VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01301 Package ID: USCOURTS-cofc-1_19-vv-01301 Petitioner: Martha Buck Filed: 2019-08-27 Decided: 2023-11-17 Vaccine: influenza Vaccination date: 2017-12-24 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 35000 AI-assisted case summary: Martha Buck filed a petition for compensation under the National Vaccine Injury Compensation Program on August 27, 2019, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on December 24, 2017. Petitioner presented to orthopedist Dr. Lisa Khoury on April 6, 2018, reporting left shoulder pain that began after the flu shot, with difficulty raising her arm and pain rated ten out of ten at worst. Dr. Khoury assessed a rotator cuff strain and noted the injection site was in the subacromial area. A subsequent MRI revealed possible synovitis. On May 7, 2018, Dr. Christopher Lutrzykowski diagnosed adhesive capsulitis, likely triggered by aberrant placement of the vaccine, and noted immediate onset pain after the injection. Petitioner underwent physical therapy from May to August 2018, reporting improvement by August 20, 2018. Petitioner also submitted affidavits and social media posts detailing her pain onset and progression. The Chief Special Master, Brian H. Corcoran, issued a ruling on entitlement on August 23, 2023, finding that the onset of Petitioner’s shoulder pain occurred on the day of vaccination, which is within the 48-hour window required for a Table SIRVA claim. The ruling also found that Petitioner met all other SIRVA criteria and other requirements for entitlement, including experiencing residual effects for more than six months and not having previously collected an award or settlement. On November 17, 2023, Chief Special Master Corcoran issued a decision awarding damages. Respondent proffered an award of $35,000.00 for pain and suffering, which Petitioner agreed to. The court awarded Martha Buck a lump sum payment of $35,000.00, payable to Petitioner. Petitioner was represented by Leah VaSahnja Durant, and Respondent was represented by Catherine Elizabeth Stolar. Theory of causation field: Martha Buck filed a petition alleging SIRVA from an influenza vaccine received on December 24, 2017. The claim proceeded under the Vaccine Injury Table for SIRVA, which requires manifestation within 48 hours of vaccination. Petitioner consistently reported onset of shoulder pain on the day of vaccination, December 24, 2017, in medical records from Dr. Lisa Khoury (April 6, 2018), Dr. Christopher Lutrzykowski (May 7, 2018), and physical therapy records (May 18, 2018). These reports were corroborated by Petitioner's affidavits and social media posts. Despite a delay in seeking medical treatment, attributed to rural location and weather, Chief Special Master Brian H. Corcoran found the evidence preponderated in favor of an onset within 48 hours. Respondent did not dispute the remaining SIRVA criteria or other entitlement requirements. Petitioner was found entitled to compensation on August 23, 2023. A subsequent decision on November 17, 2023, awarded Petitioner $35,000.00 for pain and suffering, as agreed upon by both parties. Petitioner was represented by Leah VaSahnja Durant, and Respondent by Catherine Elizabeth Stolar. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01301-0 Date issued/filed: 2023-09-25 Pages: 12 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/23/2023) regarding 35 Ruling on Entitlement, Order on Motion for Ruling on the Record ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 1 of 12 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1301V MARTHA BUCK, Chief Special Master Corcoran Petitioner, Filed: August 23, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 27, 2019, Martha Buck filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 2 of 12 For the reasons discussed below, I find that a preponderance of the evidence supports a finding that the onset of Petitioner’s shoulder pain began within 48 hours of vaccine administration, and that Petitioner has satisfied the remaining requirements for entitlement. I. Relevant Procedural History Petitioner filed an affidavit and medical records on September 9 and October 30, 2019 (ECF Nos. 7, 9). The parties attempted settlement for several months in 2021, but on August 30, 2021, they requested that a deadline be set for Respondent to file his Rule 4(c) Report (ECF No. 23), and Respondent did so on October 14, 2021 (ECF No. 24). Following a status conference, Petitioner filed additional evidence and a statement of completion (ECF Nos. 25-27). On February 28, 2022, Respondent reported that his position remained unchanged despite Petitioner’s additional evidence (ECF No. 28). On May 13, 2022, Petitioner filed a motion for a ruling on the record (ECF No. 30). Respondent filed a response in opposition on July 27, 2022, and Petitioner replied on August 3, 2022 (ECF Nos. 33, 34). The issues of the onset of Petitioner’s shoulder pain and entitlement to compensation are ripe for a ruling. II. Factual Findings and Ruling on Entitlement A. Legal Standards Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). “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). 2 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 3 of 12 To overcome the presumptive accuracy of medical records testimony, a petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment, or a physician may enter information incorrectly or not record everything he or she observes). In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must establish that she suffered an injury meeting the Table criteria, in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation (“QAI”) are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological 3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. Section 11(c)(1)(A)(B)(D)(E). 3 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 4 of 12 abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10). 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. B. Relevant Factual History This ruling contains only a brief overview of facts relating to the onset of Petitioner’s symptoms and entitlement to compensation. 1. Medical Records On December 24, 2017, Petitioner received a flu vaccine intramuscularly in her left arm at Walmart. Ex. 1 at 1. Over three months later, on April 6, 2018, Petitioner presented to orthopedist Dr. Lisa Khoury complaining of left shoulder pain. Ex. 7 at 1. Petitioner reported that she had received a flu shot at Walmart on New Year’s Eve,4 and since then had difficulty raising her left arm. Id. She had pain that was ten out of ten at worst, but could be reduced to two out of ten. Id. Her shoulder was painful even at rest, and the pain was made worse by lifting or using the arm. Id. She had tried oral anti-inflammatories and exercises at home, without any improvement. Id. 4 Respondent allows (and I agree) that the reference to New Year’s Eve in the record appears to be in error, as Petitioner received the flu vaccine on Christmas Eve. Resp. at *3 n. 2. 4 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 5 of 12 On examination, Petitioner’s left shoulder range of motion was reduced compared to her right shoulder in forward flexion and abduction. Ex. 7 at 2. She had pain throughout the arc of motion on the left side, and moderate tenderness to palpation. Id. X-rays were normal. Id. Dr. Khoury assessed Petitioner with strain of the muscles and tendons of the rotator cuff. Id. Dr. Khoury noted that Petitioner reported that the flu vaccine was injected in the subacromial area and that she had “left shoulder pain status post flu injection.” Id. Dr. Khoury recommended an MRI and physical therapy (“PT”). Id. On April 23, 2018, Petitioner underwent a left shoulder MRI. Ex. 3 at 4. The MRI revealed possible synovitis in the left shoulder, with edema along the synovial lining and a small effusion. Id. Petitioner also had osteoarthritis in her acromioclavicular joint. Id. On May 7, 2018, Petitioner sought a second opinion from orthopedist Dr. Christopher Lutrzykowski. Ex. 2 at 7. She reported that her left shoulder pain started on December 24, 2017 when she was given a flu vaccine by a pharmacist. Id. She felt that the injection was given too high and went into the subacromial space rather than the deltoid muscle. Id. She felt “almost immediate onset pain after the injection and noted swelling as well.” Id. The pain had continued through the winter and into the spring. Id. The pain was dull and achy, and generally mild (two out of ten) at rest. Id. However, when she moved or used the arm, the pain became more severe, at a level of six to ten out of ten. Id. She reported severely decreased range of motion and global weakness. Id. On examination, Petitioner had mild tenderness at the edge of the acromion and greater tuberosity. Ex. 2 at 9. Dr. Lutrzykowski evaluated her range of motion (which was decreased), but was unable to test for impingement due to her limited range of motion. Id. He reviewed the MRI, noting minimal fluid in the subacromial bursa as well as glenohumeral joint effusion and synovitis. Id. Dr. Lutrzykowski assessed Petitioner with adhesive capsulitis that was “likely triggered by aberrant placement of influenza vaccine.” Id. at 11. He referred her to PT and planned to administer an ultrasound guided glenohumeral injection if she did not improve. Id. Petitioner reported for a PT evaluation for adhesive capsulitis on May 18, 2018. Ex. 3 at 15. The record notes that the onset of her problem was on December 24, 2017, when she got a flu vaccine at a pharmacy that was given high on her arm. Id. She had pain that lingered and worsened over time, and now had a frozen shoulder. Id. She reported pain levels ranging from two to ten out of ten. Id. On examination, her left upper arm had some atrophy, with a mild bulge at the distal anterior deltoid area. Id. Her objective findings were “consistent with a treatment diagnosis of L shoulder pain, adhesive capsulitis with significant muscle imbalances.” Id. Petitioner continued PT until August 7, 2018. Ex. 6 at 5. On August 20, 2018, Petitioner returned to Dr. Lutrzykowski for a follow up. Ex. 5 at 1. She had completed her PT sessions and was continuing to do home exercises, and reported an almost complete recovery. Id. She had improved strength, and was not 5 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 6 of 12 experiencing pain at night or at rest during the day. Id. Dr. Lutrzykowski assessed her with left shoulder adhesive capsulitis that was resolving, and noted that it was “[p]ossibly due to vaccine injection.” Id. at 3. Petitioner was instructed to continue her home exercise program and take Tylenol as needed for pain. Id. Dr. Lutrzykowski and Petitioner discussed a steroid injection, but agreed it was not warranted in light of her excellent improvement with home exercises. Id. 2. Affidavits Petitioner submitted two affidavits in support of her claim. Exs. 8, 12. Petitioner averred that she has received many injections in her life, and was prepared for her left shoulder to be painful for a couple of days after her flu shot. Ex. 8 at ¶ 2. She told the pharmacist that the injection site was much higher than normal, but he proceeded to inject it into her bursa rather than the deltoid. Id. Her shoulder began to hurt during the drive home. Id. Within hours, the general tenderness in her arm developed into a more localized shoulder pain. Ex. 12 at ¶ 1. She called a longtime friend, Bob Lorez, at six o’clock that evening and complained of the escalating pain. Id. She took Tylenol and went to bed, but the next morning the pain was worse, and continued to increase over the next few days. Id. She recounts an episode on December 27, three days after vaccination, when she reached for a cup of tea during a phone call with Mr. Lorez and screamed from the pain. Id. She tried not to move her arm, but the movement from even walking was painful. Id. She hoped the pain would subside with time, and stayed home reading and writing, and limited her activities, taking Tylenol for pain relief. Id. Petitioner lives in a rural area in Maine, where there are few doctors and it is difficult to get an appointment. Ex. 8 at ¶ 3. The nearest one she could find was over an hour away. Ex. 12 at ¶ 1. It took a long time to get an appointment, and then that appointment was cancelled due to snow, further delaying her care. Id. Even car trips were painful, and she had to reach over with her right arm to open and close the door and fasten her seat belt. Ex. 12 at ¶ 2. Extending her left arm to dress, bathe, or brush hair was “impossible without screaming pain.” Id. Sleeping was also very painful, and she was unable to find a position that was pain-free. Id. at ¶ 3. She had to shovel with one arm, and even doing that hurt her left arm. Id. She is a cancer survivor, and states, “the unrelenting pain in my shoulder was worse than the pain after the bilateral radical mastectomy,” and the recovery was also worse because the damage was in the joint and not just the tissues. Id. at ¶ 4. She saw improvement only months later with physical therapy. Id. at ¶ 5. Attached to Petitioner’s supplemental affidavits are phone records, but the affidavit does not explain these records. 6 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 7 of 12 3. Unsigned letter of Robert Lorez Petitioner submits an unsigned letter from Robert Lorez as Exhibit 13. It was originally stricken from the record because it was labeled as a declaration, but was not signed under penalty of perjury and thus did not comply with 28 U.S.C. § 1746 (ECF No. 29). Petitioner was directed to re-file it. Id. On May 13, 2022, Petitioner re-filed the identical letter as Exhibit 13 (ECF No. 31-1). In her motion, Petitioner explains that Mr. Lorez is now deceased, and thus unavailable to attest under penalty of perjury. Mot. at *2 n. 1. Petitioner urges that I give as much weight to the letter as I deem appropriate under the circumstances. Id. The unsigned letter from Mr. Lorez is not dated, but indicates at the top that it was received on May 16, 2019, although it does not state by whom. Ex. 13 It is not addressed to anyone. Id. It stated that Mr. Lorez and Petitioner had been close friends since the late 1960s, and they talked on the phone almost daily. Ex. 13. He recalled that she called him on Christmas Eve in 2017 to wish him and his family well. Id. She mentioned that she had finally gotten a flu shot, and that her arm hurt and was swelling. Id. Rather than improving, her arm pain worsened. Ex. 13. He recalled that on December 27 while they were talking on the phone, she reached for a cup of tea and screamed into the phone from sudden and overwhelming pain. Id. He was shocked and his ears rang. Id. Petitioner apologized, and said that she expected the pain to go away soon since it was from a flu shot. Id. After a month, he convinced her that she should see a doctor. Id. She spent early February researching orthopedists. Id. It took weeks to get an appointment because of a doctor shortage in Maine, and then the doctor cancelled the appointment due to bad weather. Id. Because of this, she was not seen until early April. Id. 4. Social Media Posts Petitioner submitted three Facebook posts under the name Mara Buck5 in support of her claim. Exs. 9, 10, 11. In a post dated January 23, 2018, Petitioner states, “[a]rm still sore from flu shot couple weeks ago. Too tired to accomplish more than one tiny thing per day.” Ex. 9 at 1. In a second post, dated February 22, 2018, Petitioner states “[a]m I the only one whose arm still hurts a whole damn lot 2 months after the flu shot?” Ex. 10 at 1. In the comments, Petitioner states that there was an immediate large lump, which had receded somewhat, but that she still could not raise her arm higher than horizontal without a great deal of pain. Id. She states that she did not have a doctor but may need to find one. Id. In another comment, she stated that it was “probably doctor time and then possibly join a 5 Although this is not explained, I assume for purposes of this ruling that Mara is a nickname for Martha, and thus that they are Petitioner’s posts. I do not place significant weight on these in any event; their primary value is that they corroborate other record evidence. 7 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 8 of 12 class-action suit.” Id. She also states that she “[t]ried to make a doctor’s appointment yesterday” but was unable to do so. Id. at 2. She stated that she was “making an orthopedist appointment next week.” Id. at 8. She added that there is “a special court to deal with ‘no-fault’ suits over such injuries.” Id. The third Facebook post is dated March 13, 2018. Ex. 11 at 1. It states that Petitioner had been waiting to see a doctor for over two months, and “Maine is closed today for storm, so another 3 weeks for new appt.” Id. Petitioner commented that she had “an orthopedic appointment for today and now the whole state is closed because of the storm. Next appointment is April 6th!”. Id. Attached to this post is an appointment card overlaid on an envelope mailed from Mid Coast Medical Group, Orthopedics, in Brunswick, Maine with a postmark of February 27, 2018. Id. at 3. The appointment card lists an appointment on March 13, 2018 at 9am. Id. C. The Parties’ Arguments Petitioner argues that the medical records consistently placed the onset of her shoulder pain within 48 hours of her December 24, 2017 flu vaccine. Petitioner’s Motion for a Ruling on the Record, filed May 13, 2022, at *7 (“Mot.”). Petitioner cites her first care for her shoulder on April 6, 2018, when she reported that she had a flu shot and since then had difficulty raising her arm. Id. When she saw another orthopedist for a second opinion on May 7, 2018, she reported that her shoulder pain started on December 24, 2017 when she was given a flu vaccine. Id. He doctor diagnosed her with adhesive capsulitis, likely triggered by aberrant placement of a flu vaccine. Id. And at her physical therapy evaluation on May 18, 2018, she complained of left shoulder adhesive capsulitis and pain that began on December 24, 2017 after a flu vaccination that was very high on her arm. Id. Petitioner further relies on her Facebook posts, arguing that they are contemporaneous records documenting her injury and noting the worsening over time. Mot. at *8 (citing Duda v. Sec’y of Health and Human Servs., No. 19-31V, 2021 WL 4735857, at *8 (Fed. Cl. Spec. Mstr. Aug. 10, 2021)). Finally, Petitioner cites the Federal Circuit’s decision in James-Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374 (Fed. Cir. 2021) as indicating that affidavits can be both reliable and objective evidence. Id. at *9. Petitioner adds that the fact that she did not seek medical treatment for her shoulder pain for three months by itself “sheds no light as to when that shoulder pain first began.” Id. at *6 (emphasis in original). Respondent argues that Petitioner has not shown that the onset of her shoulder pain occurred within 48 hours of vaccination. Respondent’s Response to Petitioner’s Motion, filed July 27, 2022, at *7 (ECF No. 33) (“Resp.”). Respondent does not dispute that Petitioner meets the remaining SIRVA criteria. Id. at n.5. Petitioner did not present to a medical provider until over three months after vaccination (although Respondent acknowledges that her appointment was initially scheduled for two weeks earlier). Id. In 8 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 9 of 12 Respondent’s view, the delay is not dispositive, but is relevant, citing Mueller v. Sec’y of Health and Human Servs., No. 06-775V, 2011 WL 1467938, at *9 (Fed. Cl. Spec. Mstr. Mar. 16, 2011) (“[m]emories are generally better the closer in time to the occurrence reported”). Respondent asserts that Petitioner’s reporting of immediate pain to her physician more than three months after vaccination “carries less weight because of the gap in time between the vaccination and her accounting.” Id. at *8. Respondent similarly discounts Petitioner’s Facebook posts because they were made 30 days or more after vaccination and therefore are “not as trustworthy as statements made closer in time to the alleged injury.” Id. Respondent urges particular caution with respect to Petitioner’s February 22, 2018 Facebook post reporting immediate symptoms, because the comment “coincided with her declaration that she was ‘comfort[ed]’ by the existence of the Vaccine Injury Compensation Program and would ‘possibly join a class-action suit.’ ” Resp. at *8. Respondent speculates, “Petitioner’s comments may very well have been influenced by her desire to receive financial remuneration, either through the Vaccine Program or through private litigation.” Id. Respondent cites Duda, 2021 WL 4735857, at *8, arguing that “[p]etitioner’s report of ‘immediate’ pain during her first presentation to a physician regarding her shoulder occurred ‘after she began to suspect she might have a claim in the Vaccine Program.’ ” and noting that judicial officers have long recognized that participation in litigation may impair the accuracy of a person’s memory. Id. Respondent argues that the “unreliable declaration of Mr. Lorez provides little support for petitioner’s claim” in light of his significant personal relationship with Petitioner, in addition to the fact that it is unsworn. Resp. at *9. Finally, Respondent argues that Petitioner’s affidavits do not constitute reliable, objective evidence of onset, citing Reusser v. Sec’y of Health & Human Servs., 28 Fed. Cl. 516, 523 (Fed. Cl. 1993) (“written documentation recorded by a disinterested person at or soon after the event at issue is generally more reliable than the recollection of a party to a lawsuit many years later”). Id. Petitioner replies that she has credibly explained why it took three months to see a doctor, including that she lives in a rural area and her first scheduled appointment was cancelled by the physician due to inclement weather. Petitioner’s Reply, filed Aug. 3, 2022, at *2 (ECF No. 34) (“Reply”). Respondent’s suggestion that Petitioner’s statements months after vaccination are inherently less reliable “does not take into account that for a 71-year-old woman living in a very rural part of Maine during the dead of winter, her shoulder injury was likely the most important thing in her life.” Id. at *2-3. Petitioner also argues that Respondent’s “musing that her Facebook posts should be looked at with ‘caution’ as petitioner may have posted that information with the hope of one day gaining ‘financial remuneration’ is nothing more than pure speculation.” Id. at *3. Petitioner adds that affidavits from a petitioner and their friends and family members are routinely relied on in Vaccine Program cases, and should be in this case as well. Id. at *3-4. 9 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 10 of 12 D. Factual Finding Regarding QAI Criteria for Table SIRVA 1. Onset After a review of the entire record, I find that it is more likely than not that the onset of Petitioner’s shoulder pain occurred within 48 hours of vaccine administration, specifically on the day of vaccination. I base this finding primarily on the medical records. Petitioner consistently reported that her shoulder pain began on the date of vaccination, and related her pain to the flu vaccine. Exs. 2 at 7, 3 at 15, 7 at 1. The medical records are buttressed by consistent statements in affidavits and social media posts. Exs. 8-12.6 Petitioner did delay in reporting her injury somewhat, and Respondent accurately maintains that this has relevance to the onset question. But a delay in seeking care is not uncommon in SIRVA cases, and otherwise is not “dispositive of whether a petitioner’s shoulder pain began within 48 hours.” A.P. v. Sec’y of Health & Human Servs., No. 17- 784V, 2022 WL 275785, at *23 (Fed. Cl. Spec. Mstr. Jan. 31, 2022); see also Winkle v. Sec’y of Health & Human Servs., No. 20-485V, 2021 WL 2808993, at *4 (Fed. Cl. Spec. Mstr. June 3, 2021) (“[i]t is common for a SIRVA petitioner to delay treatment, thinking his/her injury will resolve on its own” and finding that the onset of the petitioner’s pain occurred within 48 hours of vaccination in spite of a five month delay in seeking treatment); Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140, at *5 (Fed. Cl. Spec. Mstr. Mar. 30, 2018), mot. rev. denied, 142 Fed. Cl. 329 (2019) (“that petitioner delayed seeking treatment for her shoulder symptoms does not negate the value of her treatment records or render this evidence not credible, although it may speak to the severity of her injury”). Rather, delay must be viewed in the context of the entire record, including medical records, affidavits, and other evidence. In this case, there is sufficient consistent evidence supporting a finding that the onset of Petitioner’s pain was within 48 hours, and no contrary evidence. Petitioner has provided evidence explaining the delay, including the postponement of her care due to weather, unavailability of doctors, and hoping for improvement with time. Respondent’s suggestion that Petitioner’s awareness of the possibility of compensation through the Vaccine Program discredits her affidavits or other statements about her injuries is not compelling. While I do not dismiss the possibility that a petitioner could be incentivized to exaggerate their injuries by the prospect of monetary gain, that 6 The unsigned and undated letter from Mr. Lorez is consistent with medical records, affidavit, and other evidence, and thus provides corroboration, but I do not place substantial weight on it for the reasons previously mentioned. 10 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 11 of 12 does not mean that every petitioner who knows the Program exists is not credible. Here, Petitioner’s reports to medical providers were consistent and were relied on in providing care, suggesting that her providers found her credible. See Cucuras, 993 F.2d at 1528 (medical records containing information supplied to health professionals to facilitate diagnosis and treatment are generally trustworthy evidence). Her medical records document objective evidence of a shoulder injury, and her condition improved with care. After a thorough review of the record, I find that a preponderance of the evidence supports a finding that Petitioner’s shoulder pain began on the day of vaccination, which is within 48 hours. Thus, this QAI criterion is satisfied. 2. Other SIRVA QAI Criteria Respondent does not contest the remaining SIRVA QAI criteria, and I find that the record contains preponderant evidence that they are satisfied. Petitioner did not have a history of left arm pain or injury prior to December 24, 2017 flu vaccination that would explain her symptoms after vaccination. See generally Ex. 3. Her pain and reduced ROM were limited to her left shoulder, where the flu vaccine was administered, and no other condition or abnormality has been identified that would explain her post-vaccination symptoms. Exs. 2-7. E. Other Requirements for Entitlement The record contains preponderant evidence that other requirements for entitlement are satisfied as well. Petitioner received a covered vaccine in the United States. Ex. 1. She experienced the residual effects of her condition for more than six months. Ex. 6 at 1. She averred that she has not previously collected an award or settlement of a civil action for damages, and there are no civil actions pending. Ex. 8 at ¶ 14. 11 Case 1:19-vv-01301-UNJ Document 38 Filed 09/25/23 Page 12 of 12 Conclusion Based on my review of the record as a whole, I find that it is more likely than not that the onset of Petitioner’s shoulder pain occurred on the day of vaccination. I find that all other SIRVA Table requirements are met, as are other requirements for entitlement. Therefore, Petitioner’s motion for a ruling on the record that she is entitled to compensation is GRANTED. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 12 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01301-1 Date issued/filed: 2023-12-19 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 11/17/2023) regarding 41 DECISION Stipulation/Proffer, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01301-UNJ Document 45 Filed 12/19/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1301V MARTHA BUCK, Chief Special Master Corcoran Petitioner, Filed: November 17, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 27, 2019, Martha Buck filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 23, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On November 16, 2023, Respondent filed a proffer on award 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:19-vv-01301-UNJ Document 45 Filed 12/19/23 Page 2 of 5 of compensation (“Proffer”) indicating Petitioner should be awarded $35,000.00. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $35,000.00 (in pain and suffering) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 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. 2 Case 1:19-vv-01301-UNJ Document 45 Filed 12/19/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MARTHA BUCK, ) ) Petitioner, ) ) No. 19-1301V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 27, 2019, Martha Buck (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on December 24, 2017. Petition at 1. On May 13, 2022, petitioner filed a Motion for a Ruling on the Record (“Motion”) arguing that she had established entitlement to compensation for a SIRVA. ECF No. 30. Respondent filed his Response to petitioner’s Motion on July 27, 2022, recommending that entitlement to compensation be denied. ECF No. 33. Petitioner filed a Reply in support of her Motion on August 3, 2022. ECF No. 34. On August 23, 2023, the Court issued a Ruling on Entitlement, finding petitioner entitled to compensation.1 ECF No. 35. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such a damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s August 23, 2023 entitlement decision. Case 1:19-vv-01301-UNJ Document 45 Filed 12/19/23 Page 4 of 5 I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $35,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. The above amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following2: a lump sum payment of $35,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Martha Buck: $35,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:19-vv-01301-UNJ Document 45 Filed 12/19/23 Page 5 of 5 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Catherine E. Stolar CATHERINE E. STOLAR Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 353-3299 Fax: (202) 616-4310 Email: catherine.stolar@usdoj.gov DATED: November 16, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_19-vv-01301-cl-extra-10736699 Date issued/filed: 2023-12-19 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270109 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1301V MARTHA BUCK, Chief Special Master Corcoran Petitioner, Filed: November 17, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 27, 2019, Martha Buck filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 23, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On November 16, 2023, Respondent filed a proffer on award 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). of compensation (“Proffer”) indicating Petitioner should be awarded $35,000.00. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $35,000.00 (in pain and suffering) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 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. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MARTHA BUCK, ) ) Petitioner, ) ) No. 19-1301V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 27, 2019, Martha Buck (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on December 24, 2017. Petition at 1. On May 13, 2022, petitioner filed a Motion for a Ruling on the Record (“Motion”) arguing that she had established entitlement to compensation for a SIRVA. ECF No. 30. Respondent filed his Response to petitioner’s Motion on July 27, 2022, recommending that entitlement to compensation be denied. ECF No. 33. Petitioner filed a Reply in support of her Motion on August 3, 2022. ECF No. 34. On August 23, 2023, the Court issued a Ruling on Entitlement, finding petitioner entitled to compensation.1 ECF No. 35. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such a damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s August 23, 2023 entitlement decision. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $35,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. The above amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following2: a lump sum payment of $35,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Martha Buck: $35,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Catherine E. Stolar CATHERINE E. STOLAR Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 353-3299 Fax: (202) 616-4310 Email: catherine.stolar@usdoj.gov DATED: November 16, 2023 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_19-vv-01301-cl-extra-10787701 Date issued/filed: 2025-01-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10321113 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1301V MARTHA BUCK, Chief Special Master Corcoran Petitioner, v. Filed: December 27, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On August 27, 2019, Martha Buck filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. On November 17, 2023, I issued a decision awarding damages to Petitioner, based on the Respondent’s proffer. ECF No. 41. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet . In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $39,740.35 (representing $38,380.50 for attorney’s fees, $1,353.15 for attorney’s costs, and $6.70 for Petitioner’s out-of-pocket litigation costs). Petitioner Application for Attorneys’ Fees, filed May 20, 2024, ECF No. 46. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred $6.70 in out-of-pocket expenses. Id. at 2. Respondent reacted to the Motion on May 21, 2024, stating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs have been met in this case, but deferring resolution of the amount to be awarded to my discretion. ECF No. 48. On May 22, 2024, Petitioner filed a reply, reiterating her previous request. ECF No. 49. Having reviewed of the billing records submitted with Petitioner's requests, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons listed below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs to successful claimants. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. 2 Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, a few of the tasks performed by Ms. Durant are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $315.20.4 Regarding the time billed, I deem the total amount of time devoted to briefing entitlement to be excessive – although not egregiously so. See Petitioner’s Motion for a Ruling on the Record, filed May 13, 2022, ECF No. 30; Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Ruling on the Record, filed Aug. 3, 2022, ECF No. 34. Petitioner’s counsel expended approximately 19.8 hours drafting the entitlement brief and 10.7 hours drafting the reply brief, totaling 30.55 hours. ECF No. 46-1 at 6-7. It is unreasonable for counsel to spend so much time briefing the issue of entitlement in this case, where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 6 in 3 These entries, drafting basic documents such as an exhibit list, cover sheet, and statement of completion, are dated as follows: 9/9/19 (two entries), 1/18/22 (two entries), and 5/13/22. ECF No. 46-1 at 3, 5-6. 4 This amount consists of ($380 - $156) x 0.7 hrs. + ($441 - $177) x 0.6 hrs. = $315.20. 5 This total is calculated as follows: 23.0 hours billed on 4/27/22, 4/29/22, 5/4/22, 5/5/22, 8/1/22, and 8/2/22, by Richard Amada, at a rate of $420; and 7.5 hours billed on 5/13/22, 7/27/22, and 8/3/22, by Leah Durant at a rate of $441. ECF No. 46-1 at 6-7. 6 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 3 which attorneys have accomplished this task in about half the time. 7 See, e.g., Fletcher v. Sec’y of Health & Hum. Servs., No. 20-0127V (Apr. 25, 2024) (12.7 and 9.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Lamine v. Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 2024) (8.9 and 7.2 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Davenport v. Sec’y of Health & Hum. Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Graczyk v. Sec’y of Health & Hum. Servs., No. 21-0376V (Feb. 9, 2024) (5.8 and 8.3 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Sisneros v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb. 8, 2024) (0.8 and 10.5 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Strand v. Sec’y of Health & Hum. Servs., No. 20-0365V (Feb. 5, 2024) (7.9 and 7.2 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Griswold v. Sec’y of Health & Hum. Servs., No. 19-1674V (May 30, 2024) (5.0 and 2.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); McCallum v. Sec’y of Health & Hum. Servs., No. 19-1991V (May 19, 2023) (8 hours billed for drafting an entitlement brief); Weso v. Sec’y of Health & Hum. Servs., No. 19-0596V (May 16, 2024) (6.0 and 1.1 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively). The circumstances of this case did not warrant devoting so much time to briefing. The only area of dispute involved pain onset. See Respondent’s Rule 4(c) Report, filed Oct. 14, 2021, at 6-7, ECF No. 24; 42 C.F.R. § 100.3(c)(10)(ii) (2017). Of course, having prevailed in this case, a fees award is generally appropriate. ECF No. 44. But the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for entitlement briefing (a total of 30.5 hours, or $12,967.50) by ten percent.8 Such an across-the-board reduction (which I am empowered to adopt) 9 fairly captures the overbilling evidenced by this work, without 7 These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Mar. 24, 2024). 8Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023). 9 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 4 requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $1,296.75.10 ATTORNEY AND PETITIONER COSTS Petitioner has provided supporting documentation for all claimed costs. ECF No. 46-2. And Respondent offered no specific objection to the rates or amounts sought. ECF No. 48. Thus, I find the amount of costs sought to be reasonable. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded the total amount of $38,128.4011 as follows: • A lump sum of $38,121.70, representing reimbursement in the amount of $36,768.55 for attorney’s fees and $1,353.15 for attorney’s costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Leah VaSahnja Durant; and • A lump sum of $6.70, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.12 10 This amount is calculated as follows: 23.0 hrs. x $420 x .10 + 7.5 x $441 x .10 = $1,296.75. 11 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Hum. Servs., 924 F.2d 1029 (Fed. Cir.1991). 12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 6