VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00342
Package ID: USCOURTS-cofc-1_19-vv-00342
Petitioner: Mong Ha Vivian Cheung
Filed: 2019-03-05
Decided: 2024-06-12
Vaccine: Tdap
Vaccination date: 2016-03-07
Condition: shoulder injury induced by vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 93710

AI-assisted case summary:
Mong Ha Vivian Cheung, born in 1958, filed a petition on March 5, 2019, alleging that a tetanus-diphtheria-acellular pertussis (Tdap) vaccine administered on March 7, 2016, caused her to suffer a shoulder injury related to vaccine administration (SIRVA). Initially, the respondent, the Secretary of Health and Human Services, contested entitlement, arguing that Ms. Cheung's pre-existing neck pain that radiated into her arm precluded a SIRVA diagnosis and that she had not established causation-in-fact for an off-Table claim due to a lack of an expert report. However, after Ms. Cheung submitted an expert report from Dr. Marko Bodor, who opined that her neck pain was separate from her post-vaccination shoulder pain and that she qualified for SIRVA, the respondent conceded entitlement. The case then proceeded to a damages adjudication before Special Master Christian J. Moran.

Ms. Cheung's medical history included right neck pain in 2012, with an MRI revealing a bulging disc at C5-6. On the day of vaccination, March 7, 2016, she complained of neck pain and was referred for physical therapy. The day after vaccination, she reported arm pain, and her doctor assessed her with acute pain of the right shoulder, likely a side effect of the Tdap vaccine. She experienced pain that made driving and dressing difficult and woke her from sleep. She received treatment including physical therapy and acupuncture in the United States and Hong Kong over several years. Records indicate her neck problem resolved by April 4, 2016, but shoulder pain persisted. An MRI of her right shoulder on April 19, 2016, showed inflammation in the bursa but an intact rotator cuff. By mid-August 2016, Ms. Cheung reported her condition only slightly affected her quality of life, and a provider noted her shoulder pain as "residual." By September 2016, she reported no pain with activities of daily life. In January 2017, she reported no pain in her right shoulder, though she experienced pain in her right shoulder and cervical spine rated 5-6 out of 10, with an overall improvement of 80%. Her care in early 2017 focused primarily on neck pain.

In September 2023, an MRI of her right shoulder revealed a rotator cuff tear. Dr. Bodor reviewed this MRI and indicated Ms. Cheung had a moderate disability. The Secretary's expert, Dr. Bishop, opined that the rotator cuff tear was due to age-related degenerative changes and not the vaccine injury, a conclusion supported by the fact that Ms. Cheung's initial shoulder MRI in 2016 showed an intact rotator cuff and that she reported no shoulder pain in January 2017. Special Master Moran found that Ms. Cheung's SIRVA largely resolved by March 2017 and that the subsequent rotator cuff tear was due to age-related degenerative changes, not the vaccine injury. Therefore, compensation for future pain and suffering or future medical expenses was denied.

The Special Master awarded Ms. Cheung $93,710.66. This amount comprised $90,000 for past pain, suffering, and emotional distress, $1,884.37 for past unreimbursed medical expenses (limited to treatment through January 7, 2017, as her SIRVA resolved around March 2017), and $1,826.29 for a Medicaid lien. The award for past pain and suffering was set at $90,000, reflecting the finding that her SIRVA was resolved about one year after vaccination and that the rotator cuff tear was age-related. Petitioner's counsel was Michael Firestone of Marvin Firestone and Associates, and respondent's counsel was Michael J. Lang of the United States Department of Justice. The decision was issued by Special Master Christian J. Moran on June 12, 2024.

Theory of causation field:
Petitioner Mong Ha Vivian Cheung, born in 1958, received a Tdap vaccine on March 7, 2016, and alleged a shoulder injury related to vaccine administration (SIRVA). The respondent initially contested entitlement, citing pre-existing neck pain and lack of expert opinion. Petitioner submitted an expert report from Dr. Marko Bodor, who opined that the neck pain was separate from the shoulder injury and that Ms. Cheung qualified for SIRVA. The respondent conceded entitlement. In the damages phase, the Special Master found that Ms. Cheung's SIRVA largely resolved by March 2017. A subsequent rotator cuff tear diagnosed in September 2023 was attributed by the respondent's expert, Dr. Bishop, to age-related degenerative changes, a conclusion supported by the Special Master, who noted Ms. Cheung's initial MRI showed an intact rotator cuff and she reported no shoulder pain in January 2017. Petitioner's counsel was Michael Firestone, and respondent's counsel was Michael J. Lang. Special Master Christian J. Moran issued a decision on June 12, 2024, awarding $93,710.66, including $90,000 for past pain and suffering, $1,884.37 for past unreimbursed medical expenses, and $1,826.29 for a Medicaid lien, denying compensation for future damages due to the SIRVA resolving in 2017 and the rotator cuff tear being age-related.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_19-vv-00342-0
Date issued/filed: 2023-05-03
Pages: 3
Docket text: PUBLIC ORDER/RULING (Originally filed: 3/30/2023) regarding 73 Ruling on Entitlement Signed by Special Master Christian J. Moran. (dksc) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00342-UNJ Document 74 Filed 05/03/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
MONG HA VIVIAN CHEUNG, *
* No. 19-342V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: March 30, 2023
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Michael Firestone, Marvin Firestone and Associates, San Mateo, CA, for petitioner;
Kyle E. Pozza, United States Dep’t of Justice, Washington, DC, for respondent.
RULING FINDING ENTITLEMENT TO COMEPNSATION1
Mong Ha Vivian Cheung alleges that a tetanus-diphtheria-acellular pertussis (“Tdap”)
vaccine harmed her shoulder. Ms. Cheung seeks compensation by claiming either she suffered a
Table injury or an off-Table injury. Pet., filed Mar. 5, 2019, ¶ 24-25. The evidence
preponderates in favor of entitlement.
* * *
Before receiving the Tdap vaccination, Ms. Cheung developed pain in her neck. Exhibit
15 at 22-23. The pain also traveled from her neck into her arm. Exhibit 11 at 188-89.
Ms. Cheung also complained of neck pain on March 7, 2016, the date she received the
Tdap vaccine. Exhibit 2 at 148-51. Her doctor referred her to physical therapy for neck pain.
Id.
The next day, Ms. Cheung complained about arm pain through a telephone call to her
doctor’s office. Exhibit 2 at 147. Over the next few weeks, Ms. Cheung complained via calls
several times and had one appointment in the office.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this ruling on its
website (http://www.cofc.uscourts.gov/aggregator/sources/7). This posting will make the ruling
available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days
to file a motion proposing redaction of medical information or other information described in 42
U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the
document posted on the website.

Case 1:19-vv-00342-UNJ Document 74 Filed 05/03/23 Page 2 of 3
Other than establishing that Ms. Cheung’s shoulder problem lasted more than six months,
the remaining medical records do not affect her eligibility for compensation. See Resp’t’s Rep.,
filed Mar. 31, 2022.
* * *
After Ms. Cheung submitted evidence on various dates, the parties attempted to resolve
the case. Settlement efforts did not succeed. Thus, the Secretary presented his assessment of the
evidence. In the Secretary’s view, Ms. Cheung was not entitled to compensation. With respect
to her on-Table claim, the Secretary contended that her history of neck pain that radiated into her
shoulder and arm precluded a finding that she suffered a shoulder injury induced by vaccine
administration (“SIRVA”). Resp’t’s Rep. at 7, citing 42 C.F.R. § 100.3(c)(10). With respect to
her off-Table claim, the Secretary maintained that Ms. Cheung had not established causation-in-
fact because she did not present an expert report. Id. at 8.
Ms. Cheung supported her claim by filing a report from Marko Bodor, a specialist in
physical medicine and rehabilitation. Exhibit 37. Dr. Bodor opined that Ms. Cheung’s problem
in her neck (cervical spine) was separate from her problem in her shoulder that developed after
vaccination. Id. at 3-4. Dr. Bodor concluded that Ms. Cheung qualified for SIRVA.
In a December 7, 2022 status conference, the Secretary was given an additional 30 days
to respond, including proposing a date for any expert report. The Secretary presented his
position in an Amended Report, filed on March 6, 2023, which included a summary of Dr.
Bodor’s opinion. There, the Secretary stated that he “maintains that petitioner has not met her
burden of proof under the Vaccine Act, for the reasons set forth in his initial Rule 4(c) Report.
However, in light of petitioner’s expert report and the evidence filed therewith, respondent no
longer wishes to defend against petitioner’s entitlement claim.” Id. at 8.
The parties agreed that a decision regarding entitlement should be based upon the record
during a status conference held on March 23, 2023.
* * *
Ms. Cheung has established that she suffered a SIRVA. In the Secretary’s initial report,
he challenged entitlement based upon only one of four criteria. This disputed criterion
concerned the presence of pre-existing shoulder pain.
After that assessment, Ms. Cheung filed evidence that differentiated her two conditions.
Exhibit 37. The Secretary has not rebutted Dr. Bodor’s opinion with evidence. Thus, the
evidence favoring a finding of compensation is more persuasive than the evidence against a
finding of compensation. See Guidelines, Section III, Chapter 2.B. (“If . . . petitioner files an
expert report prior to the Rule 4 report deadline, respondent’s Rule 4 report must include at least
one expert report, unless respondent does not contest entitlement”).
Accordingly, Ms. Cheung is entitled to compensation.
2

Case 1:19-vv-00342-UNJ Document 74 Filed 05/03/23 Page 3 of 3
Ms. Cheung shall file a status report regarding the resolution of damages by Friday,
May 12, 2023.
Any questions regarding this order may be directed to my law clerk, Debbie Chu, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-00342-1
Date issued/filed: 2024-06-12
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 5/21/2024) regarding 108 DECISION of Special Master Signed by Special Master Christian J. Moran. (Attachments: # (1) Appendix Court Exhibit 1001)(ceo) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * *
MONG HA VIVIAN CHEUNG, *
* No. 19-342V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: May 21, 2024
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * *
Michael Firestone, Marvin Firestone and Associates, San Mateo, CA, for
petitioner;
Michael J. Lang, United States Dep’t of Justice, Washington, DC, for respondent.
DAMAGES DECISION AWARDING COMEPNSATION1
Mong Ha Vivian Cheung previously established that a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine harmed her shoulder, causing her to suffer a
shoulder injury induced by vaccine administration (“SIRVA”). The parties
disputed the amount of compensation to which she is entitled. She is awarded
$93,710.66.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (http://www.cofc.uscourts.gov/aggregator/sources/7). This posting will make the
decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have
14 days to file a motion proposing redaction of medical information or other information
described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will
appear in the document posted on the website.

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 2 of 15
I. Events in Ms. Cheung’s Life
A. Pre-Vaccination History
Ms. Cheung was born in 1958 in Hong Kong. Exhibit 1 at 1. Information
about when she came to the United States is conflicting as a record created in 2017
states that she immigrated to the United States 20 years earlier whereas a record
created in 2019 states that she moved to United States in 2015. Exhibit 22 at 222,
439.
In 2012, Ms. Cheung underwent an MRI because of right neck pain. The
MRI detected a bulging disc at C5-6. Exhibit 22 at 511.
B. Vaccination and Next Two Months
Ms. Cheung received the Tdap vaccine on March 7, 2016. She complained
about neck pain during this appointment and was referred to physical therapy for
neck pain. Exhibit 2 at 148-51.
The following day after her vaccination, Ms. Cheung complained about arm
pain through a telephone call to her doctor’s office. Exhibit 2 at 147. Over the
next few weeks, Ms. Cheung complained of pain at the injection site and her
doctor assessed her with “[a]cute pain of right shoulder, likely [side effect] of
Tdap.” Exhibit 2 at 24. She reported the pain made it difficult for her to drive and
get dressed. Id. at 139. The pain even woke up her from her sleep at night. Id.
Ms. Cheung reported that her neck problem had resolved during a physical
therapy session on April 4, 2016. Exhibit 21 at 4. However, due to pain in her
right shoulder, she continued to seek care.
Ms. Cheung started acupuncture at a facility in the United States, named
Alex Lau Acupuncture & Herbs, on April 11, 2016. She had eight sessions of
acupuncture from April 11, 2016 to May 24, 2016. Although these acupuncture
records have been reviewed, they provide no details about the extent of injury or
the treatment Ms. Cheung received. See Exhibit 6, passim.
Concurrently with the acupuncture, Ms. Cheung received physical therapy.
Exhibit 2 at 128-30. While she was receiving physical therapy, Ms. Cheung
underwent an MRI of her right shoulder. Her rotator cuff was intact. Exhibit 2 at
40 (MRI, performed on Apr. 19, 2016); see also id. at 121. The MRI also detected
inflammation in the bursa. Id. at 40. In a follow-up, Ms. Cheung informed the
doctor that her pain was improving on its own. Id. at 121. In a May 19, 2016
2

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 3 of 15
session with a physical therapist, Ms. Cheung stated that she had retained a lawyer
and planned to sue a pharmaceutical company. Id. at 19.
The acupuncture and physical therapy in the United States ended during
May 2016.
C. Summer 2016 in Hong Kong
On May 30, 2016, Ms. Cheung had an acupuncture session at Feng Jiu in
Hong Kong. Exhibit 9 at 1. The set of records from Feng Jiu are in Chinese. See
Exhibit 9.
While in Hong Kong, Ms. Cheung also sought treatment from another
facility, known as “acupuncture in Hong Kong.” The records from this institution
are written mostly in Chinese, although there is a handwritten notation saying in
English “right shoulder pain.” See Exhibit 8, passim. These sessions ran from
June 10, 2016 through August 1, 2016.
A third institution from which Ms. Cheung received care was Canossa
Hospital. At Canossa Hospital, Ms. Cheung underwent physiotherapy. When she
started physiotherapy on May 8, 2016, she was documented to have a full range of
motion in her right shoulder. Exhibit 5 at 1. The last of seven physiotherapy
sessions at Canossa Hospital occurred on August 11, 2016.
D. Remainder of 2016 in the United States
By August 17, 2016, Ms. Cheung had returned to United States and attended
a session of physical therapy. Exhibit 11 at 3-4. She told the physical therapist
that her condition was only slightly affecting the quality of her life. Id.
Ms. Cheung sought care from North East Medical Services on August 31,
2016 because of diabetes and she reported pain in her neck and lower back. The
shoulder pain was described as “residual.” Exhibit 2 at 101. During this
appointment, the doctor said that Ms. Cheung was not following the dietary plan
for diabetes but was interested in diabetes education. Id. at 103. She also declined
any treatment for tuberculosis. Ms. Cheung sought a referral for physical therapy.
In the next physical therapy session, Ms. Cheung reported that she had no
pain with activities of daily life. Exhibit 11 at 24 (Sep. 6, 2016). Ms. Cheung then
attended a few more sessions of physical therapy.
This course of physical therapy ended on September 21, 2016. The physical
therapist’s record states that Ms. Cheung was discharged due to poor compliance.
3

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 4 of 15
Exhibit 11 at 39. However, in the litigation, Ms. Cheung challenged this
characterization, noting that she had attended five of six physical therapy sessions.
Pet’r’s Reply, filed Nov. 6, 2023, at 11.
In the next month, Ms. Cheung had two more acupuncture sessions at Alex
Lau. Exhibit 6 at 1. Again, the acupuncture records provide almost no information
about the nature of Ms. Cheung’s injury.
On November 9, 2016, Ms. Cheung sought assistance from a physical
therapist for pain in her cervical spine and right shoulder. The physical therapist
noted that Ms. Cheung is a “poor historian regarding pain.” Exhibit 11 at 92-95.
However, the basis for the physical therapist’s opinion about the accuracy of Ms.
Cheung’s reporting is not clear. In any event, the physical therapist stated that Ms.
Cheung’s problems were having a moderate impairment to the quality of her life.
E. Early 2017 in Hong Kong
At the end of 2016, Ms. Cheung was in Hong Kong. She had one
acupuncture visit at Feng Jiu Chinese Medical Clinic on December 29, 2016. She
also had two visits at Feng Jiu in the first week of January 2017. Exhibit 10 at 3.
F. January 2017 through November 2017 in the United States /
Chinese Hospital
On January 27, 2017, Ms. Cheung saw a physical therapist and reported that
she had no pain in her right shoulder. Exhibit 11 at 158. The pain, instead, was in
her right shoulder and cervical spineand Ms. Cheung rated the pain as a 5-6 out of
10.2 Id. Overall, her improvement in symptoms was 80%.
By February 15, 2017, Ms. Cheung had completed 10 sessions of physical
therapy. The physical therapist expected that she would continue to improve with
a home exercise program. Exhibit 11 at 183.
Ms. Cheung established care with providers at the Chinese Hospital Gellert
Health Services on March 3, 2017. Exhibit 22 at 495. According to its website,
the Chinese Hospital is “a community-owned, not-for-profit organization, [that]
exists primarily to deliver quality health care in a cost effective way, responsive to
2 The medical records contain a history of no pain in her right shoulder and a history of
pain in her right shoulder.
4

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 5 of 15
the community’s ethnic and cultural uniqueness.”3 After Ms. Cheung started to see
medical providers at the Chinese Hospital, the medical records are more extensive.
See Exhibit 22, passim.
In the March 3, 2017 initial appointment at Chinese Hospital, Ms. Cheung
reported chronic lower back pain and neck pain. Exhibit 22 at 495. She was
referred to a physical therapist for chronic neck pain. Id. at 484.
Between March 17, 2017 and May 30, 2017, Ms. Cheung had eight sessions
of physical therapy. The reason for the physical therapy was cervical pain.
Exhibit 13, see also Exhibit 22 at 346. In this context, Ms. Cheung stated that she
could not recall a date of injury for her problem in her cervical spine. Exhibit 22 at
184.
Apparently as part of Ms. Cheung’s introduction to the Chinese Hospital,
she had an appointment for preventative medicine on July 7, 2017. Although this
medical record discusses some problems, such as diabetes, chronic shoulder pain is
not listed. Exhibit 22 at 452-453.
Medical personnel at the Chinese Hospital frequently monitored Ms.
Cheung’s diabetes. See, e.g., Exhibit 22 at 421. The reports about diabetes do not
say anything about Ms. Cheung’s right shoulder, although these appointments may
not have been intended to document any shoulder problems.
In fall 2017, the medical records about shoulder problems are not entirely
consistent. In a September 15, 2017 session of physical therapy, Ms. Cheung was
noted to have a normal range of motion in her right shoulder. Exhibit 11 at 189-
91, see also Exhibit 22 at 188. The purpose of this physical therapy was for Ms.
Cheung’s cervical spine. On the other hand, a doctor in the Chinese Hospital
stated that Ms. Cheung had bilateral shoulder pain on October 2, 2017. Exhibit 22
at 416-17. The plan was to continue physical therapy and acupuncture. The
physical therapy course ended on November 6, 2017. Exhibit 11 at 243.
An acupuncture session occurred at Zhao’s in Hong Kong on October 10,
2017. Exhibit 7 at 2. Ms. Cheung had nine more visits at this facility through
February 7, 2018. Id.
The visits at Zhao’s Acupuncture were not continuous in that Ms. Cheung
also received more treatment at the Chinese Hospital. She reported neck pain on
3 This exhibit will be marked as Court Exhibit 1001.
5

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 6 of 15
October 27, 2017. Exhibit 22 at 411. On November 7, 2017, Ms. Cheung again
reported neck pain and stated that she was feeling better after acupuncture. Id. at
406.
G. Early 2018 in Hong Kong
From December 28, 2017 through April 10, 2018, Ms. Cheung had multiple
acupuncture visits at both Feng Jiu Acupuncture and Zhao’s Acupuncture. See
Exhibit 10 at 4, Exhibit 7 at 1, 3. These records do not particularly assist in
understanding the nature and quality of any pain in Ms. Cheung’s right shoulder.
H. Care in 2018 in the United States
On May 12, 2018, Ms. Cheung returned to the Chinese Hospital. She
reported pain in her right shoulder and pain in her neck. Exhibit 22 at 292. The
nurse practitioner noted a diagnosis of bursitis of right shoulder from her 2016
MRI. For her right shoulder and neck pain, the nurse practitioner advised her to
exercise, to attend physical therapy sessions, and to apply ice to the affected areas
to cool down sore muscles or numb the pain. The nurse practitioner also
recommended her to take acetaminophen to alleviate her symptoms.
Unexpectedly, Ms. Cheung went back to the Chinese Hospital on May 23,
2018, reporting that she had a motor vehicle accident yesterday. Exhibit 22 at 289-
90. She reported pain in her neck and wrist. She was referred for acupuncture.
Records for any acupuncture treatment in the United States are not readily
apparent.4
Ms. Cheung underwent an annual exam at the Chinese Hospital on
September 24, 2018. Exhibit 22 at 277. She reported chronic neck and shoulder
pain. The nurse practitioner discussed conservative management, encouraging Ms.
Cheung to exercise, to attend physical therapy sessions, and to apply ice to the
affected areas to cool down sore muscles or numb the pain. The nurse practitioner
recommended follow-up appointments for chronic neck pain and right shoulder
pain.
I. 2019
Except for the periodic appointments for diabetes monitoring, Ms. Cheung
sought doctors relatively infrequently in 2019. From May to August, Ms. Cheung
had multiple acupuncture visits in Hong Kong. Exhibit 14; Cf. Exhibit 1
4 Ms. Cheung received some acupuncture while in Hong Kong. See Exhibit 7 at 1, 3.
6

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 7 of 15
(petitioner’s declaration, dated Sep. 25, 2019) ¶ 17 (stating Ms. Cheung was in
Hong Kong “between May and mid-August this year (2019)”). She also had
acupuncture in the United States. An invoice from Ann-Shine Health Center,
dated August 20, 2019, charges Ms. Cheung for 10 visits without providing any
details about the nature of the treatment. Exhibit 46 at 4.
Ms. Cheung had an annual exam on October 1, 2019. The fifth item on the
list of problems affecting Ms. Cheung was chronic neck and shoulder pain. She
was advised to follow up with acupuncture for these problems. Exhibit 22 at 222-
24. Whether Ms. Cheung immediately resumed acupuncture is unclear.
J. 2020
Ms. Cheung presented invoices from appointments with an acupuncturist in
the United States, potentially for treatment in 2019 or 2020. See Exhibit 46 at 2
(invoice dated January 7, 2020 for six visits), Id. at 3 (invoice dated April 9, 2020
for six visits). A greater amount of information would have helped Ms. Cheung
demonstrate whether she was experiencing right shoulder pain during this time.
It appears that sometime after April 2020, Ms. Cheung left the United States
and returned to reside in Hong Kong. See Exhibit 41(describing leaving this
country during the pandemic); see also Pet’r’s Mot. at 28 (asserting that Ms.
Cheung “had not returned to California during the entirety of the Covid-19
pandemic and associated quarantine restrictions”). From August 2020 until
November 2020, Ms. Cheung underwent eight sessions of physiotherapy in Hong
Kong. Exhibit 58. During this period, an acupuncturist recommended Ms. Cheung
continue her acupuncture. Exhibit 33. At the end of the course of physiotherapy,
Ms. Cheung was reported to have a full range of motion. Exhibit 34.
On November 23, 2020, Annie Tsang anticipated that Ms. Cheung might
require six to eight additional treatment sessions. Exhibit 49 at 1-2. Whether Ms.
Cheung immediately obtained more treatment is not readily apparent.
K. 2021
In 2021, Ms. Cheung was apparently living in Hong Kong. She submitted
documents showing that she had nine sessions of acupuncture at Feng Jui between
April 7, 2021 and August 3, 2021. Exhibit 36. These acupuncture sessions largely
overlapped with seven sessions of physiotherapy from June 10, 2021 to November
16, 2021. Exhibit 43. The parties otherwise did not cite records created by a
medical doctor for Ms. Cheung in 2021.
7

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 8 of 15
L. 2022
Treatment records from 2022 are similarly thin. While the records show that
she attended 12 sessions of physiotherapy for right shoulder pain and upper arm,
they do not reveal the extent of the treatment. See Exhibit 45, Exhibit 51.
M. 2023
On January 17, 2023, Ms. Cheung had an acupuncture session at Mui Hei
Hung acupuncture in Hong Kong. Exhibit 42 at 1. This appears to be the only
visit to this facility.
On February 8, 2023, Ms. Cheung began a course of physiotherapy at Tang
Shiu Kin Hospital. She had eight visits, ending on April 17, 2023. Exhibit 60 at 1-
6. On February 9, 2023, a few more months of treatment were recommended.
Exhibit 44.
By June 2023, Ms. Cheung had returned to the United States, potentially for
a visit. From June 26, 2023 to July 29, 2023, Ms. Cheung had six sessions at Ann-
Shine Acupuncture. Exhibit 57 at 1-6.
Ms. Cheung had a telemedicine appointment with Kelly Qin, FNP, on July
28, 2023. Exhibit 47, Exhibit 56 at 2. From the information communicated during
this telemedicine appointment, Ms. Qin assessed Ms. Cheung as having right
shoulder pain and referred her for another round of physical therapy. Id.
As part of this litigation, Ms. Cheung estimated that she had recovered to
70-80%. Exhibit 59 (affidavit dated August 30, 2023). She stated that a physical
therapy told her that she needed to live with the pain.
On September 7, 2023, Ms. Cheung underwent an MRI of her right
shoulder. Exhibit 64. The MRI revealed a tear in her rotator cuff. Id.
A doctor whom Ms. Cheung retained for this litigation, Marco Bodor,
reviewed the results of the MRI on September 11, 2023. Exhibit 61 at 2. Dr.
Bodor indicated that Ms. Cheung’s QDASH score was 51, meaning she had a
moderate disability.
In a letter to Ms. Cheung’s attorney, Dr. Bodor recommended a TENEX
procedure for Ms. Cheung. Exhibit 63.
8

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 9 of 15
II. Procedural History
Represented by Attorney Michael Firestone, Ms. Cheung began this case by
filing her petition on March 5, 2019. She alleged that the Tdap vaccine caused her
to suffer a SIRVA. The case was assigned to the Special Processing Unit. Ms.
Cheung periodically filed factual materials.
The parties attempted to resolve the case informally from August 14, 2020
through January 31, 2022. However, these efforts did not succeed. The Secretary
maintained that Ms. Cheung was not entitled to compensation. Resp’t’s Rep., filed
March 31, 2022.
To facilitate the process of obtaining useful reports from experts, a set of
instructions were proposed on July 6, 2022. These draft instructions became final
after neither party objected to them. Ms. Cheung supported her claim by filing a
report from Dr. Bodor. Exhibit 37. Dr. Bodor opined that Ms. Cheung’s history of
cervical pain was separate from her shoulder pain. Thus, Dr. Bodor stated that Ms.
Cheung fulfilled the regulatory definition of SIRVA. Id.
The Secretary was given an opportunity to respond to Dr. Bodor’s report.
However, the Secretary declined to invest further resources. Resp’t’s Amended
Report, filed March 6, 2023; C.f. Exhibit A at 4 (report of Dr. Bishop: “the records
support a finding that petitioner did sustain a SIRVA injury”). Accordingly, Ms.
Cheung was found to be entitled to compensation. Ruling, issued Mar. 30, 2023.
The parties again attempted to resolve the case but remained apart. As noted
below, the primary disputed element of compensation concerns pain and suffering.
The parties requested a formal adjudication of this item as well as other aspects of
compensation. Rest’s Status Rep., filed June 15, 2023.
The parties developed their positions regarding the appropriate amount of
compensation. Ms. Cheung submitted some documents on August 1, 2023 and her
brief on August 31, 2023. The Secretary advanced his position through a brief
filed on October 30, 2023.
Ms. Cheung replied on November 6, 2023. With her reply, she submitted a
letter from Dr. Bodor. Exhibit 63. The Secretary expressed concern that Ms.
Cheung was submitting new evidence with her reply brief. To remove any
prejudice, the Secretary was given an opportunity to seek a physical examination
by a doctor whom the Secretary had retained. Alternatively, the Secretary could
present a report from an expert about the opinions presented by Dr. Bodor.
9

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 10 of 15
The Secretary responded to Dr. Bodor’s opinions by filing a report from a
competing expert, Dr. Bishop. Exhibit A. The Secretary incorporated Dr.
Bishop’s opinions into his supplemental brief, filed April 8, 2024.
Ms. Cheung had the final word by submitting a second reply brief on May 9,
2024. With the submission of the reply, the question of compensation is ready for
adjudication.
III. Standards for Adjudication
A petitioner is required to establish her case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence standard
requires a “trier of fact to believe that the existence of a fact is more probable than
its nonexistence before [he] may find in favor of the party who has the burden to
persuade the judge of the fact's existence.” Moberly v. Sec’y of Health & Hum.
Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted). Proof of
medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931
F.2d 867, 873 (Fed. Cir. 1991).
Distinguishing between “preponderant evidence” and “medical certainty” is
important because a special master should not impose an evidentiary burden that is
too high. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379-80 (Fed.
Cir. 2009) (reversing special master's decision that petitioners were not entitled to
compensation); see also Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357
(Fed. Cir. 2000); Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed.
Cir. 1993) (disagreeing with dissenting judge's contention that the special master
confused preponderance of the evidence with medical certainty).
IV. Analysis
Ms. Cheung has broadly claimed compensation for three categories. They
are (A) pain, suffering, and emotional distress (past and future), (B) unreimbursed
expenses (past and future), and (C) the Medicaid lien.
A. Pain, Suffering, and Emotional Distress
The Vaccine Act states that compensation shall include “For actual and
projected pain and suffering and emotional distress from the vaccine-related injury,
an award not to exceed $250,000.” 42 U.S.C. § 300aa–15(a)(4). Factors relevant
to this element of compensation are “[(1)] the ability to understand the injury, i.e.,
the injured’s mental faculties are intact; [(2)] the degree of severity of the injury;
and [(3)] the potential number of years the individual is subjected to the injury.”
10

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 11 of 15
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).
1. Past Pain, Suffering, and Emotional Distress
The parties differ on the reasonable amount of compensation for Ms.
Cheung’s past pain, suffering, and emotional distress. Ms. Cheung proposes
$150,000. Pet’r’s Mot., filed Aug. 31, 2023, at 18. The Secretary proposes
$90,000. Resp’t’s Resp., filed Oct. 30, 2023, at 7. Each party cites cases that she
or he contend supports the outcome.
Ms. Cheung has largely failed to substantiate her proposed amount. Taken
as a whole, the evidence does not support a finding that Ms. Cheung has incurred
long-lasting or severe pain, suffering, or emotional distress.
From March 7, 2016 to approximately August 17, 2016, records support a
finding that Ms. Cheung was having shoulder problems. She complained to
doctors. See Exhibit 2 at 24, Exhibit 8, passim, Exhibit 21 at 4. The doctors
reacted to her complaints by, among other things, ordering an MRI, which did not
show any structural problems in Ms. Cheung’s shoulder. Exhibit 2 at 120-21. She
went to physical therapy and acupuncture in the United States. Exhibit 2 at 128-
31, Exhibit 6. In Hong Kong in the summer 2016, she went to acupuncture at two
places (Feng Jiu and Acupuncture in Hong Kong). Exhibits 8-9. She also went to
physiotherapy. Exhibit 5 at 3. All this treatment suggests that when Ms. Cheung
suffers an injury, she seeks medical assistance.
Ms. Cheung’s shoulder problem abated, starting in mid-August 2016. She
told a physical therapist that her problem only slightly affected her quality of life.
Exhibit 11 at 4 (Aug. 17, 2016). A medical provider stated that any shoulder pain
was “residual” on August 31, 2016. Exhibit 2 at 101. Ms. Cheung stated that she
was not having pain with her activities of daily life. Exhibit 11 at 24 (Sep. 6,
2016). These records are consistent in showing that around August – September
2016, Ms. Cheung’s symptoms largely, if not entirely, improved. A slightly later
record also corroborates Ms. Cheung’s improvement. See Exhibit 11 at 158
(January 27, 2017: no right shoulder pain).
In the first half of 2017, Ms. Cheung sought care primarily for a neck
problem. When she started as a patient at the Chinese Hospital, she reported
chronic neck pain. Exhibit 22 at 495 (Mar. 3, 2017). She was, accordingly,
referred to physical therapy for neck pain. Id. at 484. The physical therapy was on
her cervical spine. Exhibit 13. The lack of complaints about a shoulder problem
11

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 12 of 15
tends to show that Ms. Cheung was not having shoulder pain. C.f. Pet’r’s Mot. at
28 (recognizing that Ms. Cheung’s neck condition “is not part of her claim”).
Thus, any award for past pain, suffering, and emotional distress should be based
upon the recognition that Ms. Cheung’s SIRVA was resolved about one year after
the March 7, 2016 vaccination.
Ms. Cheung argues that her SIRVA has persisted for years and years. A
duration of multiple years has not been established with persuasive evidence.
Although in November 2023 Dr. Bodor stated that Ms. Cheung “has ongoing
shoulder pain and disability since a TDAP vaccination provided to her right
shoulder on 3/7/16,” Exhibit 63 at 1, Dr. Bodor does not possess first-hand
knowledge of Ms. Cheung’s shoulder condition for the previous seven years. This
lack of knowledge reduces the value of Dr. Bodor as a treating physician. See
Solak v. Sec’y of Health & Hum. Servs., No. 14-869V, 2020 WL 9173158, at *19
(Fed. Cl. Spec. Mstr. Feb. 19, 2020) (special master declined to credit treater’s
recitation of an allergic reaction that came from petitioner’s history); Rothenberg
v. Sec’y of Health & Hum. Servs., No. 15-696V, 2018 WL 2731639, at *16 (Fed.
Cl. Spec. Mstr. Apr. 19, 2018) (distinguishing what a patient says about a
diagnosis from a doctor’s determination of diagnosis). Moreover, Dr. Bodor’s first
expert report, which recites information about treatment records, does not
persuasively opine on the duration of Ms. Cheung’s shoulder problem. See Exhibit
37.
Ms. Cheung may fairly point to some medical records documenting a
complaint about shoulder pain. For example, at the Chinese Hospital on October
2, 2017, Ms. Cheung reported bilateral shoulder pain. Exhibit 22 at 415-17. But,
the basis for this report is not readily apparent as few, if any, medical records
discuss left shoulder pain.
An evaluation of complaints about right shoulder pain occurring after 2018
is confounded by the discovery of a rotator cuff tear during the September 7, 2023
MRI. Exhibit 64. The expert retained by the Secretary, Dr. Bishop, persuasively
explained that Ms. Cheung “has a clear structural reason for her shoulder pain- her
full thickness rotator cuff tear.” Exhibit A at 4. The rotator cuff tear, itself, was
“due to age-related degenerative changes in the shoulder.” Id. at 6.
After the Secretary presented the report from Dr. Bishop, Ms. Cheung
argued that the SIRVA-induced shoulder problem could have been a substantial
factor in her development of a torn rotator cuff. Pet’r’s Supp’l Reply, filed May 9,
2024, at 2. However, this argument ignores that Ms. Cheung’s first shoulder MRI
showed that her rotator cuff was intact. Exhibit 2 at 121. Ms. Cheung’s argument
12

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 13 of 15
also overlooks that she told a doctor that she had no pain in her right shoulder in
January 2017. Exhibit 11 at 158.
For these reasons, the extent of Ms. Cheung’s SIRVA is more limited in
scope than she claims. A reasonable amount of compensation for her past pain,
suffering, and emotional distress is $90,000. See L.J. v. Sec’y of Health & Hum.
Servs., No. 17-059V, 2023 WL 2137946, at *6 (Fed. Cl. Spec. Mstr. Feb. 21,
2023).
2. Future Pain, Suffering, and Emotional Distress
The parties dispute whether Ms. Cheung is entitled to compensation for
pain, suffering, and emotional distress that Ms. Cheung might incur in the future.
See Pet’r’s Mot. at 27; Resp’t’s Resp. at 14-16. As explained in the preceding
section, Ms. Cheung has not preponderantly established that her SIRVA continued
past 2017. While Ms. Cheung might have shoulder pain, the pain she is
experiencing now was not induced by the vaccination. Thus, she is not entitled to
any compensation for future pain, suffering, and emotional distress.5
B. Unreimbursed Medical Expenses
Ms. Cheung is entitled to compensation for unreimbursed and
unreimbursable expenses. 42 U.S.C. § 300aa–15(a)(1). She seeks both past and
future expenses.
1. Past Unreimbursed Medical Expenses
Ms. Cheung seeks reimbursement for two types of expenses: (1) costs of
acupuncture and/or physiotherapy and (2) mileage expenses for attending
appointments. Her claim is $12,938.18. Pet’r’s Mot. at 29. The Secretary rejected
most items and proposed a lump sum of $2,000.00 as a reasonable amount of
compensation for past expenses. Resp’t’s Resp. at 17-18.
Ms. Cheung has established that she is entitled to compensation for
acupuncture and physiotherapy through and including January 7, 2017.6 She is
similarly entitled to the travel costs associated with those visits.
5 Ms. Cheung did not propose a methodology in which compensation for future pain,
suffering, and emotional distress is discounted to net present value. In future cases, Mr.
Firestone should show this process. See 42 U.S.C. § 300aa–15(f)(4).
6 These are items numbered 1-29 on the spreadsheet.
13

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 14 of 15
Although Ms. Cheung argues that she should be compensated for
acupuncture treatments for her neck and shoulder, Pet’r’s Mot. at 28, this
contention is unavailing. As discussed in section IV.A above, Ms. Cheung’s
SIRVA ended sometime around March 2017. She has not demonstrated that
acupuncture appointments beyond that date were “from the vaccine-related injury.”
42 U.S.C. § 300aa–15(a)(1)(B)(i). Thus, a reasonable amount of compensation for
past unreimbursed expenses is $1,884.37.
2. Future Unreimbursable Expenses
Ms. Cheung has not established with preponderant evidence that any future
shoulder problems are due to her SIRVA. Thus, she is not entitled to
compensation for future expenses.
C. MediCal Lien
Ms. Cheung seeks reimbursement for the Medicaid lien in the amount of
$1,826.29. Pet’r’s Mot. at 31. The Secretary did not dispute this item. Resp’t’s
Resp. at 18. The amount is supported by a March 12, 2020 letter. Exhibit 23.
Although California may have incurred additional expenses (see Pet’r’s April 16,
2024 status report), those additional expenses would not be due to Ms. Cheung’s
SIRVA.
V. Conclusion
Earlier in this litigation, Ms. Cheung established that she was entitled to
compensation. The evidence now shows that Ms. Cheung is entitled to
compensation in the amount of $93,710.66 to be issued in the form of a check
payable to petitioner. This amount reflects $90,000 for pain, suffering, and
emotional distress; $1,884.37 for past unreimbursed expenses; and $1,826.29 for
the Medicaid lien.
For the Medicaid lien, a check payable shall be issued, jointly to petitioner
and:
Department of Health Care Services
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
DHCS Account Number: C97959289F-VAC02
14

Case 1:19-vv-00342-UNJ Document 109 Filed 06/12/24 Page 15 of 15
The Clerk’s Office is instructed to enter judgment in accord with this
decision unless a motion for review is filed. Information about the submission for
a motion for review, including deadlines, is presented in the Vaccine Rules, which
are available through the Court’s website.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
15