VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01543
Package ID: USCOURTS-cofc-1_19-vv-01543
Petitioner: Elizabeth Johnson
Filed: 2019-10-03
Decided: 2023-05-22
Vaccine: influenza
Vaccination date: 2018-10-05
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 50877

AI-assisted case summary:
Elizabeth Johnson filed a claim under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine she received on October 5, 2018. The case proceeded as a Table claim, meaning the injury is presumed to be vaccine-related if certain criteria are met. Johnson argued that she met the criteria for a SIRVA, including no prior history of shoulder issues that would explain her symptoms, onset of pain within 48 hours of vaccination, pain limited to the shoulder, and no other condition explaining her symptoms. The respondent contested entitlement, arguing that Johnson did not meet the severity requirement, that her pain was not limited to the shoulder, and that her onset was not within 48 hours. The court found that Johnson met the Table requirements for a SIRVA, including the six-month severity requirement, and was therefore entitled to compensation. The court awarded Johnson $50,000.00 for pain and suffering and $877.46 for unreimbursed out-of-pocket expenses, totaling $50,877.46. The court noted that while Johnson had some prior shoulder pain, it was not of a nature or recency to explain her post-vaccination symptoms, and that her pain, despite some initial radiation, was ultimately determined to be limited to her left shoulder. The court found the onset of pain to be within 48 hours of vaccination, though some records were imprecise. The award for damages was based on a finding of a mild SIRVA with sporadic treatment over approximately two years.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01543-0
Date issued/filed: 2023-05-22
Pages: 17
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/19/2023) regarding 72 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:19-vv-01543-UNJ Document 75 Filed 05/22/23 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1543V
UNPUBLISHED
ELIZABETH JOHNSON, Chief Special Master Corcoran
Petitioner, Filed: April 19, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Statutory Six Month Requirement
Respondent. Influenza (Flu); Shoulder Injury
Related to Vaccine Administration
(SIRVA)
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.
Parisa Tabassian, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On October 3, 2019, Elizabeth Johnson 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”) caused by an influenza (“flu”) vaccine administered on October
5, 2018. Petition at 1. 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-01543-UNJ Document 75 Filed 05/22/23 Page 2 of 17
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $50,000.00 in damages, representing compensation for actual pain and
suffering, plus $877.46 for out-of-pocket unreimbursed expenses.
I. Relevant Procedural History
Petitioner filed this claim on October 3, 2019. ECF No. 1. On April 9, 2021,
respondent filed a status report stating that he was willing to engage in tentative
settlement discussions. ECF No. 43. The parties engaged in settlement discussions
thereafter but were unable to come to an agreement. Accordingly, Respondent thereafter
filed a Rule 4(c) Report contesting entitlement on December 1, 2021. ECF No. 54.
On December 7, 2021, Petitioner filed a status report requesting permission to file
a motion for a ruling on the record. ECF No. 58. Petitioner did so on February 14, 2022.
Petitioner’s Motion for a Ruling on the Record (“Mot.”), ECF No. 61. Petitioner argues
therein that she meets the table definition of a SIRVA (id. at 8-14), and requests an award
of $100,000.00 for actual pain and suffering, plus $1,070.76 for unreimbursed out-of-
pocket expenses. Id. at 17-23.
Respondent filed a response on February 18, 2022. Respondent’s Response to
Petitioner’s Motion for a Ruling on the Record (“Opp.”), ECF No. 62. Respondent argues
that Petitioner has not met the severity requirement of the Vaccine Act (id. at 11-12), and
has not otherwise met the requirements of a Table claim (id. at 12-14). Respondent also
argues that, if Petitioner can establish compensation, an award of not-more-than
$50,000.00 for pain and suffering is more appropriate in this case. Id. at 15. Further,
Respondent agrees to $804.51 of the out-of-pocket expenses, but objects to the
remainder. Id. at 21-22.
Petitioner filed a reply on February 25, 2022, addressing Respondent’s arguments.
Petitioner’s Reply (“Reply”), ECF No. 65.
II. Petitioner’s Medical Records
Prior to the relevant vaccination, Petitioner was seen intermittently beginning in
2011 for neck, back, and shoulder pain. See Ex. 6 at 7 (noting Petitioner had a history of
lower back pain “since she had a car accident several years ago”); Ex. 12 at 2-3 (care for
injuries associated with jumping off a dock onto a raft). She also obtained periodic
chiropractic care to treat neck and back pain. See, e.g., Ex. 20 at 11-12 (record from
December 15, 2015 for care related to cervical spine tension and headaches); Ex. 4 at
29-30 (record from 2016 for care related to upper back and shoulder pain).
2

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Petitioner received a flu vaccine in her left shoulder on October 5, 2018, at her
place of employment, North Memorial Medical Center. Ex. 1 at 1, Ex. 3 at 1.3 Three weeks
later, on October 26, 2018, Petitioner saw Dr. Graff at Caron Chiropractic. Ex. 4 at 57-58.
She reported that she had a flu shot “earlier this week” and had experienced a lot of
aching in her left arm, shoulder, and pectoral area “since then.” She also stated that it
“felt like her veins were ‘pulsing’ in her left pectoral area the day following.” Id. at 57. Dr.
Graff performed manual chiropractic manipulation and acupuncture. Id. at 57-58.
Petitioner saw Dr. Graff again on November 9, 2018. The record notes that
“[Petitioner] states her shoulder was sore for another 1-2 days, but then back to normal.
She states her low back is sore and would like to work on that today.” Ex. 4 at 59-60.4
This record was later changed in February of 2020 at Petitioner’s request to state that
she “is still experiencing shoulder pain, but would prefer to focus on her low back pain
today.” Ex. 10 at 1.
Dr. Graff provided additional details with regard to this change in a letter to Esther
Novak, a paralegal at Lommen Abdo, P.A. dated October 12, 2020. Ex. 17. Dr. Graff
indicated Petitioner had emailed him on February 1, 2020 and set forth the reason for the
request. Specifically, Petitioner was seeking coverage for “ongoing needs associated with
the shoulder injury but they’re bringing into question Dr. Tim [Graff]’s note from this date
of service and for me to be covered to the extent I need to be I would need him not to
have any specifiers like ‘less, normal, mild, I’m hoping we can agree upon a blanket,
generalized statement such as ‘experiencing shoulder pain but would like to focus on her
back today’…” Ex. 17 at 2. Dr. Graff further stated:
I do recall the initial visit on 10/26/2018 and discussing her left
arm/shoulder/pectoral pain following her flu shot in this region. She was
wanting to try some acupuncture in that region, since she has done that
before with me for low back pain with some success. I recall it seemed
odd she did not seem to want to discuss her left
arm/shoulder/pectoral symptoms on the subsequent visit
11/9/2018. We therefore focused more on her symptomatic lumbar
3 Respondent noted that any benefits received from a worker’s compensation claim would offset any
compensation awarded in the Vaccine Program. Opp. at 4 n.1. Petitioner requested workers’ compensation
records for any and all dates of injury from 2018 to present and was told that no such files were found. Ex.
23.
4 Petitioner requested an addendum to the November 9, 2018, record on or about January 30, 2020. Ex.
16 at 1. In response to her request, Dr. Graff noted that the addendum would include a time stamp, and
included a draft edit with Dr. Graff’s additional commentary of “Here Is what I will put and maybe your legal
counsel can advise.” Id. at 2.
3

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spine with acupuncture in this region only and chiropractic adjustments
of the cervical, thoracic, and lumbar spine.
Id. (emphasis added).
Petitioner returned to Dr. Graff on November 23, 2018, and reported she was
“mainly having some low back pain today”. Ex. 4 at 61. There is no discussion of shoulder
pain, and no specific care related to her shoulder. Petitioner again saw Dr. Graff on
December 7, 2018, for soreness in her lower back, upper back, and neck. Dr. Graff
performed manual chiropractic manipulation therapy and acupuncture on various joints
bilaterally in Petitioners’ back and trapezius muscles. Id. at 63-64.
Petitioner saw P.A. Sarah Ake on December 28, 2018, for medication
management and lab work. Ex. 6 at 9. P.A. Ake noted that Petitioner has a history of low
back pain that “originally occurred after she had an injury after jumping of[f] a dock with
whiplash several years ago.” Id. The records do not include any reports of shoulder pain,
and an evaluation of Petitioner’s extremities noted “[f]ull range of motion x4 extremities.”
Id. at 10.
On March 13, 2019, Petitioner saw Dr. Leslie Norton for “sore left shoulder after
influenza injection on 10-5-2018….” Ex. 6 at 13. Petitioner reported that “she started
having soreness” that night, and “[o]ver the next 3 days the pain was more bothersome
and she had pain and achiness that spread from the shoulder to the anterior superior part
of the left upper chest.” Petitioner reported that her pain was moderate, “about a 7 out of
10.” She also reported the pain has progressively increased, and her range of motion has
decreased. Id. at 13. A shoulder exam showed reduced range of motion in Petitioner’s
left shoulder when compared to the right, but normal strength. She was diagnosed with
chronic left shoulder pain, bursitis, and stiffness.
Petitioner began physical therapy on March 26, 2019. Ex. 7 at 1-4. Petitioner stated
that the onset of her pain was October 5, 2018. Id. An examination indicated Petitioner
had loss of range of motion, and her pain was described as “2-3/10”. Id. at 5. She attended
a second physical therapy session on May 6, 2019. Ex. 7 at 10-14. She now described
her pain as “mild aching tip of l[eft] [shoulder]”. Id. at 10. Her pain level was characterized
as “1/10”, with ranges of “1-5/10”. Id. Additionally, Petitioner’s general program
compliance was described as poor. Id.
On August 19, 2019, Petitioner saw Dr. Norton for left shoulder pain. Ex. 9 at 2.
Dr. Norton noted that Petitioner went to physical therapy twice and was treated by a
chiropractor, but “[d]id minimal yard w[ork] and she is much worse…now not able to do
4

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the exercise that she learned.” Id. Ibuprofen, theracane, and prednisone were prescribed
thereafter. Id. 2-4.
Petitioner presented to Spine and Sports Chiropractic on February 3, 2020, for
various ailments including left shoulder bursitis from a flu vaccine in October of 2018. Ex.
11 at 5. She next sought care for lower back pain, left shoulder pain, knee pain, and neck
tension on February 10, 2020. Id. at 2. With regard to her left shoulder pain, it was rated
as one-to-two out of ten on average, but ranged from zero-to-six out of ten. Id.
Petitioner returned to Spine and Sports Chiropractic on October 16, 2020,
reporting lower back pain, knee pain, and left shoulder pain. Ex. 22. she described the
shoulder pain as low grade, but a daily occurrence, among other issues including low
back pain and right knee pain. Id. Additional treatments occurred on October 19 and 23,
2020. Ex. 24. No physical examination is documented at that time. Petitioner was next
seen on March 22, 2021 at Spine and Sports Chiropractic, for lower back, knee, and right
shoulder pain. Id. at 3.
III. Affidavit Evidence
Petitioner submitted four affidavits in support of her claim. Ex. 3, 19, 25, 31. In her
first, she asserts that she experienced stiffness and soreness in her left shoulder on
October 5, 2018, the day she received the flu vaccination. Ex. 3 at 1. She also described
an “unusual sensation of what felt like something coursing through the muscles from my
left shoulder to the upper left side of my chest….” Id. at 1-2. Petitioner stated that she
visited a chiropractor for left shoulder pain on October 26, 2018, however the “pain
continued at the same severity the days following this treatment, so I discontinued
chiropractic services for my shoulder.” Id. at 2. Further, Petitioner states that she did not
seek chiropractic care at times in 2019 because “I had previously attempted chiropractic
care, it did not appear to make any difference.” Id. at 7. Additionally, she states that she
did not mention shoulder pain in December 2018 to P.A. Ake because that clinic
appointment was a professional courtesy for a routine medication check to refill
prescriptions. Id. at 6. Petitioner further detailed how her alleged injury has impacted her
personally, professionally, and financially. Id. at 4-6.
Petitioner submitted a supplemental declaration on November 12, 2020, to
address Respondent’s position that she was treating regularly for shoulder pain at the
time of the vaccination. Ex. 19 at 1. In it, Petitioner explained that prior to the vaccination,
she was seen for back, shoulder, and neck pain associated with jumping off a dock in
2011. Id. But, she maintained, the location of the shoulder pain following the vaccine was
in a completely different area. Id. at 2-3. Additionally, Petitioner stated that she has had
5

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issues with her chiropractor’s inaccurate records, pointing to the November 9, 2018,
record specifically. Id. at 4.
Petitioner submitted a second supplemental declaration on February 14, 2022. Ex.
25. She asserts in it that her shoulder has improved due to certain procedures such as
“the Graston treatments” and provided details regarding the pain associated with that
technique. Id. at 2. Petitioner also stated that she still experiences a “dull ache 3-4 times
/ 7 nights” a dull ache “every now and then” while at rest, and pain for several days after
significant exertion. Id. at 2-3. Further, she stated that her right shoulder began to hurt in
December of 2020, and it was “hypothesized this was due to overuse / overcompensating
for my left shoulder pain over the last 60 months.” Id. at 1-2.
Petitioner submitted a third supplemental declaration on February 24, 2022. Ex.
31. Therein, she provides additional support regarding the onset of her injury in the form
of corroborating text messages from an old phone, and text messages from 2020
regarding her shoulder pain. Id. at 1-6. Petitioner further explained events that affected
her ability to seek additional medical treatment, including a need to make an appointment
for her son with an allergist by the end of the year, a need to have stiches removed prior
to the end of a year, selling their house, and coordinating the replacement of a water
heater. Id. at 1-2.
Petitioner’s wife, Nikki Johnson, submitted a declaration in support of this petition.
Ex. 26. Mrs. Johnson described her recollection of Petitioner’s injury course, and how it
impacted her personal, professional, and family life. Id. at 1-6.
Stacie Birkland, Petitioner’s friend, submitted a declaration dated February 23,
2022. Ex. 32. Ms. Birkland describes her recollection of Petitioner’s shoulder pain,
including the onset and severity. Id. at 1-2. She also states that Petitioner “was hesitant
to seek medical attention” because “she was concerned of feeling dismissed.” Id. at 2.
Petitioner’s father, Charles Johnson, submitted a declaration dated February 23,
2022. Ex. 33. Mr. Johnson states that he recalls “the week after the [flu] shot [Petitioner]
was complaining about her shoulder hurting.” Id. at 1. He further describes his recollection
of Petitioner’s shoulder pain, including the onset, severity, and Petitioner’s course of
treatment. Id. at 1-2.
IV. Parties’ Arguments
Petitioner argues that she is entitled to compensation because she meets the six-
month severity requirement (Mot. at 3-8, Reply at 1-2) and the specific requirements for
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a SIRVA as described in the Vaccine Injury Table. Mot. at 8-14, Reply at 2-3.5
Respondent argues that Petitioner has not met the severity requirement of the Vaccine
Act. Opp. at 11-12. Respondent further argues that Petitioner failed to show she suffered
a Table claim because she had pre-existing bilateral shoulder pain, onset of her injury did
not occur within 48 hours of her vaccination, her pain was not limited to her shoulder but
radiated down her arm, and she did not have limited range of motion until five months
after the vaccine. Opp. at 12-13.
V. Fact Findings and Ruling on Entitlement
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,6 a
petitioner must establish that he 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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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;
5 The parties’ briefs also addressed Petitioner’s success at establishing a causation-in-fact claim, but
because I am determining that a Table claim has been demonstrated preponderantly, I do not discuss those
arguments.
6 In summary, a petitioner must establish that she 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 her injury for more than six months, died from her 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. See § 11(c)(1)(A)(B)(D)(E).
7

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(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 must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. 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 &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A. Petitioner Meets the Severity Requirement
The first issue to be resolved is whether Petitioner has demonstrated that she
suffered “residual effects or complications of [the injury alleged] for more than six months
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after the administration of the vaccine,” as required for eligibility under the Vaccine
Program. Section 11(c)(1)(D)(i).
There is no dispute that Petitioner received the flu vaccine on October 5, 2018,
and she therefore must demonstrate by preponderant evidence that her residual
symptoms continued at least through April 5, 2019. See, e.g., Herren v. Sec'y of Health
& Human Servs., No. 13-100V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18,
2014); see also Hinnefeld v. Sec'y of Health & Human Servs., No. 11-328V, 2012 WL
1608839, at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical
history revealed that petitioner's Guillain-Barré syndrome resolved less than two months
after onset).
The record establishes that Petitioner initially sought treatment for her shoulder
injury on October 26, 2018. Ex. 4 at 57-58. However, Respondent argues that Petitioner’s
symptoms resolved shortly thereafter. Opp. at 1-12. And Petitioner’s medical records from
November 9, 2018, do indicate that her shoulder was “back to normal” by the end of
October 2018. Ex. 4 at 59-60. Further, she did not report shoulder pain at three medical
visits in November and December of 2018. Ex. 4 at 61-64, Ex. 6 at 9-11. And while
Petitioner's March 13, 2019, visit with Dr. Norton indicated her shoulder pain began after
the flu vaccine and was progressively increasing, the intermittent pain pattern is
consistent with her preexisting shoulder problems and unrelated to the vaccination. Opp.
at 11-12.
Petitioner's affidavit and witness statement, however, support her contention that
she continued to experience left shoulder pain between November 2018 and March 2019.
See Ex. 3 at 2. Petitioner also addressed why she did not mention her shoulder pain at
the December 28, 2018, appointment with P.A. Ake, stating that the appointment was for
a routine medication check. Id. at 6. Additionally, as Respondent notes, Petitioner later
linked her left shoulder pain to the flu vaccine on March 13, 2019, indicating that she had
continued to experience the effects of her injury since the vaccination. Ex. 6 at 13.
Although a petitioner cannot establish the length or ongoing nature of an injury merely
through self-assertion, the fact that a petitioner did not receive medical treatment for a
solid/continuous six-month period does not necessarily mean that there are no remaining
residual effects of the injury within the period. See, e.g., Herren, 2014 WL 3889070, at *3
(finding that petitioner suffered from residual symptoms that, due to their mild nature, did
not require medical care).
More problematic for Petitioner is the statement in Dr. Graff’s record stating that
Petitioner’s shoulder was sore for a few days following the October 26, 2018 appointment
“but then back to normal.” Petitioner contends that her shoulder injury did not resolve this
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quickly, and Dr. Graff’s notation was merely a mistake. See Ex. 19 at 4 (indicating
Petitioner has had previous issues with inaccuracies in Dr. Graff’s records). Further, she
contends that she continued to experience shoulder pain in November 2018 but wanted
Dr. Graff focus on other issues at that time because the previous chiropractic care was
unsuccessful. Ex. 3 at 2.
While Dr. Graff’s statements and the November 9, 2018 record contradict
Petitioner’s statements in her affidavit, after consideration of the entire record the
evidence preponderantly supports (if barely)7 a finding that severity has been met. While
Petitioner’s efforts to correct the offending record are not wholly persuasive, the fact that
in subsequent contemporaneous records (within the severity period, no less) she related
her injury to the vaccination, and that she did seek treatment for it in March and May
2019, all support severity. While this record overall may suggest Petitioner’s SIRVA was
not consistently a problem, that goes more to damages than whether the Vaccine Act’s
temporal severity requirement is met.
B. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. No Prior Left Shoulder Condition or Injury Would Explain
Petitioner’s Symptoms
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Petitioner’s records show she previously had
bilateral shoulder, neck and back pain stemming from a 2011 injury that resulted in a neck
sprain and muscle spasms. Ex. 12 at 2-3. Between 2011 and 2018, Petitioner was
periodically seen primarily for neck and back pain. See, e.g., Ex. 21 at 4-5 (physical
therapy records from January 12, 2012 to February 23, 2012 for neck and low back pain);
Ex. 20 at 11-12 (chiropractic records for treatment related to cervical spine tension); Ex.
4 at 43-44 (record from June 5, 2017 relating to left-sided neck and mid-back pain).
However, there is one report of left shoulder pain from 2016. See Ex. 4 at 29-30 (record
from September 30, 2016, reporting left shoulder pain that began the day before).
Petitioner explained that the shoulder pain associated with the 2011 injury was in a
completely different area than her alleged SIRVA. Ex. 19 at 2-3. This is corroborated by
7 At worst, this case represents a “close-call,” and in “the Vaccine Program, petitioners are accorded the
benefit of close calls.” Roberts v. Sec'y of Health & Human Servs., No. 09-427V, 2013 WL 5314698, at *10
(Fed. Cl. Aug. 29, 2013).
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the treatment records, which indicate Petitioner was being treated for cervical spine
tension, upper back pain, and shoulder pain prior to her vaccination. Ex. 20 at 11-12, Ex.
4 at 29-30.
Given that the last complaints of left shoulder pain occurred two years prior to the
vaccine, and the 2011 injury does not seem to implicate Petitioner’s shoulder, I find that
Petitioner’s pre-vaccination injury would not explain the symptoms experienced after the
vaccination. Further, she has demonstrated no other condition that would explain her
symptoms. Therefore, Petitioner meets this requirement.
2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of
her Vaccination
The medical records also establish onset of her injury close-in-time to vaccination.
Petitioner first sought treatment approximately three weeks after her October 5, 2018
vaccination. In the subsequent timeframe, she consistently reported to treaters that she
had experienced symptoms since the vaccination. Ex. 4 at 57 (October 26, 2018, record
stating that she had a flu shot and had pain “since then”); Ex. 6 at 13 (record from March
13, 2019 stating that Petitioner was seen for “sore left shoulder after influenza injection
on 10-5-2018” and “pain started that night”); Ex. 7 at 1-4 (physical therapy records from
March 26, 2019 stating that onset of Petitioner’s pain was October 5, 2018). These
statements, while temporally vague, are not inconsistent with a proper Table onset.
Respondent observes, however, that the October 26, 2018 record states Petitioner
had a flu shot “earlier [that] week” and had pain “since” the vaccination. Opp. at 13. While
“since” is a vague term, and the literal date reported for vaccination is erroneous, a single
reference that incorrectly indicates the date Petitioner received the vaccine is not enough
to outweigh the other evidence. Otherwise, such a record does connect the vaccination
to the onset of pain – and later records correctly state the vaccination date. See, e.g., Ex.
4 at 57; Ex. 6 at 13; Ex. 7 at 1-4. Petitioner’s affidavits provide additional corroborating
evidence for onset of her injury. Ex. 3 at 1.
Also, the October record shows that Petitioner reported shoulder pain in a relatively
timely manner (i.e. within a month of vaccination). It is common for SIRVA petitioners to
delay seeking treatment, thinking the injury will resolve on its own, since patients are often
told by medical providers at the time of vaccination to expect some soreness and pain for
a period of time after. And individuals also often misconstrue the nature of their injury,
and may not inform treaters of all specific facts relevant to its onset until later. Here, the
added detail of onset did not “wait” for months before being provided, but began to be
reported in a reasonable time post-vaccination.
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Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s left shoulder pain was more likely than not within 48-
hours of vaccination. The fact that Petitioner did not delay significantly in seeking
treatment, and consistently reported pain associated with the vaccination, weigh in her
favor, even if some onset references are imprecise, or if a single incorrect onset citation
(not otherwise repeated in the record) has been identified.
3. Petitioner’s Pain was Limited to her Left Shoulder
I also find that there is a preponderance of evidence that Petitioner’s pain was
limited to her left shoulder. Respondent claims that Petitioner does not meet this criteria
because on October 26, 2018, she reported pain in her left arm, pectoral area, and that it
felt “like her veins were ‘pulsing’ in her left pectoral area” the day after the vaccination.
Opp. at 13.
Even though the record contains reports of non-shoulder pain complaints from
October 26, 2018, additional records indicate that Petitioner’s pain was limited to her
shoulder. See, e.g., Ex. 6 at 13 (reporting a sore left shoulder); Ex. 7 at 10-14 (describing
pain as mild aching at the tip of her left shoulder). Further, this is not a case where the
bulk of Petitioner's complaints included an area broader than the shoulder region. On the
contrary – there is only a single record that contains complaints of pain outside the
shoulder region. Accordingly, preponderant evidence establishes that Petitioner’s pain
was limited to her left shoulder.
4. There is No Evidence of Another Condition or Abnormality
The last criteria for a Table SIRVA state that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). As discussed above, Petitioner’s prior history includes reports of bilateral
shoulder pain associated with a 2011 injury. Ex. 21 at 4-5; Ex. 20 at 11-12; Ex. 4 at 43-
44. But the records also indicate that Petitioner complained of left shoulder pain only
once, and several years prior, to her vaccination. Ex. 4 at 29-30. Further, Petitioner
explained that the shoulder pain associated with the 2011 injury was in a completely
different area than her alleged SIRVA. Ex. 19 at 2-3.
Because there are no complaints of left shoulder pain for two years prior to
Petitioner’s vaccination, it is more likely than not that her prior injury would not explain
Petitioner’s current symptoms. Additionally, Respondent does not contest that Petitioner
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meets this criterion for a Table SIRVA. Therefore, I find that Petitioner satisfies this
requirement.
C. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). The overall record
contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly on October
5, 2018, in the United States. Ex. 1 at 1; see Section 11(c)(1)(A) (requiring receipt of a
covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the United
States or its territories). There is no evidence that Petitioner has collected a civil award
for her injury. Ex. 3 at 9; Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that Petitioner has met the table requirements for a
SIRVA. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this requirement). I also found that
Petitioner meets the severity requirement, and has suffered the residual effects of her
injury for more than six months. See Section 11(c)(1)(D)(i) (statutory six-month
requirement).
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
VI. Damages
The parties have also briefed damages in this case. Petitioner requests an award
of $100,000.00 for actual pain and suffering and $1,070.76 for unreimbursed out-of-
pocket expenses. Mot. at 22; Reply at 7. Respondent argues that the record only supports
an award of $50,000.00 for past pain and suffering, and $804.51 for out-of-pocket
expenses. Opp. at 22.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
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(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).
In sum, 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). 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). 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.8
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. In determining appropriate compensation for pain
and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
Ms. Johnson requests an award of $100,000.00 for actual pain and suffering. Mot.
at 22; Reply at 7. She asserts that the severity of her injury is comparable to Cooper. 9 In
particular, Petitioner emphasizes that she suffered from shoulder pain for over three
years, sought treatment soon after her vaccination, and treated through physical therapy,
chiropractor treatments, and various medications. Mot. at 18-22.
Respondent, by contrast, submits that an award of $50,000.00 is appropriate for
pain and suffering (assuming entitlement is found). Opp. at 18-21. Respondent argues
that Petitioner suffered a comparatively minor injury and received only conservative
treatment including “a handful of acupuncture visits, two PT visits, ibuprofen, and one
round of prednisone.” Opp. at 18. Further, no medical records reports of left shoulder pain
8 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & 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)).
9Cooper v. Sec’y of Health & Hum. Serv., No. 16-138V, 2018 WL 6288181 at *12 (Fed. Cl. Spec. Mstr. Nov.
7, 2018) (awarding $110,000.00 in pain and suffering).
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past October 2020, two years after her vaccination. Id. Respondent cites to two cases in
support of his argument: Mejias v. Sec’y of Health & Hum. Serv., No. 19-1944V, 2021 WL
5895622 (Fed. Cl. Spec. Mstr. Nov. 10, 2021) (awarding $45,000.00 for past pain and
suffering); Ramos v. Sec’y of Health & Hum. Serv., No. 18-1005V, 2021 WL 688576 (Fed.
Cl. Spec. Mstr. Jan. 4, 2021) (awarding $40,000.00 for actual pain and suffering).
Based on the medical records, Petitioner suffered a mild SIRVA and some
lingering pain for approximately two years, with multiple multi-month gaps in treatment.
Petitioner initially reported arm pain on October 26, 2018, approximately one month after
her vaccination. Ex. 4 at 57-58. Petitioner next reported shoulder pain almost five months
later on March 13, 2019. Ex. 6 at 13.
Petitioner attended two physical therapy sessions, one on March 26, 2019 and
another on May 6, 2019. Ex. 7 at 1-4, 10-14. During that time, her pain and symptoms
were reportedly mild, and ranged from one-to-five out of ten. Ex. 7 at 1-4, 10-14. Petitioner
next reported shoulder pain approximately five months later on August 19, 2019. On
February 10, 2020, Petitioner again sought care for shoulder pain, and reported her
average pain levels were one-to-two out of ten. Ex. 11 at 2. Eight months later, in October
of 2020, Petitioner reported daily low-grade shoulder pain. Ex. 22.
These factors indicate that Petitioner’s SIRVA was fairly mild for approximately two
years. Further, Petitioner’s treatment was conservative and sporadic, with two physical
therapy sessions in 2019, and various visits to medical practitioners. However, Petitioner
did not receive any steroid injections, did not undergo surgery, and had very limited
diagnostic testing.
The overall severity of the injury at issue herein is not nearly high enough to
warrant the $100,000.00 requested by Petitioner in her motion. I note that the SIRVA
cases cited by Petitioner involved more significant treatment over longer periods of time.
For example, the Cooper petitioner’s treatment consisted of thirty-five physical therapy
session over two years, and moderate pain reported for that time. Cooper, 2018 WL
6288181 at *12. In contrast, here Petitioner attended only two physical therapy sessions
and reported significantly lower pain levels throughout her treatment period.
I agree with Respondent that this case is more comparable to cases that awarded
below-median amounts for a SIRVA. Opp. at 19-21. In particular, this case is most
analogous to Allner v. Sec’y of Health & Hum. Serv., No. 19-1048, 2022 WL 6962656
(Fed. Cl. Spec. Mstr. Sept. 9, 2022) (awarding $60,000.00 for actual pain and suffering).
Both Petitioner and the injured in Allner experienced a mild SIRVA, underwent treatment
over several years, and exhibited a good recovery. Id. at *5-6. However, Allner included
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additional treatment that Petitioner did not undergo, including five steroid injections and
two MRI scans.
I also note that, like in Allner, Petitioner required minimal treatment or medical
intervention for significant periods of time. Notably, there are multiple, lengthy gaps in
Petitioner's treatment, suggesting that her pain was not so severe as to require frequent
medical attention. Specifically, Petitioner appears to have received no formal treatment
for her shoulder injury during the following time periods: 1) approximately four months
between October 26, 2018 (Ex. 4 at 57-58) and March 19, 2019 (Ex. 6 at 13); 2)
approximately four months between her second physical therapy session on May 6, 2019
(Ex. 7 at 10-14) and when she saw Dr. Norton for left shoulder pain on August 19, 2019
(Ex. 9 at 2); 3) approximately four months between August 19, 2019 (Ex. 9 at 2) and when
she next sought care on February 10, 2020 (Ex. 11 at 2); and 4) approximately nine
months between February 10, 2020 and when she sought care on October 16, 2020. Ex.
22. The fact that Petitioner could cope with her injury during these periods counsels in
favor of a lower pain and suffering award.
Taking all of the above into account, I find that $50,000.00 for pain and suffering
is appropriate in this case.
C. Unreimbursed Out-Of-Pocket Expenses
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 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). Petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer, 1996 WL 147722, at *22-23.
Petitioner seeks $1,070.76 for medical expenses related to her shoulder. Mot. at
22. Respondent agrees to $804.51 of the expenses, but contests expenses that he
argues are unrelated to Petitioner’s SIRVA. Opp. at 21-22.
The expenses Petitioner seeks compensation for include chiropractic visits in
February of 202010 and March of 2021, and amazon purchases from August and October
of 2020, and March of 2021. Opp. at 21, Ex. 27 at 1, 7-9. The February 8, 2020
10 Petitioner’s itemized damages lists a February 8, 2020 visit to Spine & Sports Chiropractic. Ex. 27 at 1.
However, the date appears to be an error as the medical records indicate the appointment occurred on
February 3, 2020.
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chiropractic visit appears at least related to care for Petitioner’s SIRVA, and thus is
compensable under the Vaccine Act. Ex. 7 at 1. However, other treatments and
purchases are too attenuated to be properly associated with her SIRVA. For example, the
chiropractic care on March 22, 2021 pertained to Petitioner’s right shoulder, not her left.
Ex. 24. Further, the purchases including an ice pack on August 28, 2020, a massage stick
on October 26, 2020, and a body pillow on March 15, 2021 do not temporally relate to
any treatment records or care for her SIRVA. Moreover, it is unclear whether those
purchases were for treating Petitioner’s SIRVA, or other of her chronic injuries including
knee and back pain.
Therefore, based on the above, I award $877.46 for past unreimbursed expenses.
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that Petitioner has satisfied the Table requirements for a SIRVA and is entitled to
compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $50,000.00 represents a fair and appropriate amount of
compensation for Ms. Johnson’s actual pain and suffering. I also award $877.46 for
past unreimbursed medical expenses.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
17