VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01883
Package ID: USCOURTS-cofc-1_19-vv-01883
Petitioner: Frances A. Vaccaro
Filed: 2019-12-12
Decided: 2022-03-04
Vaccine: influenza
Vaccination date: 2018-10-02
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 110791

AI-assisted case summary:
Frances A. Vaccaro filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on October 2, 2018. The case was assigned to the Special Processing Unit of the Office of Special Masters. Petitioner filed a motion for a ruling on the record, and the respondent filed a response. The court issued fact findings, determining that the flu vaccine was administered in Petitioner’s left deltoid and that the onset of Petitioner’s pain occurred within 48 hours of vaccination. The respondent filed a Rule 4(c) report accepting the ruling and conceding that Petitioner was entitled to compensation for SIRVA. The court issued a ruling on entitlement in favor of Petitioner, and the parties commenced damages discussions. The parties were unable to resolve damages themselves, so their disputed elements were briefed. The court awarded Petitioner a total of $110,791.11, representing $110,000.00 for actual pain and suffering, and $791.11 for past unreimbursable expenses. This amount was awarded as a lump sum payment.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01883-0
Date issued/filed: 2021-08-18
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/19/2021) regarding 27 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-01883-UNJ Document 28 Filed 08/18/21 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1883V
UNPUBLISHED
FRANCES A. VACCARO, Chief Special Master Corcoran
Petitioner, Filed: July 19, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset and Site of
HUMAN SERVICES, Vaccination; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Wes Baker Allison, Kahn Law Firm, LLP, Charleston, SC, for Petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On December 12, 2019, Frances A. Vaccaro 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”) as a result of an influenza (“flu”) vaccine received on
October 2, 2018. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters (the “SPU”).
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-01883-UNJ Document 28 Filed 08/18/21 Page 2 of 9
For the reasons discussed below, I find that a preponderance of the evidence
supports the determination that Petitioner’s flu vaccine was administered on October 2,
2018 in Petitioner’s left deltoid, and that her onset of pain occurred within the 48-hour
post-vaccination timeframe set by the Table.
I. Relevant Procedural History
Following the initial status conference on March 2, 2020, Respondent was directed
to file a status report providing counsel’s informal reaction to the claim (ECF No. 11).
Respondent did so on April 27, 2020 (ECF No. 12), noting that the site of Petitioner’s
vaccination was not recorded in the records filed. Respondent added that “any uncertainty
about the site of administration is compounded by the fact that [P]etitioner did not seek
medical treatment for three months after the vaccination.” Respondent’s April 27, 2020
Status Report at 1. Thereafter, on June 4, 2020, a telephonic status conference was held
to discuss how the parties wished to address such fact disputes. Scheduling Order,
issued June 4, 2020 (ECF No. 13).
Subsequently, Petitioner filed additional evidence, Exhibits 14-18 (ECF Nos. 14-
15). On August 13, 2020, another telephonic status conference was held. Following the
conference, I issued a scheduling order stating my preliminary view that a preponderance
of the evidence appeared to establish that the flu vaccine at issue had likely been
administered in Petitioner’s left deltoid. Scheduling Order, issued Aug. 14, 2020 (ECF No.
18). I instructed Respondent to take this preliminary view into account, and indicated that
if Respondent had not provided his litigation position or indicated the potential for
settlement by the one year mark (measured from the date this case left OSM’s pre-
assignment review process), the case faced transfer from SPU, and that I also might
decide onset on the written record. Id. at *3-4. Petitioner was directed to serve a demand.
Id. at *4.
On September 9, 2020, Petitioner reported that she had served a demand the day
before (ECF No. 19). On November 2, 2020, however, Respondent filed a status report
indicating that he had not yet determined his position (ECF No. 20).
On December 11, 2020, Petitioner filed a motion for a ruling on the written record
(ECF No. 23). On March 26, 2021, Respondent filed a response asserting that Petitioner’s
motion should be denied and the Petition should be dismissed. Respondent’s Response,
filed Mar. 26, 2021 (ECF No. 26). Respondent took the position that the medical records
did not establish the site of vaccine administration, and there were no contemporaneous
medical records documenting that Petitioner’s symptoms began within 48 hours after
vaccination. Id. at *5.
2

Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 3 of 9
II. Issue
At issue is whether (a) Petitioner received the vaccination alleged as causal in her
injured left arm, and (b) Petitioner’s first symptom or manifestation of onset (specifically
pain) occurred within 48 hours after vaccine administration 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(a) XIV.B. (2017) (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii)
(required onset for pain listed in the QAI).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & 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, 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 & Hum. 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
3

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Health & Hum. 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 & 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 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.” § 13(b)(2). “Such a finding may be
made only upon demonstration by a preponderance of the evidence that the onset [of the
injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.”
Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Hum. 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 the below findings after a complete review of the record, including all
medical records, affidavits, Respondent’s Rule 4 Report, and additional evidence filed.
Specifically, I base the findings on the following evidence:
• On October 2, 2018, Petitioner was seen by her primary care provider, Dr. Mary Little
of Harth Place Family Medicine, for a lump on her foot. Ex. 2 at 4. The record indicates
that a flu vaccine was also administered during this visit. Id.
• Petitioner’s insurer paid Dr. Little $95.02 for the October 2, 2018 visit, including
$17.34 for a flu vaccine and $19.07 for administration of a flu vaccine (thus
corroborating the fact of the vaccine’s administration). Ex. 18 at 1-2.
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Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 5 of 9
• On January 3, 2019, Petitioner returned to Dr. Little reporting a cough and left arm
pain from her flu shot in October. Ex. 6 at 302-03. The record indicates that Petitioner
“[h]ad flu shot in left deltoid ‘still sore.’ ” Id.
• On January 18, 2019, Petitioner was seen by orthopedist Dr. James Spearman for
left shoulder pain. Ex. 7 at 18-20. The record lists an onset date of October 18, 2018,
and indicates that “on 10/18/2018 she got a flu shot and since that time she has had
persistent pain and worsening ROM [range of motion].” Id. at 19. While the record
lists an incorrect vaccination date, it lists the same date as the date of onset of
symptoms and relates onset to the flu shot, suggesting that onset occurred on the
date of vaccination.
• On January 29, 2019, Petitioner returned to Dr. Spearman. Ex. 7 at 15-18. The record
of this visit incorrectly indicates that her flu vaccine was administered on November
9, 2018. Id. at 16. However, it also lists as the date of onset of her left shoulder pain
“10/18/18 after flu vaccine.” Id. at 17.
• On February 26, 2019, Petitioner was seen for a physical therapy initial evaluation.
Ex. 8 at 82. The date of injury was recorded as February 12, 2019, the date Petitioner
underwent shoulder surgery. Id. The “Nature of Injury” section states that Petitioner
“was given a flu shot in October with the most painful shot, couple weeks was sore
and in November was unable to do movements with L arm.” Id.
• The record also includes a letter dated November 21, 2019 from Dr. Spearman
addressed “To Whom It May Concern.” Ex. 10. The letter indicates that Petitioner
presented to Dr. Spearman’s office on January 18, 2019 with left shoulder pain that
began after an October 2018 flu shot. Id. at 1. Dr. Spearman stated that based on
Petitioner’s history and presentation, “I suspected adhesive capsulitis as a result of
the administration of the flu vaccine. In my opinion, the injection was likely
administered too high on the shoulder, causing an inflammatory response that led to
the development of scar tissue inside the joint.” Id. He concluded that in his opinion
“all of the treatment that Mrs. Vaccaro received for her left shoulder including surgery
on Feb. 12, 2019, was and is directly related to the administration of the flu shot in
October 2018.” Id. at 2.
• Petitioner filed two affidavits in support of her petition. Petitioner averred that on
October 2, 2018 she was given a flu shot by a member of Dr. Little’s staff “who
inserted the needle near the joint at the top of my left shoulder.” Ex. 3 at ¶ 3. She
explained that she was seated on an exam bench that was against a wall, with her
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Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 6 of 9
right shoulder facing the wall and her left shoulder facing the aide who administered
the vaccine. Ex. 15 at ¶ 5. She did not use her left arm while driving home from the
clinic, and did not try to lift her granddaughter that day due to pain. Id. at ¶ 9. Over
time, her shoulder gradually worsened and she experienced difficulty using her left
arm to move or carry things. Id. at ¶¶ 12-13. She took ibuprofen for the pain and
assumed it would go away. Id. at ¶ 14. Her shoulder gradually worsened, and by
Christmas she was unable to reach for items above her head or fasten a bra strap,
and needed help to cook. Id. at ¶ 14. At her family’s insistence, she finally called Dr.
Little on December 27, 2018 and was given a January 3, 2019 appointment. Id. at
¶ 15.
• Petitioner submitted an affidavit from her husband, Anthony Vaccaro. Ex. 4. He
averred that when his wife returned home on October 2, 2018 after her flu shot, she
said that the shot had hurt her shoulder and arm. Id. at ¶ 3. He explained that her
shoulder was obviously sore and stiff, and that it gradually got worse through
Thanksgiving. Id. at ¶ 3. He stated that his wife is healthy and generally reluctant to
see a doctor, so it did not surprise him that she waited to see if her shoulder would
improve with time. Id. at ¶ 4. However, by Christmas, she was in extreme discomfort
and having difficulty carrying heavy objects and reaching overhead and behind her.
Id. at ¶ 5. At that point, she finally called Dr. Little’s office for an appointment. Id. at
¶ 5.
• Petitioner submitted an affidavit from her daughter, Nicole Mary Jarvis. Ex. 5. She
averred that she lives near her parents and sees her mother three to four times a
week. Id. at ¶ 3. She stated that her mother’s left shoulder and arm pain and loss of
mobility started immediately after vaccination. Id. at ¶ 4. She noticed her mother not
being able to put on a bra or jacket or fix her hair. Id. at ¶ 4. The pain and mobility
issues got worse around the holidays. Id. at ¶ 6.
• Petitioner submitted an affidavit from her daughter in law, Carissa Vaccaro. Ex. 16.
She averred that she lives four houses away from Petitioner and sees her every day.
Id. at ¶¶ 5-6. She saw Petitioner the day she received the flu shot and “could tell her
left arm was bothering her by the way that she was avoiding using it.” Id. at ¶ 7. She
noticed increasing stiffness over the next several weeks, and by Thanksgiving
Petitioner was draping her jacket over her left shoulder rather than putting her arm in
the sleeve. Id. at ¶¶ 9-10. She stated that she kept telling Petitioner to call her doctor
about her shoulder, but Petitioner repeatedly said that she did not want to seek
treatment during the holidays. Id. at ¶¶ 12-14.
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Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 7 of 9
• Petitioner submitted an affidavit from her son, Anthony Vaccaro, who also lives four
houses away and sees Petitioner daily. Ex. 17 at ¶¶ 4-5. On the day Petitioner
received the flu shot, she came to his house and said that her left arm and shoulder
hurt from the shot and felt different than usual. Id. at ¶ 6. Over the next two months,
he noticed her using her right arm to do things she would normally do with her left
arm. Id. at ¶ 9. When the weather turned cold, it became difficult for her to put on a
jacket and she would arrive at his house with a jacket draped around her shoulders,
or with only her right arm in a sleeve. Id. at ¶ 11. He stated that she is stubborn and
does not like to go to the doctor, but eventually agreed to go after the holidays. Id. at
¶¶ 15-16. By Christmas, he stated that her left arm was “literally just by her side. She
wasn’t using it for anything.” Id. at ¶ 17.
I find that the above records, when viewed in their totality, preponderantly establish
that Petitioner received a flu vaccine on October 2, 2018. Ex. 2 at 4; Ex. 18 at 1-2. I
acknowledge that the record also contains records suggesting alternative dates of
administration, e.g., October 18, 2018 (Ex. 7 at 19) or November 9, 2018 (Ex. 7 at 16).
However, I find that the record of the October 2, 2018 visit where the vaccine was
administered is the best evidence. Ex. 2 at 4. In addition, the evidence demonstrating that
Petitioner’s insurance paid for a flu vaccine and the administration of the vaccine on that
date is strong supporting evidence. Ex. 18 at 1-2.
With respect to the site of administration, the record of the visit where the vaccine
was administered is silent on this issue. Ex. 2 at 4. Petitioner obtained her personal
immunization record from the state of South Carolina, which has some records for other
years but none for 2018. Ex. 14. In addition, the office where the vaccine was
administered closed before the petition was filed, and Petitioner was unable to obtain
other records concerning the vaccination. Ex. 15 at ¶ 18.
Although there is not a direct contemporaneous medical record documenting the
site of vaccine administration, there is evidence shedding light on the matter, and it
preponderantly supports a finding that the vaccine was administered in Petitioner’s left
deltoid. For example, at Petitioner’s first appointment for shoulder pain -- a January 3,
2019 appointment with Dr. Little, whose office administered the vaccine -- the record
indicates that Petitioner had “L[eft] arm pain from flu shot in Oct.” and “Had flu shot in left
deltoid . . . still sore.” Ex. 6 at 302 (emphasis added). This is compelling evidence
supporting a finding that the vaccine was administered in Petitioner’s left deltoid.
Then, at subsequent appointments Petitioner consistently informed treaters of left
shoulder pain related to her October 2018 flu vaccine. On January 18, 2019, she was
seen by orthopedist Dr. Spearman for left shoulder pain and reduced range of motion
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Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 8 of 9
“after flu shot in the fall.” Ex. 7 at 19. While this record included an incorrect vaccination
date, October 18, 2018, it indicated that her left shoulder pain was related to her flu shot.
Id. A February 26, 2019 physical therapy evaluation also related her left shoulder pain to
an October 2018 flu shot. Ex. 8 at 82.
Finally, Petitioner’s treating physician, orthopedist Dr. Spearman, opined that
Petitioner’s left shoulder pain and stiffness, and all treatment including surgery on
February 12, 2019 were “directly related to the administration of the flu shot in October
2018.” Ex. 10 at 1-2.
I find that the most compelling evidence of the site of administration is the January
3, 2019 record of Petitioner’s appointment, in the office where the vaccine was
administered, documenting that Petitioner’s flu shot was administered in her left deltoid.
Ex. 6 at 302. This record, supported by additional medical records, affidavit evidence, and
the complete absence of any record evidence suggesting that the vaccine was
administered in Petitioner’s right arm, leads me to find that the preponderance of the
evidence supports a finding that Petitioner’s left arm was the site of vaccination.
Respondent also disputes whether the onset of Petitioner’s symptoms began
within 48 hours of vaccine administration. I find that a preponderance of the evidence
indicates that her pain began within that timeframe.
When Petitioner’s first reported shoulder pain, she related it to her October 2018
flu shot. Ex. 6 at 302. When she was first seen by her orthopedist, she reported that she
had experienced persistent pain and worsening range of motion since her flu shot. Ex. 7
at 19 (emphasis added). I acknowledge that the date of vaccination was inaccurately
recorded as October 18th in this record. Id. However, the record also lists that same date
as the date of onset. Id. Thus, the information provided to Petitioner’s treating orthopedist
was that onset occurred on the same day as vaccination. Information provided to medical
providers when seeking treatment is considered trustworthy. Cucuras, 993 F.2d at 1528.
Respondent emphasizes that Petitioner did not seek treatment for more than three
months after vaccination. I acknowledge this, but note that this length of treatment delay
is not uncommon in SIRVA cases, and a three-month delay alone is not concerning,
especially absent evidence of intervening opportunities to inform relevant treaters of the
problem. See, e.g., Winkle v. Sec. of Health & Hum. Servs., No. 20-0845V, 2021 WL
2808993 (Fed. Cl. Spec. Mstr. June 3, 2021) (finding onset occurred within 48 hours in
case where first appointment for shoulder pain was nearly five months after vaccination).
I find that Petitioner’s medical records support a finding of immediate onset, and she has
8

Case 1:19-vv-01883-UNJ Document 28 Filed 08/18/21 Page 9 of 9
provided ample affidavit evidence explaining the reasons for her treatment delay, which I
find reasonable.
Accordingly, there is preponderant evidence to establish that (a) the vaccine
alleged as causal in this case was administered to Petitioner in her left deltoid on October
2, 2018, and (b) the onset of Petitioner’s pain occurred within 48 hours of vaccination.
Specifically, I find the onset of petitioner’s pain immediately upon vaccination. Petitioner’s
motion is granted to the extent consistent with these findings.
V. Scheduling Order
• Respondent shall file, by no later than Wednesday, August 25, 2021, his
Rule 4(c) Report or a status report indicating how he intends to proceed.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01883-1
Date issued/filed: 2021-09-28
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/24/2021) regarding 30 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01883-UNJ Document 33 Filed 09/28/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1883V
UNPUBLISHED
FRANCES A. VACCARO, Chief Special Master Corcoran
Petitioner, Filed: August 24, 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)
Wes Baker Allison, Kahn Law Firm, LLP, Charleston, SC, for Petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On December 12, 2019, Frances A. Vaccaro 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”) as a result of an influenza (“flu”) vaccine administered
on October 2, 2018. Petition at ¶¶ 2-17. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On December 11, 2020, Petitioner filed a motion for a ruling on the record (ECF
No. 23). Respondent filed a response in opposition on March 26, 2021 (ECF No. 26).
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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:19-vv-01883-UNJ Document 33 Filed 09/28/21 Page 2 of 2
On July 19, 2021, I granted Petitioner’s motion in part and made factual findings.
Findings of Fact, issued July 19, 2021 (ECF No. 27). I found that a preponderance of the
evidence established that the flu vaccine was administered in Petitioner’s left deltoid and
that the onset of Petitioner’s pain occurred within 48 hours of vaccination. Id. at *7-9.
On August 23, 2021, Respondent filed his Rule 4(c) report. Rule 4(c) Report, filed
Aug. 23, 2021 (ECF No. 29). In it, Respondent reserves the right to appeal the July 19,
2021 fact findings, but accepts the ruling as the law of the case for purposes of further
proceedings before me. Id. at 5-6. Respondent states:
Based on the Chief Special Master’s fact ruling and medical record
evidence submitted in this case, DICP will not continue to contest that
petitioner suffered SIRVA as defined by the Vaccine Injury Table.
Specifically, petitioner had no recent history of pain, inflammation, or
dysfunction of her left shoulder; the onset of pain occurred within 48 hours
after receipt of an intramuscular vaccination; the pain was limited to the
shoulder in which the vaccine was administered; and no other condition or
abnormality, such as brachial neuritis, has been identified to explain
petitioner’s left shoulder pain.
Rule 4(c) Report at *6 (citations omitted).
Respondent further agrees that Petitioner suffered the residual effects of her
condition for more than six months and “based on the record as it now stands and subject
to his right to appeal the Findings of Fact, respondent does not dispute that petitioner has
satisfied all legal prerequisites for compensation under the Act.” Rule 4(c) Report at *6.
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
2

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DOCUMENT 3: USCOURTS-cofc-1_19-vv-01883-2
Date issued/filed: 2022-03-04
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 02/02/2022) regarding 44 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01883-UNJ Document 48 Filed 03/04/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1883V
UNPUBLISHED
FRANCES A. VACCARO, Chief Special Master Corcoran
Petitioner, Filed: February 2, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Unreimbursable
Expenses; Influenza (Flu) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Wes Baker Allison, Kahn Law Firm, LLP, Charleston, SC, for Petitioner.
Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 12, 2019, Frances A. Vaccaro 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 left shoulder injuries related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered
on October 2, 2018. Petition at 1. The case was assigned to the Special Processing Unit
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).

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For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $110,791.11, representing $110,000.00 for actual pain and
suffering, and $791.11 for past unreimbursable expenses.
I. Relevant Procedural History
On December 12, 2019, Petitioner filed Exhibits 1-10, containing medical records
and affidavits, along with the petition (ECF No. 1). On December 18, 2019, Petitioner filed
Exhibits 11-13 and a Statement of Completion (ECF Nos. 6-7). The initial status
conference was held on March 2, 2020 (ECF No. 11).
On April 27, 2020, Respondent filed a status report indicating that Respondent’s
counsel3 had reviewed the records and stating that the site of Petitioner’s vaccination was
not recorded on the vaccine administration record, and that her delay in seeking treatment
compounded any uncertainty about the site of vaccine administration (ECF No. 12).
Following a telephonic status conference, Petitioner was directed to file additional
evidence (ECF No. 13).
On June 22, 2020 and July 6, 2020, Petitioner filed Exhibits 14-18 containing
additional evidence and a Statement of Completion (ECF Nos. 14-16). On August 13,
2020, following another telephonic status conference, I provided my preliminary view that,
based on a preponderance of the evidence, it appeared likely that the October 2, 2018
flu vaccine was administered in Petitioner’s left deltoid (ECF No.18). I directed Petitioner
to serve a demand on Respondent, and directed Respondent to file a status report by
November 2, 2020 indicating how he intended to proceed in this case. Id.
On September 9, 2020, Petitioner filed a status report stating that she had served
a demand on Respondent on September 8 (ECF No. 19). On November 2, 2020,
Respondent filed a status report stating that he had not yet determined his position in this
case (ECF No. 20).
On December 11, 2020, Petitioner filed a Motion for Ruling on the Record (ECF
No. 23). Respondent filed a response on March 26, 2021 (ECF No. 26).
On July 19, 2021 I issued fact findings, determining based on a preponderance of
the evidence it was more likely than not that Petitioner’s October 2, 2018 flu vaccine was
administered in Petitioner’s left deltoid and the onset of her pain occurred within 48 hours
(ECF No. 27). I directed Respondent to file either his Rule 4(c) Report or a status report
indicating how he intended to proceed by August 25, 2021. Id.
3 This review was done by prior counsel for Respondent.
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On August 23, 2021, Respondent filed his Rule 4(c) Report conceding that
Petitioner was entitled to compensation (ECF No. 29). I issued a ruling on entitlement in
favor of Petitioner on August 24, 2021, and the parties commenced damages discussions
(ECF No. 30). But the parties were unable to resolve damages themselves, so their
disputed elements were briefed. Petitioner filed his damages brief (“Br.”) on October 27,
2021 (ECF No. 37). Respondent responded (“Opp.”) on November 24, 2021 (ECF No.
41). On December 17, 2021, the parties filed a joint status report confirming that they
were amenable to an expedited hearing on motions day, and were available for this
purpose on January 28, 2022 (ECF No. 43).
The Motions Day hearing occurred as scheduled, and this written decision
memorializes my oral rulings issued at the conclusion of the hearing.4
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
4 That ruling is set forth fully in the transcript from the hearing, which has not yet been filed in the case’s
docket. The transcript from the hearing is, however, fully incorporated into this Decision.
3

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Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, a special master may rely on his or her own experience
adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961
(Fed. Cir. 1993) (noting that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
claims). Importantly, however, it must also be stressed that pain and suffering is not
determined based on a continuum. See Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 579 (2013).
III. Appropriate Compensation in this SIRVA Case
A. Pain and Suffering
There is no dispute about Petitioner’s awareness of her injury, leaving only severity
and duration to be considered. In determining an appropriate award, I have reviewed the
complete record in this case, as well as prior awards. My determination is based on the
specific circumstances of this case.
1. Relevant Factual History
On October 2, 2018, Ms. Vaccaro received a flu shot in her left deltoid. Ex. 2 at 4;
Ex. 18 at 1; Findings of Fact, issued July 19, 2021 (ECF No. 27). She has averred that
the injection hurt as it was administered, and her arm and shoulder were sore afterward.
Ex. 3 at ¶¶ 4-5. She assumed it was not serious, however, and would go away with time.
Id. But rather than improving, the pain worsened by Thanksgiving. Id. at ¶ 6. Petitioner
remained hopeful that it would improve and, due to the holiday season, did not pursue
treatment at that time. Id. She called her primary care physician on December 27, 2018
due to her shoulder pain and a bad cold, and was given a January 3, 2019 appointment.
Id. at ¶¶ 6-7.
On January 3, 2019, Petitioner was seen by her primary care physician, Dr. Mary
Little. Ex. 6 at 302. Petitioner reported that she was experiencing pain in her left arm from
the flu shot she received in October. Id. She reported that after the flu shot, her left arm
was initially warm and puffy, but never bruised. Id. The record indicates that she was
4

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advised to follow up with a phone call in one month. Id.
On January 18, 2019, Petitioner reported to orthopedist Dr. James Spearman
complaining of left shoulder pain. Ex. 7 at 18-19. She reported that the pain began in
October 2018 after her flu shot. Id. at 19. On examination of her left shoulder, she was
found to have pain with internal and external rotation and decreased abduction. Id. Dr.
Spearman assessed her with adhesive capsulitis and pain of the left shoulder. Id. He
administered a subacromial steroid injection and recommended that Petitioner do home
exercises and continue using ice and non-steroidal anti-inflammatory drugs as needed.
Id. at 19-20.
Petitioner returned to the orthopedist two more times over the next few weeks,
continuing to report pain ranging from 6-8 on a scale of 1-10. Ex. 7 at 12-17. She reported
that she had seen no improvement from the steroid injection and was in constant pain.
Id. at 17. Surgery was recommended, and Petitioner agreed to surgical intervention. Id.
On February 12, 2019, Dr. Spearman performed arthroscopic surgery on
Petitioner’s left shoulder. Ex. 7 at 42-43. Dr. Spearman reported that during surgery, he
discovered extensive adhesions and scar tissue, confirming the diagnosis of adhesive
capsulitis, tendonitis, and a torn labrum. Ex. 10 at 1.
On February 26, 2019, Petitioner underwent a physical therapy (“PT”) evaluation
of her left shoulder. Ex. 8 at 99-100. She presented with decreased range of motion
(“ROM”), strength, flexibility, and mobility, as well as increased pain and edema. Id. Her
deficits limited her ability to perform activities of daily living such as dressing, reaching
overhead, sleeping, and grooming. Id. She reported that at rest her pain was 5-6 and
during activity 8-9 out of 10. Id. On examination, her left shoulder passive ROM was 41
degrees in flexion and 35 degrees in abduction.5 Id. Her active ROM was 35 degrees in
flexion. Id.
Petitioner continued PT until May 21, 2019, attending 28 sessions. See generally
Ex. 8. In March and April, her pain levels were 3-4 at rest and 5-6 during activity. Id.
During this time she had significant gains in ROM, and on April 23, 2019 her active ROM
was 123 degrees in flexion and 104 degrees in abduction. Id. at 90.
Petitioner was seen in her orthopedist’s office five additional times between
February 25 and May 20, 2019. Ex. 7 at 1-12. From February to April 2019, she reported
pain levels ranging from 4-7 on a scale of 0-10. Id. at 4-12. At her final orthopedist
5 Normal shoulder flexion for adults ranges from 165 to 180 and normal abduction for adults varies from
about 170-180 degrees. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE
TO GONIOMETRY 72, 80 (F. A. Davis Co., 5th ed. 2016).
5

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appointment on May 20, 2019, she reported that she was “using her left arm like she
would normally and is having no issues. Very little to no pain.” Id. at 2.
On May 21, 2019, Petitioner was discharged from PT. Ex. 8 at 85. The record
noted that she had made objective improvements with ROM, joint mobility, strength, and
edema. Id. She continued to present with impairments limiting her ability to dress herself
and lift overhead. Id. She had demonstrated independence with her home exercise
program and met most goals. Id. She reported pain levels of 0-1 on a scale of 0-10. Id.
Her left shoulder continued to exhibit decreased active ROM compared to her right
shoulder. Id. Her left shoulder active ROM was 128 degrees in flexion and 133 degrees
in abduction. Id. The therapist observed that she had met the functional parts of her goals
but not the objective portions, meaning that she had regained necessary function but her
ROM measurements had not returned to normal. Id.
Petitioner has filed updated affidavits suggesting that she still suffers residual
effects of her injury. Ex. 19 and 20 (supplemental affidavits of Petitioner and Anthony J.
Vaccaro, filed Sept. 24, 2021). However, she has not filed additional medical records
showing further treatment for her injury, and states that she has not sought formal
treatment for her injury since her discharge from PT. Br. at 12.
2. Parties’ Arguments
Ms. Vaccaro requests a pain and suffering award of $145,000. Br. at 1. In support,
she cites a number of prior SIRVA decisions, including Wilson, Collado, and Leslie, in
which the pain and suffering awards were $130,000, $120,000, and $125,000,
respectively.6
Petitioner asserts that she has experienced the effects of her injury for over three
years. Br. at 7. The pain was very intense for four and a half months, until her surgery. Id.
After surgery, she asserts, she could barely use her left arm, and underwent PT from
February 26 to May 21, 2019. Br. at 8. At discharge from PT, her condition had improved
but not returned to normal. Id. To date, her injury limits her ability to reach behind her
back or overhead with her left arm, and the pain wakes her up intermittently at night. Id.
at 9. Petitioner asserts that her shoulder pain was not “acceptable” until the fall of 2019,
a year after vaccination. Id.
Respondent argues that the pain and suffering award should be no more than
6 Wilson v. Sec’y of Health & Human Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. Mar.
18, 2021); Collado v. Sec’y of Health & Human Servs., No. 17-0225V, 2018 WL 3433352 (Fed. Cl. Spec.
Mstr. June 6, 2018); Leslie v. Sec’y of Health & Human Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl.
Spec. Mstr. Jan. 28, 2021).
6

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$65,000.00. Opp. at 1. Respondent emphasizes Petitioner’s three-month delay in seeking
care after her vaccination. Opp. at 6. Respondent argues that Petitioner’s “voluntary delay
suggests that the pain was not significant enough to prompt sooner treatment.” Id. (citing
Knauss and Marino).7 Respondent further maintains that Petitioner’s surgery was a
minimally invasive outpatient procedure, and that it significantly improved her injury. Opp.
at 7.
Overall, Respondent characterizes Petitioner as enduring moderate pain for less
than eight months. Opp. at 8. Respondent emphasizes prior decisions in George, Knauss,
and Dagen, in which the pain and suffering awards were $67,000, $60,000, and $65,000,
respectively.8
3. Analysis
Overall, and based on the record and parties’ arguments, it is my conclusion that
the pain and suffering award should not be as high as Petitioner proposes, nor as low as
Respondent suggests. Rather, the appropriate “range” for the award is narrower.
There is objective, medical record evidence supporting a finding that Petitioner’s
symptoms continued for nearly eight months. Although she did not seek care until three
months after vaccination, once she did so her treatment efforts continued for over four
and a half months, including surgery, an unsuccessful cortisone injection, and three
months of intensive PT. Thus, her delay in treatment does suggest a lack of immediate
severity (and is a relevant consideration herein), but the overall course thereafter
underscores that the injury was serious enough to warrant persistent medical attention.
The record is less supportive of the conclusion that Petitioner’s injury remains as
severe, however. While Petitioner asserts that her symptoms continue to this day, she
has not sought medical attention for her injury in nearly three years, and at the time of
discharge the medical record evidence reveals that she had regained function and
reported experiencing little to no pain. I acknowledge, however, that her shoulder ROM
remained objectively decreased at that time, and that supports Petitioner’s affidavit
evidence asserting that her symptoms did not end at discharge. While Petitioner required
surgery and intensive PT, she had a good recovery.
7 Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018); Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 2018 WL 2224736 (Fed. Cl. Spec.
Mstr. Mar. 26, 2018).
8 George v. Sec’y of Health & Human Servs., No. 18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July
10, 2020); Knauss, 2018 WL 3432906; Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL
7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2019).
7

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Although I do find the comparable cases cited by Petitioner to be a bit high under
the circumstances, Respondent’s comparables are little better – for they involve less
severe circumstances, and for the most part did not involve surgical intervention, which I
view as significant.
Of the cases cited in the parties’ briefs, I find Collado to be the most useful. That
petitioner was awarded $120,000 for pain and suffering for an injury of comparable
duration. The petitioner in Collado had slightly worse pain, but slightly less ROM
restriction as well, and (like Ms. Vaccaro) underwent a cortisone injection and surgery,
with a similarly good outcome. Petitioner in this case underwent more PT, but her three
month delay in seeking care in this case (two and a half months longer than in Collado)
is indicative of a less serious injury.
I find two additional cases to be useful benchmarks. The petitioner in Knudson9
experienced an injury that was slightly shorter in duration but similar in severity. That
individual sought care only 14 days after vaccination and also underwent surgery, but did
not have a cortisone injection and underwent less PT, and was awarded $110,000 for
pain and suffering. Also instructive is Cates.10 That petitioner’s injury duration was slightly
shorter than in this case, but the severity was similar, and both underwent surgery, one
cortisone injection, and similar amounts of PT. The petitioner in Cates sought care only
11 days after vaccination, and was awarded $108,000 for pain and suffering.
Thus, taking all of the above into account, I award Petitioner $110,000.00 for pain
and suffering.
B. Unreimbursable Expenses
The parties agree that Petitioner is entitled to $791.11 for past unreimbursable
expenses, and I award this amount.
IV. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $110,000.00 represents a fair and appropriate amount of
9 Knudson v. Sec’y of Health & Human Servs., No. 17-1004, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov.
7, 2018).
10 Cates v. Sec’y of Health & Human Servs., No. 18-0277V, 2020 WL 3751072 (Fed. Cl. Spec. Mstr. June
5, 2020).
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compensation for Petitioner’s actual pain and suffering.11 I also find that Petitioner
is entitled to $791.11 in actual unreimbursable expenses.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $110,791.11 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 the Court is directed to enter judgment in accordance with this
decision.12
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 & 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)).
12 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9