VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01106
Package ID: USCOURTS-cofc-1_19-vv-01106
Petitioner: Kimberly Hartman
Filed: 2019-07-30
Decided: 2022-02-14
Vaccine: influenza
Vaccination date: 2018-10-29
Condition: shoulder injury related to vaccination (SIRVA)
Outcome: compensated
Award amount USD: 75000

AI-assisted case summary:
Kimberly Hartman, a 50-year-old social worker and Army Reserve member, received an influenza vaccine on October 29, 2018. Within 48 hours, she developed significant pain and weakness in her right shoulder, diagnosed as Shoulder Injury Related to Vaccine Administration (SIRVA). She sought medical attention within a month, receiving prescriptions for pain medication and undergoing physical therapy. Specialists noted reduced range of motion and pain consistent with adhesive capsulitis. Although her condition improved with conservative treatment, including physical therapy, she experienced lingering pain and occasional flare-ups. The medical records documented her history of pain since the vaccination and her seeking treatment. Respondent initially contested entitlement, arguing that the medical records did not explicitly state the pain began within 48 hours and did not directly attribute the injury to the vaccine. However, the court found that the medical records, combined with Ms. Hartman's affidavit, established onset within the Table timeframe. The case proceeded to damages, where Ms. Hartman sought $85,000 for pain and suffering, citing impacts on her career and personal life. Respondent proposed $60,000, arguing the injury was comparatively minor and treatment conservative. After reviewing the evidence, including prior SIRVA awards, the court awarded Ms. Hartman $75,000 for actual pain and suffering, finding her injury to be moderate for approximately five months, with less significant subsequent effects.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01106-0
Date issued/filed: 2021-10-15
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/14/2021) regarding 36 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1106V
UNPUBLISHED
KIMBERLY HARTMAN, Chief Special Master Corcoran
Petitioner,
v. Filed: September 14, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Findings of Fact; Onset; Ruling on
Entitlement; Influenza (Flu); Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA).
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On July 30, 2019, Kimberly Hartman filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that as a result of her receipt of an influenza (“flu”)
vaccine on October 29, 2018, she suffered a shoulder injury related to vaccination
(“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petition (ECF No 1) at 1;
see also Amended Petition (ECF No. 29) at 1 (expressly alleging a Table injury). The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished opinion 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 opinion 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 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 2 of 9
For the reasons discussed below, I find that the preponderance of evidence
supports that Petitioner suffered the onset of shoulder pain within 48 hours after
vaccination, and that Petitioner is entitled to compensation for a right SIRVA.
I. Relevant Procedural History
After initiating her claim, Petitioner filed additional records and a statement of
completion in February 2020. Nearly nine months later, Respondent completed his formal
review of the claim and invited settlement discussions. ECF No. 21. Petitioner conveyed
a settlement demand for pain and suffering, plus “nominal” out of pocket expenses,
promptly on November 22, 2020, to which Respondent countered on December 23, 2020.
ECF Nos. 23, 25. On January 26, 2021, however, Petitioner advised that the parties were
too far apart in their settlement discussions. ECF No. 26. Accordingly, on March 25, 2021,
Respondent duly filed his report formally opposing compensation. Rule 4(c) Report (ECF
No. 28), after which the parties briefed entitlement. Pet. Motion (ECF No. 32); Response
(ECF No. 33); Reply (ECF No. 34). This matter is now ripe for adjudication.
II. Relevant Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits,
Respondent’s Rule 4(c) report, and the parties’ briefing. I find most relevant the following:
• At the time in question, Ms. Hartman was 50 years old, employed as a social
worker, and enrolled in the U.S. Army Reserves. Ex. 5 at 17; Ex. 8 at 55-68.
She had a non-contributory medical history and was generally healthy. Ex. 3 at
89, 91-93; Ex. 4 at 72-74, 85-87.
• On October 29, 2018, Petitioner received the subject vaccine in her right deltoid
muscle. Ex. 7 at 1.
• Twenty-eight (28) days later, on November 26, 2018, Petitioner presented to
her primary care practice seeking medical attention for a history of “right arm
deltoid muscle pain since getting her flu shot 10/27/2018 [sic], she says it hurts
with any movement of the arm, she also reports weakness in that muscle, she
takes aleve which helps until it wears off.” Ex. 3 at 16. The nurse practitioner
did not observe any deformity, erythema, edema, or limitations in range of
motion, and did not offer any assessment more specific than “right arm pain.”
Id. She prescribed a one-month course of the non-steroidal anti-inflammatory
drug (“NSAID”) Naprosyn. Id.
2

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 3 of 9
• On December 19, 2018, Petitioner presented to orthopedic surgeon Dr. Daniel
Wartinbee,3 seeking treatment for right arm and shoulder pain “ever since the
end of October… after she had a flu shot,” which persisted despite taking the
prescription NSAID. Ex. 4 at 12. Dr. Wartinbee corroborated Petitioner’s
additional complaint of reduced range of motion on forward elevation,
abduction, external and internal rotation, and reaching behind her back. Id. He
recorded that these findings were “consistent with frozen shoulder, or adhesive
capsulitis,” recommended exercises, and referred to a colleague for further
treatment including a potential steroid injection. Id. at 12-13.
• The next day, December 20, 2018, Ms. Hartman saw sports medicine doctor
Dr. John Hulvey,4 who recorded a similar history of shoulder and upper arm
pain since the flu vaccine on October 29, 2018. Ex. 4 at 9. The pain had
worsened over time despite the NSAID and was exacerbated with activity. Id.
Dr. Hulvey observed decreased range of motion on forward flexion and “pain
and weakness with resisted external rotation on the right,” which was consistent
with mild adhesive capsulitis. Id. Petitioner accepted Dr. Hulvey’s
recommendations of formal physical therapy and try a different prescription
NSAID. Id. If Petitioner returned seeking further treatment, Dr. Hulvey would
evaluate whether “a subacromial versus subacromial/glenohumeral
corticosteroid injection” would be more appropriate. Id. at 9-10.
• On January 2, 2019, Petitioner began physical therapy for right shoulder pain
“following getting a flu shot in October 2018.” Ex. 5 at 184. She demonstrated
pain (rated at 8/10), weakness, and decreased range of motion, which were
recorded to be consistent with infraspinatus tendinopathy. Id. Her functional
score was 54/100. Id. She went on to complete three physical therapy sessions
per week over the next six weeks. Id. at 185-297.
• On January 7, 2019, Petitioner completed an annual periodic health
assessment form in her capacity as a member of the U.S. Army Reserves. Ex.
8 at 55-68. She did not report taking medications other than Aleve or her
shoulder injury specifically, but she did report “recurring muscle, joint, or low
back pain” and undergoing physical therapy within the past year. Id. at 67-68.
3 Dr. Wartinbee specializes in treatment of the hand, wrist, forearm, and elbow. South Carolina Sports
Medicine & Orthopedic Center – Dr. Daniel A. Wartinbee, M.D., at https://scsportsmedicine.com/our-
team/daniel-a-wartinbee-md (last accessed September 2, 2021).
4 South Carolina Sports Medicine & Orthopedic Center – Dr. John T. Hulvey, M.D., at
https://scsportsmedicine.com/our-team/john-t-hulvey-jr-md (last accessed September 2, 2021).
3

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 4 of 9
• The above record’s omission of shoulder pain is overshadowed by the records
of physical therapy, including on the following day, January 9, 2019, when
Petitioner reported pain currently at 1/10 but worst of 8/10 with activity and was
observed to have functional limitations. Ex. 5 at 232.
• On March 26, 2019, Petitioner completed the planned physical therapy course.
The therapist recorded that she was “rehabilitated.” She had made excellent
improvements, was experiencing only minimal pain with activities of daily living
and some persistent strength deficits, and was expected to make further gains
with a home exercise program. Ex. 5 at 295-97.
• On April 10, 2019, Petitioner presented to her primary care provider requesting
adjustments of several medications for conditions unrelated to her shoulder.
Ex. 3 at 13-15.
• On June 11, 2019, upon returning to Dr. Hulvey, Petitioner reported that her
shoulder had largely improved and she had stopped taking prescription
NSAIDs. Ex. 6 at 9-12. She had full range of motion and normal strength, but
“lingering” pain along the anterior deltoid upon a cross-arm adduction
maneuver. Id. at 12. Dr. Hulvey planned an MRI arthrogram to evaluate the
labrum. Id.
• On June 24, 2019, over the telephone, Dr. Hulvey and Petitioner reviewed that
the MRI visualized a non-detached posterior supral labral tear with a small
para-labral cyst. Ex. 6 at 13; Ex. 11 at 79-81. Petitioner did not feel that her
pain was severe enough to warrant Dr. Hulvey’s suggestions of a subacromial
corticosteroid injection or surgical consultation. Ex. 11 at 79. However, she
planned to follow up if the pain worsened to a point that she needed a steroid
injection or an exemption from push-ups during her military fitness training. Id.
• Records from at least eight (8) intervening encounters with other providers,
primarily concerning hip pain, do not address Petitioner’s shoulder. Ex. 11 at
44-78.
• On December 5, 2019, Petitioner returned to Dr. Hulvey. She reported “a little
bit,” “minimal” shoulder discomfort with crossarm adduction” but she had no
limitations in daily activity and would continue to monitor her pain rather than
seeking treatment such as a steroid injection. Ex. 11 at 40-43.
4

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 5 of 9
• At the next follow up on June 4, 2020, Dr. Hulvey recorded that: “During the
course of moving boxes, she has noted some recurrence of her right shoulder
pain primarily along the anterior deltoid region.” The physical examination was
normal except for a mildly positive O’Brien’s sign. But again, Petitioner deferred
any treatment. Ex. 11 at 4-6. There are no further records.
• In her July 29, 2019 affidavit, Petitioner avers that within two days (48 hours)
after receiving the flu vaccine, she developed “excruciating” pain in her right
shoulder that worsened to sharp stabbing pain with movement, especially upon
raising her arm, turning a steering wheel, and lying on her side. Ex. 2 at ¶ 10.
The pain worsened and became “extreme” during most activities of daily living
such as getting dressed, showering, and cleaning. Id. Petitioner does not
address her delay in seeking treatment.
• Petitioner also avers that the shoulder injury has negatively impacted her
career, participation in the Army Reserves, relationships with her husband and
children, and other aspects of her life. See generally Ex. 2.
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. And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
5

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 6 of 9
patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
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).
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.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] ... did in fact occur within the time period described in the Vaccine Injury Table.”
Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 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).
6

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 7 of 9
IV. Findings of Fact Regarding Onset
In opposing compensation, Respondent has disputed only whether Petitioner
established the onset of shoulder pain in the affected shoulder within 48 hours after
vaccination, as required by the Table and accompanying Qualifications and Aids to
Interpretation for SIRVA. Rule 4(c) Report at 6; Response at 1 (citing 42 C.F.R. §§
100.3(a)(XII)(A), (c)(10)(ii)).
On this point, Respondent first objects that Petitioner relies on her own claims, set
forth in her affidavit, in support of onset. Response at 1-2 (citing section 13(a)(1)
(prohibiting a special master from finding facts set forth in section 11(c)(1), including onset
within the Table timeframe, “based on the claims of a petitioner alone, unsubstantiated
by medical records or medical opinion”). Respondent also cites the Court of Federal
Claim’s prior articulation of the legal standard in Lett: “Ultimately, the petitioner must
substantiate the occurrence of a compensable, vaccine-related injury with independent
evidence.” Id. (citing Lett v. Sec’y of Health & Human Servs., 39 Fed. Cl. 259, 260 (1997).
But Lett’s holding was merely that “when there is no mention of a seizure in any
health record and when the only evidence of a seizure rests on the statements of the
petitioners, the requirements of [Section 13(a)(1)] of the Vaccine Act are not met.” 39
Fed. Cl. at 263. This is distinguishable from when subsequent medical records do
document the symptoms at issue, as well as the petitioner’s history of a temporal
association with the vaccine, as seen here. Reply at 5 (citing Ray v. Sec’y of Health &
Human Servs., No. 16-1388V, 2018 WL 7051571 (Fed. Cl. Spec. Mstr. Dec. 17, 2018));
see also Gear v. Sec’y of Health & Human Servs., No. 18-1684V, 2020 WL 5407825, at
*9 (Fed. Cl. Spec. Mstr. Aug. 20, 2020). Moreover, the Federal Circuit has recently
reasoned, albeit in a different context, that sworn testimony as to facts within the personal
knowledge of an individual, even the individual pursuing compensation for an alleged
vaccine injury, can represent objective evidence bearing on these kinds of factual issues.
James-Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1380 (Fed. Cir.
2021). Such an affidavit on its own cannot establish onset, but should be considered
within the context of other evidence.
Respondent also contends that Petitioner’s medical records are not “independent
evidence” because they only recount Petitioner’s own history of when her shoulder pain
began. Response at 2. This argument seeks to evade the long-held and consistent
presumption that information contained within medical records, including “information
supplied to… health professionals” is trustworthy, because it is intended to facilitate
diagnosis and treatment and it is generally supplied shortly after the events in question.
Cucuras, 993 F.2d at 1528. Consistent with this presumption, in this case, Petitioner first
7

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 8 of 9
reported her shoulder injury less than one month after vaccination and she repeatedly
sought treatment to relieve her pain and loss of function.5
Four different medical providers at separate practices chronicled Petitioner’s
history of shoulder pain “since,” “ever since,” or “following” the flu vaccine at the end of
October. The primary care provider’s first record inadvertently provides that the vaccine
was on October 27th, but several others wrote the correct date of October 29th. While the
records do not expressly state that the pain began within 48 hours, the descriptions of
pain “since” the vaccination are persuasive absent evidence supporting an alternative
onset outside of that Table timeframe (or any other inciting event). There is no such
competing evidence to weigh in this case.
Taken altogether, the medical records, accompanied by Petitioner’s affidavit,
support a finding that she suffered the onset of shoulder pain within 48 hours after the flu
vaccination.
V. Other Table Requirements and Entitlement
In light of the lack of other objections and my own review of the record, I find that
Petitioner has established the other requirements for a Table SIRVA claim. Specifically,
there is not a history of prior shoulder pathology that would explain her injury. 42 C.F.R.
§ 100.3(c)(3)(10)(i). There is no evidence of any other condition or abnormality that
represents an alternative cause. 42 C.F.R. § 100.3(c)(3)(10)(iii).6 The medical records
5 In the Rule 4(c) Report, Respondent also observed that Petitioner’s medical providers did “not specifically
find that her vaccination caused shoulder pain.” Rule 4(c) Report at 6. This observation might bear on an
assessment of causation-in-fact, as to whether the petitioner had established Althen prong two and whether
Respondent had presented a more likely alternative cause for the injury. But it does not fit within the current
inquiry regarding onset. Multiple medical providers accepted, for the purposes of diagnosis and treatment,
Petitioner’s history that her onset of shoulder pain was shortly after vaccination. In the absence of any
evidence supporting an alternative time period or association with another inciting event, these medical
records are probative in supporting Petitioner’s claim.
6 Respondent also averred in the Rule 4(c) report: “There is no evidence that the posterior superior labral
tear observed in the MRI is in any way related to Petitioner’s vaccination. When Petitioner later returned to
Dr. Hulvey for additional treatment, examination indicated that her rotator cuff was intact and her pain was
attributed to a labral tear. Dr. Hulvey does not relate Petitioner’s posterior superior labral tear to her
vaccination.” Rule 4(c) Report at 6 (citing Ex. 11 at 81, 43, 6). I conclude that Respondent does not contend
that this point is a barrier to a Table SIRVA claim, as it was not included in his final brief. However, if
Respondent had intended to press this point, I likely would have found it to be unavailing. Within the Vaccine
Program, it is frequently recognized that a typical adult, particularly as he or she approaches middle age,
commonly tends to develop some degree of “wear and tear” involving the shoulder which can be
asymptomatic. SIRVA is characterized by the acute onset of inflammation and pain, which can be
exacerbated by that underlying pathology.
8

Case 1:19-vv-01106-UNJ Document 41 Filed 10/15/21 Page 9 of 9
and affidavits support that her shoulder pain and reduced range of motion were limited to
the left shoulder. C.F.R. § 100.3(c)(3)(10)(iv). The contemporaneous vaccination record
reflects the site of administration as her right deltoid. Ex. 7; Sections 11(c)(1)(A) and (B)(i).
Petitioner has not pursued a civil action or other compensation. Ex. 1 at ¶ 12; Section
11(c)(1)(E). Finally, Petitioner suffered the residual effects of her injury for more than six
months after vaccination. Thus, Petitioner has satisfied all requirements for entitlement
under the Vaccine Act.
VI. Conclusion
Based on the entire record, I find that Petitioner has provided preponderant evidence
satisfying all requirements for a Table SIRVA. Petitioner is entitled to compensation. A
subsequent order will set further proceedings towards resolving damages.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01106-1
Date issued/filed: 2022-02-14
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 01/14/2022) regarding 42 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (jas) Service on parties made.
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Case 1:19-vv-01106-UNJ Document 47 Filed 02/14/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1106V
UNPUBLISHED
KIMBERLY HARTMAN, Chief Special Master Corcoran
Petitioner,
v. Filed: January 14, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 30, 2019, Kimberly Hartman filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that as a result of her receipt of an influenza (“flu”)
vaccine on October 29, 2018, she suffered a shoulder injury related to vaccination
(“SIRVA”). Petition (ECF No 1) at 1; Amended Petition (ECF No. 29) at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”).
Following my ruling on entitlement in Petitioner’s favor in September 2021, the parties
quickly reached an impasse concerning the appropriate award of damages, and thus
1 Because this unpublished opinion 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 opinion 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 1:19-vv-01106-UNJ Document 47 Filed 02/14/22 Page 2 of 9
have submitted that issue to my final determination. For the following reasons, I find that
Petitioner is entitled to a damages award of $75,000.00, representing actual pain and
suffering.
I. Relevant Procedural History
On September 14, 2021, I found that Petitioner was entitled to compensation for a
right SIRVA. Entitlement Ruling (ECF No. 36).3 However, I declined to set the appropriate
amount of compensation based solely on Petitioner’s briefing, in which she sought
$85,000.00 for actual and future pain and suffering. Combined Entitlement Reply and
Damages Brief (ECF No. 34) (hereinafter “Brief”) at 1, 6-16, and n. 1 (in which Petitioner
argued that “it would be futile for the parties to discuss damages informally”). I directed
Respondent to revisit his valuation of the case and endeavor to resolve damages
informally, but if that was not possible, to brief his position regarding an appropriate
damages award within 30 days. Damages Order (ECF No. 37).
On October 14, 2021, Respondent offered a damages brief, in which he contended
that Petitioner’s case merited an award of only $60,000.00 for actual pain and suffering
Response (ECF No. 38). On October 15, 2021, Petitioner filed a reply (ECF No. 40)
accompanied by her supplemental affidavit. Ex. 12. The matter is now ripe for
adjudication.
II. 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.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). 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).
3 My prior summary of the prior procedural history and underlying facts, as set forth in the Ruling on
Entitlement, are fully incorporated and relied upon herein.
2

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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) (“[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) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated that the special masters would use their accumulated expertise in the field
of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013).
Judge Merow maintained that do so resulted in “the forcing of all suffering awards into a
global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
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III. Appropriate Compensation for Petitioner’s Pain and Suffering
A. The Parties’ Arguments
The only issue to be resolved is the appropriate award of compensation for
Petitioner’s pain and suffering (as she has not asserted any other damages components).
Petitioner first argues that Section 13(a) only prohibits the special master from
relying on a petitioner’s claims alone only when determining eligibility and entitlement to
compensation. Brief at 6.5 Calculation of the appropriate amount of compensation is
governed instead, she maintains, by Section 15, which has no similar requirement. Id.6
She also argues that medical records should not be presumed to be reliable or used as
“the sole or even primary index” of pain and suffering, because they are not created for
the purpose of illuminating a patient’s suffering in the context of treatment. Brief at 5. She
recognizes that medical records are useful for finding “medical facts regarding the timing
and nature of symptoms experienced, the signs observed or measured, the results of
objective testing, the diagnosis assigned, and the response to treatment.” Id.7 But
consideration of additional testimonial evidence concerning “ongoing losses of
productivity at work, the enjoyment in personal pursuits, lost time with family, or the ability
to live without depression,” bears on what pain and suffering has likely been experienced.
Brief at 6-7.
In arguing for $85,000.00 for past and future pain and suffering, Petitioner cites
her prompt medical attention; impacts on her life; treatment with over-the counter and
prescription non-steroidal anti-inflammatory drugs (“NSAIDS”); course of physical
therapy; and doctors’ multiple suggestions of cortisone steroid injections and
consideration of surgery. She asserts that she has significant ongoing pain and
exacerbations attributable to the original injury.
Petitioner avers that her clinical course and sequelae are comparable to the
petitioners in Kent, Weber, Dhanoa, and Young,8 who received between $80,000.00 to
5 Citing Section 13 (addressing when compensation shall be awarded).
6 Citing Section 15 (addressing what compensation shall be awarded).
7 Citing Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993).
8 Citing Kent v. Sec’y of Health & Human Servs., No. 17-73V, 2019 WL 5569493, at *2 (Fed. Cl. Spec. Mstr.
Aug. 7, 2019) ($80,000.00); Weber v. Sec’y of Health & Human Servs., No. 17-399, 2019 WL 2521540
(Fed. Cl. Spec. Mstr. Apr. 9, 2019) ($85,000.00); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V,
2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) ($85,000.00 for actual pain and suffering, and also
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$100,000.00 for actual pain and suffering. Brief at 10-12; Reply at 2-5. Petitioner
summarizes the cases, including that the first medical treatment ranged from nineteen
(19) days to 5 months after vaccination. Each case involved a relatively conservative
course of treatment primarily featuring physical therapy. Multiple petitioners
demonstrated ongoing shoulder pain or exacerbations thereof, and several demonstrated
that the injuries caused disruptions to their professional and/or personal lives.
By contrast, her case should be distinguished from Pruett, in which $75,000.00
was awarded to a petitioner whose MRI suggested only mild injury, never received
physical therapy or steroid injections, and experienced only “one to three months of
significant pain.” Brief at 12; Reply at 5.9 Petitioner also argues against comparison to
Knauss, in which $60,000.00 was awarded to a petitioner who demonstrated
improvements with physical therapy, cancelled appointments because the pain nearly
resolved, and did not suffer significant life disruptions. Brief at 12-13; Reply at 5.10
In proposing an award of $60,000.00, Respondent does not address Petitioner’s
affidavit or her briefing in support of its consideration. He states that the medical records
demonstrate that Petitioner “sustained a comparatively minor injury and received
conservative treatment.” Response at 6. In addition, she had “minimal pain with her
normal daily activities” upon discharge from physical therapy. Id. A year and a half later,
she reported a “recurrence” of pain associated with moving boxes. Id. at 7. Respondent
also notes that Petitioner was offered, but declined, steroid injections or surgical
consultations, apparently because “her pain was not severe.” Id. Respondent cites only
to the medical records and not to Petitioner’s affidavit. Id. at 2-5, 6.
Respondent argues that in Kent, Weber, Dhanoa, and Young, the higher awards
were justified by more extensive treatment. Response at 7-8. He instead cites the more
limited courses of treatment (featuring physical or occupational therapy – but also steroid
injections – and concluding within less than a year) seen in Knauss as well as Rayborn,11
in which the petitioner was awarded $55,000.00. Id. at 7.
$10,000.00 for future pain and suffering in the first year); Young v. Sec’y of Health & Human Servs., No.
15-1241W, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4, 2019) ($100,000.00).
9 Pruett v. Sec’y of Health & Human Servs., No., 17-561V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr.
30, 2019)
10 Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr.
May 23, 2018).
11 Rayborn v. Sec’y of Health & Human Servs., No. 18-226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr.
Aug. 14, 2020).
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B. Analysis
Ms. Hartman’s awareness of her injury is not disputed, which leaves only the
severity and duration of the injury to be considered. In assessing those factors, I have
reviewed the record as a whole, including the medical records, affidavits, and the parties’
briefing and cited case law. I considered prior awards for pain and suffering in both SPU
and non-SPU SIRVA cases and rely upon my experience adjudicating these cases.
However, my determination is ultimately based on the specific circumstances of this case.
1. Duration and Severity of Petitioner’s SIRVA
A careful review of the evidence (including both the medical records and affidavits)
reflects that after her October 29, 2018, flu vaccination, Ms. Hartman suffered a moderate
injury for approximately five months. Her subsequent condition was less significant, and
harder to attribute to the vaccination.
Petitioner has established that within 48 hours after vaccination, she developed
new acute shoulder pain which was worse upon movements required for most activities
of daily living, and also worse when she lay down in an effort to sleep. Ex. 2 at ¶ 10. O-
the-counter NSAIDs provided only temporary relief. Petitioner first sought medical
attention for her shoulder pain just twenty-eight (28) days after vaccination, with her
primary care provider, who prescribed a stronger NSAID. Ex. 3 at 16. But the pain
worsened, prompting Petitioner’s consultations three weeks later with orthopedic
specialists, followed by the start of physical therapy. Those specialists documented her
significant pain despite prescription medication, as well as weakness and decreased
range of motion, in the acute phase of injury. Ex. 4 at 9-13; Ex. 5 at 184-297. However, I
also recognize that during this early phase, Petitioner declined other treatments such as
a steroid injection, which suggests that the initial pain was less than “excruciating,” see
Ex. 2 at ¶¶ 7, 10.12
However, I do not find support for Petitioner’s later recollection that her physical
therapy course – consisting of twenty-one (21) sessions between January 2nd – March
26th, 2019 – delivered only “minimal” relief. Ex. 12 at ¶ 4. Upon discharge, she was
assessed to have made “excellent improvements” including improved range of motion
and strength, and reduced, “minimal” pain with her usual activities of daily living. Ex. 5 at
296-97. From the therapist’s perspective, Petitioner’s prognosis was “good,” and she was
considered to be “rehabilitated.” Id. at 197. I accept that Petitioner had some ongoing
12 I further address Petitioner’s proposed reasoning for why she did not seek undergo steroid injections
for her shoulder below.
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strength deficits, for which she would continue with a home exercise program, but the
physical therapy discharge reflects the end of the acute course of her vaccine injury, and
active treatment thereof. This is further supported by the limited follow-up appointments
with her orthopedist Dr. Hulvey. In June 2019, Petitioner complained of only “lingering”
pain upon adduction, which she did not feel warranted a steroid injection or surgical
consultation. Ex. 6 at 4-6. At the next appointment concerning her shoulder, in December
2019, Petitioner reported “continued improvement.” She had “a little bit of anterior
shoulder discomfort with cross-arm adduction.” However, the pain was not limiting her
activities of daily living, and characterized as “minimal.” Ex. 11 at 40-43. Additionally,
Petitioner did not complain about her shoulder during at least nine intervening encounters
with other providers. Ex. 3 at 13-15; Ex. 11 at 44-78.
I have considered Petitioner’s description of the impact on her life including stress
and disruptions to her employment; a decreased ability to walk for exercise, which was
also a social activity with friends; and difficulty training a therapy dog. See generally Exs.
2, 12. I accept these impacts as occurring during the acute course described above, but
not necessarily after her discharge from physical therapy.
Additionally, in her initial affidavit dated July 29, 2019, Petitioner averred that she
has “been unable to do pushups since [her SIRVA],” and that she would be “required to
submit documentation from a physician to be excused temporarily or until [she was] able
to perform to standard.” Ex. 2 at ¶ 11. But this statement is not borne out in the medical
records. See Ex. 6 at 6 (June 24, 2019, orthopedist’s record that Petitioner “may need a
note to excuse her from push-ups if she is unable to do these without significant pain”)
(emphasis added); Ex. 11 at 81 (October 11, 2019, record with the same notation). There
is not preponderant evidence in the record that the SIRVA had persistent impacts on her
military reserve position.
Petitioner avers that her shoulder injury has been persistent and susceptible to
further aggravation. She specifically points to an episode in June 2020, when she
experienced severe shoulder pain upon moving boxes in preparation for an interstate
move. Ex. 12 at ¶ 6. She avers that the boxes “were not heavy,” and moving them “never
would have resulted in this pain before I got the vaccine in 2018.” Id. But it is not definitive
– certainly not based on the record in this case – that the inflammation or the resulting
reduced range of motion contemplated by the Table listing13 would continue and render
an individual susceptible to later aggravation over one year later. This is especially so in
the context of underlying shoulder pathology – here, an unrepaired labral tear, see Ex. 11
at 79-81, and other activities that could cause further inflammation and injury.
13 42 C.F.R. § 100.3(c)(10).
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Moreover, Petitioner has not filed any evidence to establish that after her summer
2020 move, she ever followed the recommendation to establish care with a new
orthopedist, or for that matter, sought any further treatment for her shoulder.
Finally, I recognize Petitioner’s concerns that either long-term use of pain
medications or repeated cortisone injections can carry side effects, and that surgery has
no guarantee of success. Ex. 12 at ¶ 8. But the medical records do not reflect those
concerns. Rather, they suggest that Petitioner concluded that her residual pain was
manageable and did not warrant such treatment.14
2. Comparison to Past Awards
I commend both parties for citing to past reasoned opinions to inform the present
analysis of pain and suffering. However, I do not accept Petitioner’s comparison to Young
(awarding $100,000.00), in which the petitioner established that his initial SIRVA was
exacerbated by a subsequent vaccination and he was still attending physical therapy four
years later. Similarly in Dhanoa (awarding $85,000.00), it was accepted that the SIRVA
persisted to the point of warranting a repeat cortisone injection three and one-half years
later. Weber (awarding $85,000.00) recognized that the treatment course was both more
extensive, including two steroid injections and dry needling, and complicated by the
petitioner’s pregnancy and subsequent need to care for her newborn child. Here,
Petitioner has established a less severe initial injury and a conservative course of
treatment. I also do not see strong evidence linking her SIRVA to her increased pain over
one year later, which she attributed to moving boxes.
Nor do I accept Respondent’s reliance on Rayborn (awarding $55,000.00), in
which the petitioner did not establish extensive impacts on his daily life, even in the acute
period. And in Knauss (awarding $60,000.00), the petitioner was documented to have full
active and passive range of motion prior to starting treatment. Those cases also involved
several-month delays in medical treatment, supporting that the initial pain was less severe
(although similar delays are found in cases awarding higher damages).
14 Notably, Petitioner underwent at least one steroid injection, as well as surgical correction of labral tears
in both hips in 2017 – 2018 and a left total hip arthroplasty in February 2020. Ex. 4 at 72-74, 85-87; Ex. 11
at 89-94. At a May 15, 2020, post-operative appointment, Dr. Hulvey recorded that Petitioner was “doing
very well overall she is progressed well in terms of functions and mobility.” Ex. 11 at 9.
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This case has several parallels to Kent (awarding $80,000.00), in which the
petitioner sought prompt15 but conservative medical treatment largely consisting of
physical therapy, which concluded within a year. Moreover, the primary MRI finding was
one torn tendon, which was likely inflamed by the vaccination, as in Ms. Hartman’s case.
However, the petitioner (and one supporting witness) demonstrated more continuous
residual pain, without any other inciting event.
In addition in Boyd, I awarded $80,000.00 to a petitioner whose treatment course
and repeated deferrals of cortisone injections resembled that of Ms. Hartman.16 However,
that petitioner’s medical records documented more significant documented ongoing pain
and limitations. Accordingly, I find that an appropriate award for Ms. Hartman’s actual
pain and suffering is $75,000.00.17
IV. Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $75,000.00 for actual pain and suffering. This amount represents
compensation for all damages that would be available under Section 15(a). The Clerk of
the Court is directed to enter judgment in accordance with this decision.18
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 While the first medical record documenting shoulder pain was three months after vaccination, the special
master accepted that the petitioner’s initial complaints to her medical providers were not recorded.
16 Boyd v. Sec’y of Health & Human Servs., No. 19-1107V, 2021 WL 4165160 (Fed. Cl. Spec. Mstr. Aug.
12, 2021).
17 Petitioner notes that in Pruett, $75,000.00 was awarded to a petitioner who experienced significant pain
for only one to three months, which resolved without physical therapy, cortisone injections, or surgery. Upon
review, that opinion recognized other factors including the petitioner’s description of harms to his business
during the busy season, while foregoing a lost wages claim.
18 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9