VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01535
Package ID: USCOURTS-cofc-1_19-vv-01535
Petitioner: Janet Niemi
Filed: 2019-10-02
Decided: 2022-08-05
Vaccine: influenza
Vaccination date: 2019-01-16
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 75810

AI-assisted case summary:
Janet Niemi filed a petition for compensation under the National Vaccine Injury Compensation Program on October 2, 2019, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on January 16, 2019. Initially, the Respondent opposed the claim, arguing that the injury did not manifest within 48 hours of vaccination. On September 13, 2021, following a ruling on August 10, 2021, by Chief Special Master Brian H. Corcoran, that Petitioner's left shoulder pain began within 48 hours of vaccination, the Respondent conceded entitlement. The case then proceeded to determine damages. On August 5, 2022, Chief Special Master Corcoran issued a decision awarding Janet Niemi $75,000.00 for pain and suffering and $810.00 for past unreimbursable expenses, totaling $75,810.00. The injury was classified as a Table SIRVA claim. Petitioner's counsel was David John Carney of Green & Schafle LLC, and Respondent's counsel was Mollie Danielle Gorney, and later Camille Collett, from the U.S. Department of Justice. The public decision does not describe the specific mechanism of injury or name any medical experts. The decision details the Petitioner's medical history, including visits to primary care providers and orthopedists, physical therapy, and steroid injections, noting that her symptoms improved with conservative treatment but continued to cause pain and limited range of motion. The Special Master compared Petitioner's case to several prior SIRVA cases to determine the appropriate award for pain and suffering, ultimately finding $75,000.00 to be fair compensation. The award for past unreimbursable expenses was based on co-pays for medical visits related to the injury. The award was a lump sum payment.

Theory of causation field:
Petitioner Janet Niemi received an influenza vaccine on January 16, 2019. She alleged a shoulder injury related to vaccine administration (SIRVA). The Respondent initially contested entitlement, arguing the first symptoms did not manifest within 48 hours of vaccination. However, the Special Master ruled that onset of pain occurred within 48 hours. Respondent then conceded entitlement, agreeing that Petitioner had no recent history of left shoulder pain, the onset of pain was within 48 hours of vaccination, the pain was limited to the vaccinated shoulder, and no other condition explained the pain. Respondent also agreed Petitioner suffered residual effects for more than six months. The injury was classified as a Table SIRVA claim. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on September 13, 2021, and a decision awarding damages on August 5, 2022. Petitioner was awarded $75,000.00 for pain and suffering and $810.00 for past unreimbursable expenses, totaling $75,810.00. The public text does not detail the specific mechanism of injury or name any medical experts. Petitioner's counsel was David John Carney (Green & Schafle LLC), and Respondent's counsel was Mollie Danielle Gorney and Camille Collett (U.S. Department of Justice).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01535-0
Date issued/filed: 2021-09-13
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/10/2021) regarding 35 Findings of Fact & Conclusions of Law,, Scheduling Order,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1535V
UNPUBLISHED
JANET NIEMI, Chief Special Master Corcoran
Petitioner, Filed: August 10, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On October 2, 2019, Janet Niemi filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (SIRVA) after receiving an influenza (“flu”) vaccination on January 16,
2019. ECF 32 at 1-2. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Fact Ruling will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 2 of 6
For the reasons discussed below, I find that the onset of Petitioner’s SIRVA more
likely than not occurred within 48 hours of vaccination.
I. Relevant Procedural History
After an initial status conference in February 2020, Petitioner was ordered to file
outstanding medical records. ECF 12. Over the next several months, Petitioner
submitted additional records, and she filed an amended statement of completion in June
2020. ECF 17. On January 29, 2021, Respondent filed a status report indicating that he
was interested in pursuing settlement discussions. ECF 24. One month later, Petitioner
reported that the parties had reached an impasse in their negotiations. ECF 27.
Respondent was subsequently ordered to file a Rule 4(c) report.
In his report, Respondent asserts that there is not a preponderance of evidence
demonstrating the requisite facts necessary to establish a Table SIRVA injury. ECF 28.
Specifically, Respondent argues that “the medical records do not establish that
[P]etitioner suffered the first symptoms or manifestation of onset of a shoulder injury within
48 hours of the January 16, 2019 flu vaccination.” Id. at 7. Petitioner then requested that
she be allowed the opportunity to file a motion for a ruling on the record. ECF 29. On May
25, 2021, Petitioner filed her Motion for Ruling on the Record and Brief in Support of
Damages.3 ECF 31. Respondent filed his responsive brief one month later. ECF 34.
Therefore, this matter is ripe for adjudication.
II. Issue
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours as set forth in the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
SIRVA. 42 C.F.R. § 100.3(c)(10)(ii).
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,
3 While Petitioner briefed damages in her Motion for Ruling on the Record, she had been advised in the
Scheduling Order dated May 11, 2021, to limit her argument to the issue of entitlement. ECF 29. Pursuant
to this order, Respondent addressed only the issue of entitlement in his brief. ECF 34. Accordingly, I find
Petitioner’s briefing of damages premature (although if any further briefing of damages is called for,
Petitioner will be given the opportunity to update or supplement any facts or argument made on this subject
to date).
2

Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 3 of 6
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
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
3

Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 4 of 6
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 Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
I make these findings after a complete review of the record, including all medical
records, affidavits, testimony, expert reports, respondent’s Rule 4 report, and additional
evidence filed. Specifically, I base the findings on the following evidence:
• On January 16, 2019, Petitioner received an intramuscular flu vaccine in
her left deltoid. Ex 1 at 2-3.
• On February 14, 2019, Petitioner visited the emergency room (ER) for a
head injury after falling off a chair at work. Ex 10 at 59. While at the ER,
Petitioner did not report pain in any extremities and physical examination
(PE) revealed full range of motion. Id. at 61.
• On February 19, 2019, Petitioner followed up telephonically with a nurse at
her primary care provider’s (PCP) office for her head injury. Ex 3 at 49.
During the call, she denied difficulty moving her arms. Id.
• On March 5, 2019, Petitioner visited her PCP to discuss her fall in February
2019. Ex 3 at 51. She now also reported left arm pain and decreased
range of motion “after” receiving her flu shot. Id. She showed
decreased range of motion in the left shoulder, and the PCP questioned if
an intra-articular injection of the flu vaccine caused Petitioner’s injury. Id. at
53. Petitioner was referred to an orthopedist. Id.
• On March 20, 2019, Petitioner presented to Dr. Daniel Bauk, an orthopedist,
with a complaint of “got her flu shot on January 17 [sic], 2019, and the next
day began having pain in her shoulder.” Ex 5 at 8. Dr. Bauk’s exam
revealed diffuse tenderness to palpation and pain with range of motion, and
he diagnosed Petitioner with adhesive capsulitis. Id. at 9.
• On April 11, 2019, Petitioner underwent an initial evaluation for physical
therapy, at which time she reported left shoulder pain with onset of
4

Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 5 of 6
January 17, 2019 after receiving a flu vaccine that was injected “too high”
on her shoulder. Ex 9 at 11.
• On September 13, 2019, Petitioner had a consultation with Dr. Peter
Johnston, another orthopedist. Ex 8 at 4. She complained of “flu shot back
in January and since has been struggling with significant left shoulder
pain.” Id.
• In her affidavit, Petitioner states that “within two days of receiving the
injection, [she] began to experience pain in [her] arm at the injection
site that spread to [her] shoulder over the ensuing days.” Ex 2 at 2.
Respondent argues that the seven-week gap between Petitioner’s flu vaccine and
first recorded report of left arm pain fails to support onset within 48 hours. ECF 34 at 6-8.
He specifically focuses on the fact that Petitioner sought medical care twice between the
time she received the subject vaccination and the first time she reported shoulder pain to
a medical provider. Id. at 7. However, it was not unreasonable for Ms. Niemi not to have
reported shoulder pain at her ER visit, as she was likely focused on treating her head
injury, a more concerning medical event.4 Additionally, while exam of Petitioner’s upper
extremities at the ER was noted to be normal, such ER-provided examinations are often
cursory, especially when the visit is focused on an emergent injury to another part of the
body. Further, while Respondent in his brief characterizes Petitioner’s February 19, 2019
contact with her PCP’s office as an “intervening medical visit,” the record reflects that this
was in fact only a phone call with a nurse to specifically discuss her head injury. Ex 3 at
49.
In focusing on the admitted gap in treatment, Respondent seems to be arguing
that the only way Petitioner can show she experienced symptoms within 48 hours of
vaccination is with contemporaneous records created within that two-day timeframe. But
the Vaccine Act clearly does not require that symptoms be recorded within a specific
timeframe to be preponderantly established. Rather, it requires only that onset occurs in
the relevant timeframe. 42 U.S.C. § 300aa-13. Of course, the reliability of onset evidence
may hinge on when and how onset is recorded, and evidence of post-vaccination pain
from a record created no more than two days post-vaccination would constitute
particularly strong evidence of onset. But a petitioner can still prevail even if the evidence
establishing onset comes from a later period. Ultimately, resolving how to weigh the
evidence pro and con on such matters falls within the purview of the special masters. Id.
Given the above, I find that the two records at issue (specifically Petitioner’s report
to her orthopedist on March 20, 2019, and her physical therapist on April 11, 2019) are
consistent with Petitioner’s affidavit testimony that her left shoulder pain began with 48
4 Indeed, the medical records from her ER visit reflect that a CT scan of the brain showed a left posterolateral
occipital contusion and a subgaleal hematoma. Ex 10 at 61-63.
5

Case 1:19-vv-01535-UNJ Document 37 Filed 09/13/21 Page 6 of 6
hours of vaccination. In addition, I do not find that the gap between vaccination date and
Petitioner’s first report of shoulder pain greatly weakens the conclusion that her claimed
onset “more likely than not” occurred within the timeframe for a Table SIRVA injury. While
some cases might be stronger and some weaker, the evidence in this case is enough to
preponderantly establish that the onset of Petitioner’s left shoulder injury occurred within
48 hours of her January 16, 2019 flu vaccination.
V. Scheduling Order
Given my findings of fact regarding the onset of Ms. Niemi’s pain, Respondent
should evaluate and provide his current position regarding the merits of Petitioner’s case.
Accordingly, Respondent shall file, by no later than Monday, September 13,
2021, an amended Rule 4 report reflecting Respondent’s position in light of the
above fact finding.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01535-1
Date issued/filed: 2021-10-14
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/13/2021) regarding 38 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01535-UNJ Document 42 Filed 10/14/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1535V
UNPUBLISHED
JANET NIEMI, Chief Special Master Corcoran
Petitioner, Filed: September 13, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On October 2, 2019, Janet Niemi 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) after receiving an influenza (“flu”) vaccine on January 16, 2019.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On April 16, 2021, Respondent filed a Rule 4(c) report in which he recommended
that entitlement to compensation be denied, asserting that Petitioner had not established
by a preponderance of the evidence that she suffered the first symptoms or manifestation
of onset of her shoulder injury within 48 hours of the January 16, 2019 flu vaccination.
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). 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 (2012).

Case 1:19-vv-01535-UNJ Document 42 Filed 10/14/21 Page 2 of 2
ECF 28. Petitioner subsequently filed a motion for ruling on the record arguing that the
evidence satisfies the Table SIRVA requirements. ECF 31. On August 10, 2021, I issued
a fact ruling finding that Petitioner’s left shoulder pain began within 48 hours of
vaccination. ECF 35. In my ruling, I ordered Respondent to file an amended Rule 4 report
reflecting his position in light of my fact findings. Id. at 6.
On September 13, 2021, Respondent filed an amended Rule 4(c) report in which
he states that he does not contest that Petitioner is entitled to compensation in this case.3
Respondent’s Rule 4(c) Report at 6. Specifically, Petitioner had no recent history of pain,
inflammation, or dysfunction of her left shoulder; the onset of Petitioner’s pain occurred
within 48 hours after receipt of an intramuscular vaccination; Petitioner’s pain was limited
to the shoulder in which the vaccine was administered; and no other condition or
abnormality has been identified to explain Petitioner’s left shoulder pain. Id. at 7.
Respondent further agrees that Petitioner suffered the residual effects of her condition for
more than six months. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Given my factual findings regarding the onset of Petitioner’s SIRVA symptoms, Respondent “advises
that he will not defend the case on other grounds during further proceedings before the Office of Special
Masters.” ECF 36 at 2. Respondent “reserve[d] his right to a potential appeal of [my] ruling and maintains
that a finding of entitlement to compensation cannot be sustained if the Finding of Fact is vacated or
overturned on appeal.” Id. at 2, 7.
2

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DOCUMENT 3: USCOURTS-cofc-1_19-vv-01535-2
Date issued/filed: 2022-08-05
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 07/05/2022) regarding 48 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (ke) Service on parties made.
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Case 1:19-vv-01535-UNJ Document 54 Filed 08/05/22 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1535V
UNPUBLISHED
JANET NIEMI, Chief Special Master Corcoran
Petitioner, Filed: July 5, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
David Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Camille Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 2, 2019, Janet Niemi filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (SIRVA) after receiving an influenza (“flu”) vaccination on January 16,
2019, and subsequently suffered a left shoulder injury related to vaccine administration
(SIRVA). Petition at 1-2. The case was assigned to the Special Processing Unit (“SPU”)
of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01535-UNJ Document 54 Filed 08/05/22 Page 2 of 11
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $75,810.00, representing $75,000.00 for actual pain and
suffering and $810.00 for past unreimbursable expenses.
I. Relevant Procedural History
Respondent initially opposed compensation in this case, taking the position that
“the medical records do not establish that [P]etitioner suffered the first symptoms or
manifestation of onset of a shoulder injury within 48 hours of the January 16, 2019 flu
vaccination.” ECF 28 at 7. After allowing the parties to brief this issue, I issued a ruling on
entitlement, finding that the onset of Petitioner’s pain occurred within 48 hours of
vaccination and that Petitioner’s injury otherwise met all requirements for a Table SIRVA.
ECF 38. One month later, the parties reported an impasse on the issues of Petitioner’s
pain and suffering and her past unreimbursable expenses. ECF 41. Both parties have
been provided the opportunity to brief the issue of Petitioner’s damages, and this 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 awarding such expenses which (i) resulted from the vaccine-
related injury for which the 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 & Hum. Servs., No. 93-0092V, 1996
WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. 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 & Hum. 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 (citing McAllister v. Sec’y of Health
2

Case 1:19-vv-01535-UNJ Document 54 Filed 08/05/22 Page 3 of 11
& Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26,
1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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 & Hum. 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 that of my
predecessor Chief Special Masters) adjudicating similar claims.3 Hodges v. Sec’y of
Health & Hum. 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 & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl.
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 589-90. 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 593-95. 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.
III. Prior SIRVA Compensation Within SPU4
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
3 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.
4 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
3

Case 1:19-vv-01535-UNJ Document 54 Filed 08/05/22 Page 4 of 11
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.5
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
5 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
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Damages Proffered Stipulated Stipulated6
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.7
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
Although some petitioners asserted residual pain, the prognosis in these cases was
positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
6 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
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sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that
Petitioner is a competent adult with no impairments that would impact her awareness of
her injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury.
In performing this analysis, I have reviewed the record as a whole, including all
medical records and affidavits filed, as well as the parties’ briefs and other pleadings. I
have also considered prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I have
based my ultimate determination on the specific circumstances of this case.
A. The Parties’ Arguments
In arguing that she should be awarded $90,000.00 for her pain and suffering,
Petitioner compares the facts and circumstances in her case favorably with the
experiences of the petitioners in Danielson, Dhanoa, Gentile, Kent, and Weber.8 ECF 31
at 21-25. Petitioner emphasizes the similarities between these cases and hers with regard
to delay in seeking treatment, number of physical therapy sessions and steroid injections,
MRI findings, and reported pain level. Id.
Characterizing Petitioner’s injury as comparatively minor, requiring only
conservative treatment, Respondent argues in reaction that Petitioner should receive the
lesser sum of $62,500.00 for her pain and suffering. ECF 43 at 2. Respondent maintains
that the facts of Petitioner’s case are more comparable to those in Murray and Edens,
cases where the petitioners received similar treatment to Petitioner but whose symptoms
8 Danielson v. Sec’y of Health & Human Servs., No. 18-1878V, 2020 WL 8271642 (Fed. Cl. Spec. Mstr.
Dec. 29, 2020 (awarding $110,000.00 for past pain and suffering); Dhanoa v. Sec’y of Health & Human
Servs., No 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for
actual pain and suffering); Gentile v. Sec’y of Health & Human Servs., No. 16-980V, 2020 WL 3618909
(Fed. Cl. Spec. Mstr. June 5, 2020) (awarding $85,000.00 for actual pain and suffering); Kent v. Sec’y of
Health & Human Servs., No 17-0073V, 2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019) (awarding
$80,000.00 for actual pain and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-399V, 2019
WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for past pain and suffering).
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resolved more quickly.9 Id. at 13-14.
B. Analysis
The guidance provided by the Graves decision is clear (although not controlling),10
and I have previously addressed the more general arguments about calculation of pain
and suffering damages made by Respondent during expedited “Motions Day” hearings
and in other damages decisions. I have specifically rejected Respondent’s argument “that
the amounts awarded in proffered cases are a more accurate gauge of the appropriate
amount to be awarded than reasoned decisions from the court and special masters.”
Sakovits, 2020 WL 3729420, at *4.
1. The Duration and Severity of Petitioner’s SIRVA Injury
Petitioner, a substitute teacher, received a flu vaccine in her left shoulder at
Walgreens Pharmacy on January 16, 2019. Ex 1 at 3. Forty-eight days after vaccination,
she presented to her primary care provider (PCP) with complaints of pain and decreased
range of motion “since” receiving her flu shot. Ex 3 at 51. Petitioner rated her pain as 8/10,
and physical examination revealed decreased range of motion. Id. 52-53. She was
prescribed prednisone and referred to an orthopedist.11 Id. at 53.
Two weeks later, on March 20, 2019, Petitioner visited Dr. Daniel Bauk, an
orthopedist at Southern Maryland Orthopaedic (SMO). At that time, Petitioner reported
minimal to no pain at rest, but stated that she experienced “deep pain” with movement.
Ex 5 at 8. Physical examination revealed mild diffuse tenderness to palpation and pain
with range of motion, but good strength in the left shoulder, and Dr. Bauk diagnosed
Petitioner with adhesive capsulitis and referred Petitioner to physical therapy. Id. at 9.
At her initial physical therapy evaluation on April 11, 2019, Petitioner had equal
active range of motion in both her left and right shoulders; however, she had decreased
passive range of motion in the left shoulder compared to her right. Ex 9 at 12. She also
displayed normal strength. Id. At a follow-up appointment with Mark Musket, a physician
assistant at SMO on May 1, 2019, Petitioner continued to display “good strength” but
decreased range of motion. Ex 5 at 7. PA Musket administered a steroid injection at this
9 Murray v. Sec’y of Health & Human Servs., No. 18-534V, 2020 WL 4522483 (Fed. Cl. Spec. Mstr. July 6,
2020) (awarding $65,000.00 for actual pain and suffering); Edens v. Sec’y of Health & Human Servs., No.
19-1110V, 2021 WL 2182720 (Fed. Cl. Spec. Mstr. Apr. 26, 2021) (awarding $70,000.00 for past pain and
suffering).
10 See supra Section II (for further discussion).
11 Petitioner was prescribed prednisone to treat her asthmatic bronchitis. But her PCP advised that the
medication could potentially also reduce the pain and inflammation in her shoulder. Ex 3 at 53.
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visit, and within a month Petitioner showed “great improvement” in her range of motion.
Id. at 5.
On August 14, 2019, Petitioner returned to PA Musket with complaints of continued
pain with range of motion. Ex 6 at 4. During physical examination, Petitioner did report
pain with apprehension testing and forward elevation; however, she had “near
comparable” range of motion in the left shoulder compared to the right. Id. at 5. PA Musket
referred Petitioner to Dr. Peter Johnston, a shoulder specialist at SMO. At her first
appointment with Dr. Johnston, on September 13, 2019, Petitioner continued to display
“good” strength, but she did have decreased range of motion in all planes. Ex 8 at 5. Dr.
Johnston administered a second steroid injection, with Petitioner again reporting good
pain relief after the procedure. Id.; Ex 16 at 15. At two subsequent appointments with Dr.
Johnston, Petitioner continued to complain of pain with range of motion testing; however,
as of December 27, 2019, her range of motion was described as “good.” Ex 11 at 5-6; Ex
16 at 15. Dr. Johnston also administered a third steroid injection on this date. Ex 11 at 6.
While Petitioner continued to report “lingering pain” in her left shoulder during a
January 2020 visit with her PCP, she also stated that she was “much improved” with
“better” range of motion, and physical examination revealed normal findings. Ex 17 at
531, 535. Four months later, Petitioner returned to Dr. Johnston, at which time she
reported she was at 85% of her prior functioning and rated her pain as 2/10, while physical
examination revealed decreased range of motion in all planes and 4+/5 supraspinatus
strength. Ex 12 at 8-9.
Due to Petitioner’s continued symptoms, Dr. Johnston ordered an MRI of the left
shoulder, which was interpreted by the radiologist as showing moderate AC joint
hypertrophic changes/arthrosis and mild rotator cuff tendinopathy, but no significant
tendinitis or adhesive capsulitis, no rotator cuff tear, and no labral tear or effusion.12 Ex
16 at 20. While Petitioner did report some difficulty with range of motion at an appointment
with Dr. Johnston in June 2020, by August 2020 she stated that she was “minimally
symptomatic” and “overall fairly satisfied with her shoulder.” Ex 12 at 6-7, 13; Ex 16 at 7.
Physical examinations also continued to show improvement in range of motion and
strength. Ex 12 at 7, 13; Ex 16 at 8. After her August 2020 visit with Dr. Johnston,
Petitioner did not receive any additional care for her shoulder for more than a year, when,
in October 2021, she had one virtual visit with a primary care nurse practitioner, at which
time she reported intermittent pain and decreased range of motion in her left shoulder
and requested a referral to physical therapy. Ex 17 at 44-45. No subsequent records have
been submitted.
12 In his treatment notes, Dr. Johnston interpreted the MRI images as showing “what looks like a leading
edge full-thickness tear [and] rotator cuff tendinopathy.” Ex 12 at 7, 13.
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In her initial affidavit, dated August 16, 2019, Petitioner alleged that the pain
caused by her shoulder injury interfered with her sleep and activities of daily living (ADLs).
Ex 2 at ¶¶ 7, 16. She also reported difficulty socializing due to her pain level. Id. at ¶ 20.
In a supplemental affidavit dated May 21, 2021, Petitioner stated that her condition has
not changed since her last visit with Dr. Johnston in August 2020. Ex 15 at ¶ 9. Petitioner
further alleged that she continues to experience residual shoulder pain, which she rated
as 3/10 at the worst, when driving, reaching behind her back, and performing ADLs. Id.
at ¶¶ 4, 6, 10. She has also had to “adjust most aspects of daily life” to “accommodate for
the limited mobility in [her] shoulder” and continues to have difficulty socializing. Id. at ¶
5, 7.
2. Comparison to Other Awards
The question in this case is not whether Petitioner is entitled to any compensation
for her pain and suffering, but rather what amount of compensation is justified, based
upon the facts of the case and considered relevant input. This determination is not an
exact science but more of an art. While it is tempting to “split the difference” and award
an amount halfway between the amounts proposed by the parties (acknowledging that in
this case, the parties’ respective positions reasonably “frame” high and low potential
awards), each petitioner deserves an examination of the specific facts in his or her case.
Thus, while amounts ultimately awarded may end up falling somewhere in the range
between the awards proposed by both parties, this result flows from a specific analysis of
Ms. Niemi’s personal circumstances.
Overall, the record establishes that Petitioner received the type of conservative
treatment generally seen in cases featuring mild to moderate SIRVA injuries. While she
does report continued shoulder pain, Petitioner described herself as “minimally
symptomatic” 15 months after vaccination. Ex 12 at 7, 13. She stopped receiving active
treatment approximately 18 months after vaccination and has complained of shoulder
pain at only one medical visit that date. Ex 17. In contrast, the petitioners in Danielson,
Gentile, and Dhanoa, who also delayed seeking treatment, received multiple steroid
injections, and attended a similar number of physical therapy sessions as Petitioner, had
evidence demonstrating the persistence of their pain three to five years after
vaccination.13
Furthermore, while the petitioner in Kent also delayed seeking treatment, this was
attributed in part because to her status as a Medicaid recipient (i.e., she had difficulty
finding an orthopedic surgeon who would accept her insurance). Whereas the petitioner
13 Danielson, 2020 WL 8271642, at 4-5; Gentile, 2020 WL 3618909, at *13; Dhanoa, 2018 WL 1221922, at
*6.
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in Kent did not have her first visit with an orthopedist until almost five months after
vaccination, at which time she had “profoundly limited active and passive range of
motion,14 Petitioner had completed 22 physical therapy sessions within that same
timeframe and was rating her pain as 1/10 at best. Ex 9 at 56, 61. Finally, while Petitioner
has accurately characterized the treatment received by the petitioner in Weber as
conservative, the amount awarded for pain and suffering included consideration of the
petitioner’s difficulty caring for her newborn and pursuing her hobbies due to her SIRVA,
as well as the fact that she was in the midst of recovering from a non-vaccine related
injury in her opposite shoulder,15 unique factors that are not present in the current case.
The facts of Edens, one of the cases cited by Respondent, are also insufficiently
similar to serve as an appropriate comparison. Murray, however, does provide some
useful guidance. The petitioner in Murray underwent three injections (two steroid and one
lidocaine), attended 15 physical therapy and 22 chiropractic sessions, and was prescribed
narcotic pain medication,16 with substantial resolution of her symptoms within 12
months.17 It thus is somewhat comparable to the present facts. But I did note in awarding
damages therein that “not all of [the petitioner’s symptoms] appear[] to have been the
result of the SIRVA injury,” and thus the case was “distinguishable from the kind of
petitioner whose injury occurs without any prior or recent ongoing medical problems.”
Murray, at *4. Ms. Niemi did not have any additional medical conditions, suggesting that
a slightly higher award to that in Murray is appropriate. Therefore, I find that $75,000.00
for past pain and suffering is appropriate compensation in this case.
V. Appropriate Compensation for Past Unreimbursable Expenses
The majority of Petitioner’s medical expenses were covered by her private health
insurance. However, she incurred a $30.00 per visit copay for 27 medical visits, for a total
of $810.00. ECF 31 at 25. Respondent proposes to award only $780.00, arguing that
Petitioner has not provided evidence to substantiate that one visit (on October 25, 2019)
was related to her vaccine injury. ECF 43 at 7.
Section 15(a)(1)(A) of the Act provides that a petitioner be awarded past expenses
related to the “diagnosis and medical or other remedial care determined to be reasonably
14 Kent, 2019 WL 5579493, at *3.
15 Weber, 2019 WL 2521540, at *3-4.
16 In her initial affidavit, Petitioner alleged that she is “unable to take any painkillers” because she works
with children. Ex 2 at ¶ 19. However, there is no indication in the record that anything other than
NSAIDs/steroids were ever discussed with a treatment provider.
17 Murray, 2020 WL 4522483, at *1-2.
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necessary,” or “for rehabilitation, developmental evaluation, special education, vocational
training and placement, case management services, counseling, emotional or behavioral
therapy, residential and custodial care and service expenses, special equipment, related
travel expenses, and facilities determined to be reasonably necessary.” 42 U.S.C. §
300aa-15(a)(1)(A).
Petitioner has provided an explanation of benefits statement reflecting a copay of
$30.00 for a visit at SMO18 on October 25, 2019. ECF 31 at 44. Furthermore, a review of
Petitioner’s medical records shows that she was evaluated and treated by Dr. Johnston,
her shoulder specialist at SMO, on this date. Ex 16 at 15-16. This substantiates
Petitioner’s claim that this expense was incurred for the medical care of her vaccine-
related injury. Therefore, I find that Petitioner is entitled to an award of $810.00 for actual
unreimbursable expenses.
VI. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $75,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.19 I also find that Petitioner
is entitled to $810.00 in actual unreimbursable expenses.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $75,810.00 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.20
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18 Also referred to in some records as the Centers for Advanced Orthopaedics, LLC. See Ex 2 at ¶ 22.
19 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
20 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.
11