94 in unreimbursed expenses for copays
and mileage costs associated with medical appointments (largely physical therapy)
occurring mostly between March of 2016 and December of 2017 (two encounters were
in 2020). (ECF No. 72, p. 18.) These expenses are delineated and documented in an
appendix to petitioner’s motion labeled “Tab A”4 and “Tab B.” (ECF No. 72, pp. 32-77.)
Respondent contests the expenses associated with petitioner’s left shoulder, low back,
hip, and right knee treatment. (ECF No. 75, n. 2.) Specifically, respondent contests
expenses related to petitioner’s December 18, 2017 MRI appointment and all physical
therapy in 2017. (Id.) Petitioner argues that her left shoulder pain “occurred
subsequent to, and as a result of, her right SIRVA.” (ECF No. 76, p. 3.) In addition, she
4 Petitioner’s documentation of the claimed expenses is very confusing. Tab A includes both an itemized
list of claimed expenses and a series of supporting documents, many of which are highlighted or include
handwritten notes. Several of the receipts are redundant. For example, petitioner’s January 24, 2017
orthopedic copay is documented twice. (ECF No. 72, pp. 35-36, 68.) Numerous $20 copays from
November and December of 2017 are highlighted in the supporting documentation but not included in the
itemized list of costs. Some of the dates on the itemized list do not match the dates on the corresponding
documentation. Because the highlights and notations on the supporting documents are not self-
explanatory, only costs specifically included in petitioner’s itemized list will be considered.
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argues that, while she sought treatment for her hip, back, and knee, these appointments
also included “treatment for, and exercises involving, her right upper extremity.” (Id.)
As explained above, I have concluded that petitioner has not established her left
shoulder condition to be related to her right shoulder SIRVA. Thus, the $50 MRI copay
dated December 18, 2017, which was for petitioner’s left shoulder, will not be
reimbursed. Additionally, the orthopedic copays dated December 14, 2017, March 11,
2020, and November 5, 2020, will also not be reimbursed. Although petitioner’s right
shoulder pain may have been addressed, the records are clear that her unrelated left
shoulder pain was the primary purpose of the appointment. (Ex. 13, pp. 1-2; Ex. 20, pp.
3-4; Ex. 21, pp. 1-2.) Thus, the cost of the copay was not incurred as a result of
petitioner’s vaccine-related injury. Accord Henderson v. Sec’y of Health & Human
Servs., No. 20-1261V, 2023 WL 2728778, at *7 (Fed. Cl. Spec. Mstr. Mar. 31, 2023)
(declining to reimburse costs associated with “treatment and testing initiated by
Petitioner for multiple overlapping but distinct co-morbidities”); Miles v. Sec’y of Health &
Human Servs., No. 20-146V, 2023 WL 21155, at *9 (Fed. Cl. Spec. Mstr. Jan 3, 2023)
(declining to reimburse costs for “unrelated appointments” and “prior medications”). The
remainder of the claimed costs appear appropriate for reimbursement, with the
exception of a $295.00 payment to Inside Out Wholistic Wellness and Thermography.5
(ECF No. 72, p. 72.) Petitioner self-referred for this imaging (Ex. 7, p. 1); however,
none of the medical records indicate that this type of imaging was recommended by
petitioner’s treating physicians, that the result was useful to them, or even that any of
petitioner’s physicians were made aware of the results.6 (Id. at 2-3.) Thus, petitioner
has not substantiated that this cost was “reasonably necessary” for diagnosis or care of
her injury. § 300aa-15(a)(1)(A)(iii)(I).
I also conclude that petitioner’s request for mileage reimbursement is not
sufficiently substantiated. Petitioners may be reimbursed for travel, including mileage
reimbursement when using their own vehicle. See, e.g., Williams v. Sec’y of Health &
Human Servs., No. 90-2239V, 1996 WL 608455, at *1 (Fed. Cl. Spec. Mstr. Oct. 10,
1996). In this case, however, petitioner’s presentation is limited to her counsel’s chart,
appended to petitioner’s brief, calculating the distance between her home and her
providers’ offices. (ECF No. 72, p. 75-77.) Though it would be tempting to merely
assume the calculations reflect reality, the record does not include even the barest of
sworn statements in petitioner’s affidavits confirming that she completed these trips
using her own vehicle or that each trip consisted of the type of direct roundtrip from
5 Thermography is “a technique wherein an infrared camera is used to photographically portray the
surface temperatures of the body, based on the self-emanating infrared radiation; sometimes employed
as a means of diagnosing underlying pathologic processes, such as breast tumors.” Thermography,
DORLAND’S MEDICAL DICTIONARY ONLINE, https://www.dorlandsonline.com/dorland/definition?id=49629
(last visited Nov. 16, 2023).
6 The report includes the following boxed warning: “This Report is intended for use by trained health
providers to assist in evaluation, diagnosis, and treatment. It is not intended for use by individuals for
self-evaluation or self-diagnosis. This Report does not provide a diagnosis of illness, disease or other
condition. Clinical Thermology is a screening procedure subject to both false negative and false positive
results. It is most reliable when a stable baseline is obtained followed by regular repetitive screening for
changes. Results must be interpreted in the context of historic and current clinical information.” (Ex. 7, p.
4.)
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home and back as calculated. Accord Morgan v. Sec’y of Health & Human Servs., No.
20-1286V, 2022 WL 4717958, at *8 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (observing the
need to substantiate use of a personal vehicle and finding that, although mileage
calculations may be paid in other cases, ambiguities presented by the circumstances
required further explanation).
In light of all of the above, I conclude that petitioner should be reimbursed costs
totaling $1,207.00.
VI. Conclusion
After weighing the evidence of record within the context of this Program, I find
that $90,000.00 represents a reasonable and appropriate award for petitioner’s actual
pain and suffering and $1,207.00 represents a reasonable and appropriate award for
petitioner’s past unreimbursed expenses. I thus award petitioner a lump sum
payment of $91,207.00, representing compensation for actual pain and suffering
and past unreimbursed expenses in the form of a check payable to petitioner.
This amount represents compensation for all damages available under Section 15(a).
The Clerk of the court is directed to enter judgment in accordance with this decision. 7
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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