VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01917
Package ID: USCOURTS-cofc-1_19-vv-01917
Petitioner: Debra Cain
Filed: 2019-12-18
Decided: 2022-11-14
Vaccine: influenza
Vaccination date: 2019-01-15
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Debra Cain filed a petition alleging that an influenza vaccination received on January 15, 2019, caused her to suffer a right shoulder injury related to vaccine administration (SIRVA). The case was initially recommended for denial by the respondent. However, the Special Master found that Ms. Cain preponderantly established that she experienced onset of shoulder pain within forty-eight hours of receiving her vaccination. The respondent subsequently amended their report, acknowledging the Special Master's finding on onset as the law of the case. While preserving the right to appeal the onset finding, the respondent conceded that Ms. Cain otherwise satisfied the criteria set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation for SIRVA. The respondent further acknowledged that Ms. Cain's injury lasted for more than six months and did not dispute that she met all legal prerequisites for compensation. Based on the respondent's position and the evidence, the Special Master found that Ms. Cain is entitled to compensation. The decision was an entitlement ruling, with damages to be determined later.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01917-0
Date issued/filed: 2022-09-26
Pages: 13
Docket text: PUBLIC DECISION (Originally filed: 8/31/2022) regarding 42 Findings of Fact & Conclusions of Law. Signed by Special Master Daniel T. Horner. (amb) Service on parties made.
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Case 1:19-vv-01917-UNJ Document 44 Filed 09/26/22 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1917V
Filed: August 31, 2022
UNPUBLISHED
Special Master Horner
DEBRA CAIN,
Petitioner,
Finding of Fact; Shoulder Injury
v.
Related to Vaccine
Administration (“SIRVA”); Onset
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT1
On December 18, 2019, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that as a result of an
influenza (“flu”) vaccination received on January 15, 2019, she suffered a right shoulder
injury related to vaccine administration (“SIRVA”). (ECF No. 1.) Petitioner now moves
for a finding of fact regarding the onset of her shoulder pain. (ECF No. 39.) For the
reasons discussed below, I find that petitioner experienced onset of shoulder pain within
48 hours of receiving her vaccination.
I. Procedural History
Petitioner filed her petition on December 18, 2019, followed by supporting
medical records and a Statement of Completion on December 30, 2019. (ECF Nos. 1,
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10-34.
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6, 7.) This case was originally assigned to the Court’s Special Processing Unit (“SPU”).
(ECF No. 9.)
After petitioner filed additional medical records to support her petition (ECF Nos.
13, 17, 21), respondent filed his Rule 4(c) report recommending against compensation
on April 19, 2021 (ECF No. 25). Respondent stated that petitioner’s presentation is
inconsistent with a SIRVA, specifically, that the records do not support an onset of a
shoulder injury within 48 hours of vaccine administration. (ECF No. 25, p. 7.)
Accordingly, Chief Special Master Corcoran determined that the case was no longer
appropriate for SPU. (ECF No. 26.) Thereafter, this case was reassigned to my docket.
(ECF No. 27.)
A fact hearing was held on August 18, 2021. (ECF No. 35, Transcript of
Proceedings (“Tr.”).) Following the hearing, the parties agreed to brief the issue of
onset. (ECF No. 36.) Petitioner filed her motion for a finding of fact on November 18,
2021. (ECF No. 39.) Respondent filed his response to petitioner’s motion on January
3, 2022. (ECF No. 40.) Petitioner filed her reply on January 17, 2022. (ECF No. 41.)
This matter is now ripe for a finding of fact regarding the issue of onset.
II. Factual History
a. As Reflected in Medical Records
Prior to vaccination, petitioner was involved in a motor vehicle accident in March
2003. (Ex. 14, p. 6.) Due to complications from the accident, petitioner underwent a left
shoulder subacromial decompression on February 16, 2012. (Ex. 11; see also Ex. 3, p.
57.) In addition to her left shoulder injury, petitioner has a history of left leg numbness,
chronic back pain, sciatica, gastroesophageal reflux disease, left knee pain,
hypertension, hyperlipidemia, asthma, major depression, and anxiety. (Ex. 3, p. 17; Ex.
8, p. 4, 9, 17; Ex. 17.) Petitioner had no history of right shoulder pain before receiving
the flu vaccine.
On January 15, 2019, petitioner received the flu vaccine in her right shoulder at a
Safeway Pharmacy. (Ex. 1, p. 4.)
About three months later, on April 25, 2019, petitioner first sought medical care
for her right shoulder pain at the UCHealth Memorial Hospital emergency room (“ER”).
(Ex. 13, p. 9.) Petitioner described her right shoulder pain as “chronic.” (Id.) The
history provided indicated that petitioner’s pain was “worsening,” not beginning, one
month ago. (Id. at 10.) This record does not indicate when petitioner’s initial onset
occurred. The ER doctor did not note any swelling and observed that there was no
tenderness to palpitation in petitioner’s right shoulder. (Id. at 12.) Petitioner’s
differential diagnoses included possible “shoulder sprain, rotator cuff tear, adhesive
capsulitis, [and] impingement.” (Id. at 9.) The ER doctor ruled out only “obvious acute
bony shoulder injury” and noted “it is difficult to rule out all possibilities during an ER
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visit.” (Id.) Petitioner received a referral to an orthopedist and was directed to follow up
with her primary care physician. (Id. at 10.)
Later that same day, petitioner went to the Penrose Hospital ER with complaints
of hypertension and right-sided shoulder pain.”3 (Ex. 3, p. 60.) The ER doctor recorded
that petitioner had “[p]ain with right shoulder range of motion, no pain with minimal
range of motion.” (Id. at 59.) The history of present illness indicates that petitioner had
shoulder pain “for the last month.” (Id. at 57.) The final diagnosis at this visit was
“[r]ight shoulder pain, unspecified chronicity.” (Id. at 60.) Petitioner underwent an x-ray
of her right shoulder, which showed mild hypertrophy in the acromioclavicular joint and
mild degenerative joint disease. (Id. at 66-67.) Petitioner received a Toradol injection
and was directed to follow up with her primary care provider. (Id. at 60.)
Petitioner began seeing a new primary care physician, Dr. Dominique Walker, on
May 31, 2019. (Ex. 4, p. 52.) Petitioner reported that she had “[c]hronic right shoulder
pain” and that her bilateral shoulders were “in pain all the time.” (Id. at 56-57.)
Petitioner denied any injury to her right shoulder but noted that she “feels like she has
worse pain every time she has a flu shot.” (Id. at 57.) Upon examination, Dr. Walker
observed “decreased range of motion, tenderness, crepitus, pain and decreased
strength” in her right shoulder. (Id. at 58.) Dr. Walker referred petitioner to physical
therapy. (Id. at 63.)
On June 25, 2019, petitioner visited orthopedist Dr. John Pak for her right
shoulder pain. (Ex. 5, p. 41.) Dr. Pak noted that petitioner’s onset of right shoulder pain
occurred in March 2019. (Id.) He recorded, “Patient states she received a flu shot back
in March got a big lump and ever since has had shoulder pain.” (Id.) Dr. Pak further
noted that petitioner experienced “some pain shortly after her flu shot” and “noticed
increasing pain as well as decreased range of motion.” (Id. at 43.) Dr. Pak diagnosed
petitioner with right shoulder bursitis, chronic right shoulder pain, adhesive capsulitis,
and right shoulder impingement. (Id.) Dr. Pak administered a cortisone injection in
petitioner’s right shoulder and recommended physical therapy. (Id.)
Petitioner attended her first physical therapy session at Action Potential Physical
Therapy on July 8, 2019. (Ex. 6, p. 11.) The physical therapy records note that
petitioner had been experiencing right shoulder pain since March 2019. The records
further state that petitioner’s “shoulder started bothering her after a [f]lu shot.” (Id.)
Petitioner’s handwritten intake form for this evaluation confirms that petitioner reported:
“I had a flu shot[,] soreness became painful and got bad.” (Id. at 15.) Petitioner wrote
“March” when prompted to answer whether she had any “recent flare-up.” (Id.)
Petitioner returned for another physical therapy session on July 11, 2019, during which
she had difficulty performing exercises due to her pain. (Id. at 3.)
On July 23, 2019, petitioner returned to Dr. Pak. (Ex. 5, p. 26.) Petitioner
reported that her right shoulder pain had not improved since beginning physical therapy,
3 This record inconsistently records the affected shoulder. (Compare Ex. 3, p. 57 (incorrectly recording
the left shoulder), with id. at 60 (correctly recording the right shoulder).)
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and that her pain had increased. (Id.) Petitioner reported that her prior cortisone
injection provided only minimal relief and that she continued to struggle with activities of
daily living. (Id.) Dr. Pak discussed surgical intervention, and petitioner scheduled
“manipulation under anesthesia of the right shoulder followed by right shoulder
arthroscopy with debridement and possible subacromial decompression/acromioplasty.”
(Id.)
Petitioner returned to Dr. Pak for a pre-operative evaluation on August 9, 2019.
(Ex. 5, p. 9.) Petitioner confirmed her desire to proceed with the surgery, and it was
scheduled for the following week. (Id.) On August 14, 2019, petitioner underwent a
right shoulder arthroscopy with capsular release and subacromial decompression and
acromioplasty. (Ex. 7, p. 35.)
Petitioner has not submitted any records documenting her treatment beyond
August 14, 2019.
b. As Reflected in Affidavits
i. Petitioner’s Affidavit
Petitioner filed an affidavit on December 30, 2019. (Ex. 2.) Petitioner avers in
her affidavit that within hours of receiving the flu shot on January 15, 2019, her right
shoulder began to “swell up like an egg at the injection site.” (Id. at 2.) She states that
the swelling began to resolve after a few days. (Id.) However, once the swelling
resolved, petitioner states that her shoulder pain increased, and her range of motion
decreased in the days following her flu shot. (Id.) Petitioner averred that during this
time, she had Medicaid, and “It was unlikely that [she] could see a specialist for [her]
shoulder.” (Id. at 3.) When her shoulder pain “became unbearable,” she decided to go
to the ER. (Id.)
ii. Affidavit of Debora Hodge
Petitioner also submitted an affidavit from her friend and former roommate,
Debora Hodge, who she lived with at the time she received her flu shot. (Ex. 15.) Ms.
Hodge recalled that petitioner’s symptoms began within 48 hours of receiving her flu
vaccine on January 15, 2019. Ms. Hodge stated in her affidavit that she spent every
day with petitioner. She recalled that petitioner received a flu shot on January 15, 2019,
and that “about 30 minutes after receiving the flu shot, [petitioner] came home and
immediately complained to me of her shoulder pain at the site of injection.” (Id. at 2.)
When she asked petitioner what was wrong, petitioner told her that “her right shoulder
hurt a lot after receiving the shot.” (Id.) Ms. Hodge averred that she inspected the
injection site the day petitioner received her flu shot and stated that it “was already
swollen to the size of a golf ball.” (Id.) Ms. Hodge further noted that based on her
experience as a medical assistant, she “immediately noticed that the site of the injection
was too high up on [petitioner’s] shoulder.” (Id.)
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Ms. Hodge further stated that she accompanied petitioner when she went to the
ER in March 2019 and that “[w]hen the doctor noticed the swelling and the location of
the injury, the doctor specifically asked if [petitioner] had received a flu shot at the
location of the injury.” (Ex. 15, p. 2.)
Ms. Hodge passed away before the fact hearing held on August 18, 2021. (ECF
No. 31; Tr. 4; ECF No. 39, p. 6.)
c. As Reflected in Testimony
At the fact hearing on August 18, 2021, petitioner testified about the injury to her
left shoulder after a car accident in 2003. (Tr. 8.) Petitioner had surgery on her
shoulder in March 2011 because she did not address the injury until it worsened. (Id.)
After the surgery, petitioner completed physical therapy, and her left shoulder injury
completely resolved within six months of the surgery, around September or October
2011. (Id.) Petitioner testified that from September or October 2011 through January
2019, she had no shoulder pain in either of her shoulders. (Id. at 9.)
Petitioner received the flu vaccine on January 15, 2019, at the Safeway
Pharmacy, while she was grocery shopping. (Tr. 11.) Petitioner testified that she
requested the vaccine in her right shoulder because she was “afraid that they would do
damage to the previous surgery on the left side.” (Id.) Petitioner testified that she
received the flu shot “high up” in her right shoulder, and that she was in immediate pain
by the time she got to the parking lot. (Id. at 11, 17.) Petitioner stated that by the time
she got to her car, her right shoulder began to swell. (Id.) She recalled that the swelling
“looked like a small egg underneath the skin.” (Id. at 12.)
After the vaccination, petitioner went straight home and spoke with her
roommate, Ms. Hodge. (Tr. 13.) She recalled telling Ms. Hodge that she had received
the flu shot, that her arm was swollen and painful, and that she was in more pain than
she had experienced with previous shots. (Id.) Ms. Hodge looked at petitioner’s
shoulder and they agreed to “wait for a while” and “[take] care of it at home” because
petitioner did not “have any access to medical care at the time.” (Id.) To manage her
pain, petitioner testified that she used hot and cold packs, a TENS machine, and
Tylenol. (Id. at 14.) Petitioner stated that even though she had never experienced
swelling at an injection site before, she did not consider asking the pharmacist about the
lump that developed. (Id. at 40.)
While petitioner remembered having immediate pain after vaccination, she
testified that she began to lose range of motion and notice weakness in her right
shoulder about three or four days after the injection. (Tr. 15.) Over the next several
weeks, petitioner’s pain worsened. (Id. at 14.) She testified that she began having
trouble dressing herself and doing her hair in January 2019. (Id. at 42-42.) Additionally,
she had difficulty performing activities of daily living such as vacuuming, reaching to get
things from the refrigerator, and using the steering wheel in her car. (Id. at 14, 16.) She
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described the pain as “bone-on-bone” and stated that she could “hardly use [her] right
arm at all.” (Id. at 14.)
Petitioner testified that she visited the Penrose Hospital ER on April 25, 2019,
because her right shoulder pain was “intense.” (Tr. 16.) Petitioner stated that she
considered seeing a doctor right away for her shoulder pain but delayed treatment
because she had no insurance coverage. (Id. at 15, 17, 44.) Petitioner had recently
moved from Arizona to Colorado, and she believed that her “insurance had not
transferred with [her] yet.” (Id. at 15, 17.) She further explained that because her
insurance coverage would not become effective until May 1, 2019, she tried to delay
treatment to avoid incurring medical bills she could not pay.4 (Id.) Before visiting
Penrose Hospital, she recalled that she could not sleep, and she was in “severe
excruciating pain every day, every time [she] moved [her] arm.” (Id. at 16.) She
claimed that Tylenol was no longer helping, and she “couldn’t take the pain anymore[.]”
(Id.) She was also unable to perform activities of daily living, such as vacuuming and
doing the dishes. (Id.) Petitioner confirmed that from her vaccination on January 15,
2019, to her presentation to the ER on April 25, 2019, she did not suffer any accidents,
falls, or other trauma that could explain her shoulder pain. (Id. at 17.)
At Penrose Hospital petitioner recalled informing the doctor that the pain began
immediately after receiving the flu shot. (Id.) She testified, “The doctor examined my
shoulder, asked me if I had any injuries, and I told him no, nothing but the flu shot.” (Id.)
Petitioner testified that the doctor then evaluated her range of motion, ordered an x-ray,
administered a Toradol shot, and referred her to an orthopedist. (Id. at 17-18.)
Petitioner stated that the doctor believed petitioner had “a frozen shoulder” because she
did not have full range of motion. (Id.)
Petitioner acknowledged that she told medical staff that her shoulder injury
began after receiving a flu vaccine in March 2019 even though she received the flu
vaccine in January 2019. (Id. at 18-19.) Petitioner explained that she mistakenly told
medical staff that she received the flu vaccine in March 2019 because she had been off
her psychiatric medication for a year and had trouble identifying the date of her injury
due to her psychiatric issues. (Id.) She elaborated:
I had run out of my medication for my psychiatric issues. And when that
happens, there’s something down in my brain and I become confused, I
have rapid speech, I don’t know what time of day it is or what day it is
sometimes. I just kind of live from hour to hour like that. I have extreme
paranoia from it . . . . [U]ntil I was able to see my doctor, I was unmedicated
and just kind of spinning there waiting. And no time—you know, you don’t
have any concept of time. You get days mixed up, months mixed up, even
4 After the fact hearing, petitioner filed a letter from the State of Colorado dated March 21, 2019. (Ex. 18.)
The letter indicated that petitioner applied for medical assistance benefits on March 20, 2019, and her
application was approved the same day. (Id. at 3.) The letter noted that petitioner’s Health First Colorado
(Colorado Medicaid) benefits would cover past medical costs from February 1 to 28, 2019, and that her
Colorado Medicaid coverage would begin on April 1, 2019. (Id. at 4.)
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years sometimes. But I did the best I could without being medicated, you
know . . . .
(Id. at 18-19.)
Petitioner testified that her next medical visit was with her primary care physician,
Dr. Walker. (Tr. 20.) Petitioner confirmed that she was not taking any psychiatric
medication at the time of this visit. (Id.) Petitioner established care with Dr. Walker so
that she could obtain a referral to an orthopedist. (Id.) She recalled her right shoulder
being in significant pain at the time of the visit. (Id. at 22.) At the visit, petitioner again
associated the onset of her right shoulder pain with her flu shot. (Id. at 21.) Dr. Walker
prescribed petitioner Zoloft for her psychiatric issues and referred her to an orthopedist.
(Id.)
The next month, petitioner recalled seeing orthopedist Dr. Pak at Centura
Orthopedics. (Tr. 22.) Petitioner testified that she told Dr. Pak that the pain in her right
shoulder began after she received a flu vaccine. (Id. at 22-23.) She testified that she
did not speak with Dr. Pak about any other potential causes for her right shoulder pain.
(Id.) Petitioner stated that she did not tell Dr. Pak the date of her flu shot, but she
believed the records indicate a March 2019 onset because Dr. Pak and Dr. Walker
shared the same computer system. (Id. at 24.) At the visit with Dr. Pak, petitioner
received a cortisone injection in her right shoulder, which did not alleviate the pain. (Id.
at 22-23.)
Petitioner testified that she saw Dr. Pak about five more times before her
shoulder surgery. (Tr. 25.) Petitioner also recalled attending two or three physical
therapy sessions before her surgery, which did not help her pain. (Id. at 22-24.)
Petitioner testified that she did not inform her physical therapist of the date of her flu
shot, but she believed the physical therapy records reflect March 2019 as the onset
because the facility, Action Potential, is part of the same health system as Dr. Walker
and Centura Orthopedics. (Id.)
After cortisone injections and physical therapy failed to alleviate her right
shoulder pain, petitioner elected to have surgery in August 2019. (Id. at 27.) Petitioner
recalled attending six to eight physical therapy sessions and receiving one cortisone
shot after her surgery to help rehabilitate her shoulder. (Id. at 28-29.) However, she
testified that she decided to stop physical therapy and continue therapy exercises at
home with the help of Ms. Hodge due to her agoraphobia. (Id.)
When asked about the current state of her right shoulder, petitioner stated she
still experiences weakness and cannot hold her arm up for very long. (Id. at 30.)
Although she has range of motion, petitioner testified that she “do[es] not have range of
motion without pain.” (Id.) Additionally, petitioner stated that she continues to struggle
with activities of daily life, including braiding her hair, picking up her great
granddaughter, and picking up groceries and laundry baskets. (Id.) Petitioner also
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stated that she was seeking treatment for her mental health at the time of the fact
hearing. (Id. at 32.)
III. Standard of Adjudication
The Vaccine Act instructs that the special master may find the time period for the
first symptom or manifestation of onset required for a Table Injury is satisfied “even
though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such a period.” § 300aa-13(b)(2).
However, consistent with petitioner’s burden of proof overall, that finding must be
supported by preponderant evidence. Id.
The process for making determinations in Vaccine Program cases regarding
factual issues begins with consideration of the medical records. § 300aa-11(c)(2). The
special master is required to consider “all [ ] relevant medical and scientific evidence
contained in the record,” including “any diagnosis, conclusion, medical judgment, or
autopsy or coroner's report which is contained in the record regarding the nature,
causation, and aggravation of the petitioner's illness, disability, injury, condition, or
death,” as well as “the results of any diagnostic or evaluative test which are contained in
the record and the summaries and conclusions.” § 300aa-13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous
medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d
415, 417 (Fed. Cir. 1993) (it is within the special master's discretion to determine
whether to afford greater weight to contemporaneous medical records than to other
evidence, such as oral testimony surrounding the events in question that was given at a
later date, provided that such a determination is evidenced by a rational determination).
Petitioner must prove by a preponderance of the evidence the factual circumstances
surrounding her claim. § 300aa-13(a)(1)(A).
Medical records that are created contemporaneously with the events they
describe are generally considered “trustworthy.” Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, if the medical records are
clear, consistent, and complete, then they should be afforded substantial weight.
Lowrie v. Sec'y of Health & Human Servs., No. 03-1585V, 2005 WL 6117475, at *20
(Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records are
generally found to be deserving of greater evidentiary weight than oral testimony—
especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d
at 1528; see also Murphy v. Sec'y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991)
(citing United States v. United States Gypsum Co., 333 U.S. 364, 396 (1948) (“It has
generally been held that oral testimony which is in conflict with contemporaneous
documents is entitled to little evidentiary weight.”), aff'd, 968 F.2d 1226 (Fed. Cir. 1992),
cert. den'd, Murphy v. Sullivan, 506 U.S. 974 (1992)
However, there are situations in which compelling oral testimony may be more
persuasive than written records, such as where records are deemed to be incomplete or
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inaccurate. Campbell v. Sec'y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006)
(“like any norm based upon common sense and experience, this rule should not be
treated as an absolute and must yield where the factual predicates for its application are
weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“Written records which are,
themselves, inconsistent, should be accorded less deference than those which are
internally consistent.”) (quoting Murphy, 23 Cl. Ct. at 733).
When witness testimony is offered to overcome the presumption of accuracy
afforded to contemporaneous medical records, such testimony must be “consistent,
clear, cogent, and compelling.” Sanchez v. Sec’y of Health & Human Servs., 2013 WL
1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30,
1998)). In determining the accuracy and completeness of medical records, the Court of
Federal Claims has listed 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
Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff'd, 746 F.3d 1334 (Fed.
Cir. 2014). In determining whether to afford greater weight to contemporaneous
medical records or other evidence, such as testimony at hearing, there must be
evidence that this decision was the result of a rational determination. Burns, 3 F.3d at
417.
IV. Party Contentions
a. Petitioner’s Contentions
Petitioner contends that the record as a whole supports a finding that petitioner’s
right shoulder pain began within 48 hours of her January 15, 2019 flu vaccination. (ECF
No. 39, p. 15.) Petitioner notes that she averred in her affidavit that she experienced
immediate pain in her right shoulder following vaccination. (Id. (citing Ex. 2).) Petitioner
argues that petitioner’s affidavit testimony is supported by Ms. Hodge’s affidavit, in
which Ms. Hodge recalled petitioner’s shoulder pain beginning shortly after receiving the
flu vaccine. (Id. (citing Ex. 15, p. 2).) Further, petitioner contends that her and Ms.
Hodge’s affidavit testimony is supported by petitioner’s fact hearing testimony. (Id. at
15-16.) At the fact hearing, petitioner testified that after receiving the flu shot, she was
in pain by the time she reached the parking lot, and that her right shoulder was swollen
by the time she arrived home. (Tr. 11-13, 17.) She further testified that she informed
her providers that her right shoulder pain began after receiving the flu shot. (Id. at 17,
21-23.) Additionally, petitioner argues that her testimony that she had not had any
accidents, falls, or other trauma between January 15, 2019, and April 25, 2019,
supports a finding that her right shoulder pain began within 48 hours of vaccination.
(ECF No. 39, p. 17 (citing Tr. 32).)
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Petitioner further contends that the medical records support her contention that
her shoulder pain began within 48 hours of receiving the flu vaccination. (ECF No. 39,
17-19.) Petitioner relies on the medical records from her visits to Dr. Walker, Dr. Pak,
and her physical therapist, during which she consistently associated her right shoulder
pain with her flu shot. (Id. (citing Ex 4, pp. 56-57; Ex. 5, pp. 41-43; Ex. 6, p. 6).) She
argues that her testimony regarding her mental health issues explains why some of the
medical records document an onset of March 2019. (Id. at 18-19 (citing Tr. 19).)
Petitioner notes that due to her untreated psychiatric illness, her “concept of time, dates,
and space were adversely affected.” (Id. at 19.) Despite petitioner providing an
incorrect onset date of March 2019, petitioner emphasizes that she consistently related
her right shoulder pain to receipt of her flu shot. (Id.)
Regarding petitioner’s delay in seeking treatment until approximately three
months after vaccination, petitioner contends that her fact hearing testimony provides a
credible explanation. (ECF No. 39, p. 19.) Petitioner notes that she had a gap in
insurance coverage when she moved from Arizona to Colorado. (Id. (citing Tr. 15).)
She stresses that once her Medicare benefits had been established in Colorado, she
“promptly set up an appointment with her primary care physician” to address her
shoulder pain. (Id.) She claims that her testimony is supported by the letter from the
State of Colorado describing that petitioner did not have Medicaid coverage until April
2019. (Id. (citing Ex. 18, p. 7).) Thus, petitioner contends that the totality of evidence
supports a finding that her right shoulder pain began within 48 hours of vaccination.
b. Respondent’s Contentions
To dispute petitioner’s contention that her shoulder pain began within 48 hours of
vaccination, respondent challenges the credibility of both petitioner’s testimony and Ms.
Hodge’s affidavit. (ECF No. 40, p. 11-12.) Specifically, respondent argues that
petitioner’s testimony as to which providers she described the onset of her pain was
“inconsistent and unreliable.” (Id. at 11.) Respondent claims that petitioner testified that
that some of her providers must have acquired information regarding the date of onset
from shared electronic records, but she contradicted herself on cross-examination when
she acknowledged that she incorrectly provided an onset of March 2019. (Id. at 11-12.)
Respondent also notes that it is unclear whether petitioner’s medical providers are part
of the same health care system and would have shared electronic records. (Id. at 11,
n.6.) Additionally, respondent points out that petitioner first testified that her physical
therapist must have recorded the incorrect onset date due to a language barrier, but
later admitted that she likely reported a March 2019 onset date. (Id. at 12 (citing Tr. 51-
52).) Respondent also notes that petitioner “was unable to accurately recall the date of
her prior left shoulder surgery and acknowledged, ‘I frequently mess up dates and that’s
my fault.’” (Id. (citing Tr. 37).) Regarding Ms. Hodge’s affidavit, respondent
emphasizes that it “contained several inaccuracies, raising questions as to the reliability
of her recollection.” (Id.) For instance, respondent notes that Ms. Hodge’s affidavit
incorrectly described petitioner’s ER visit as occurring in March 2019 and that Ms.
Hodge claimed petitioner’s right shoulder had swelling at the time of her ER visit, though
the ER visits do not document swelling. (Id.)
10

Case 1:19-vv-01917-UNJ Document 44 Filed 09/26/22 Page 11 of 13
Respondent also argues that the medical records do not support petitioner’s
claim that she experienced an onset of pain in her right shoulder within 48 hours of
vaccination because “petitioner’s medical records consistently document the onset of
right shoulder pain in March 2019.” (ECF No. 40, p. 12.) Respondent relies on
petitioner’s first ER visit on April 25, 2019, during which petitioner reported worsening
shoulder pain over the past month, and petitioner’s second ER visit on the same date,
during which she reported right shoulder pain for the past month. (Id. at 11 (citing Ex.
13; Ex. 3, p. 57).) Respondent also cites the medical records from petitioner’s visit to
Dr. Pak and to her physical therapist, which document a March 2019 onset date. (Id.
(citing Ex. 5, pp. 41, 43; Ex. 6, p. 11).) Respondent acknowledges petitioner’s
testimony that she “inaccurately reported the onset of her shoulder pain because she
was unmedicated at the time and could not keep days, months, or sometimes even
years straight” but stresses that petitioner consistently reported March 2019 as the
onset of her pain despite this confusion. (Id.)
Further, respondent asserts that petitioner’s delay in seeking treatment indicates
that her shoulder pain did not begin within 48 hours of vaccination. (ECF No. 40, p. 10.)
Petitioner first sought treatment for her shoulder pain on April 25, 2019, over three
months after vaccination. (Ex. 13, p. 9; Ex. 3, p. 60.) Respondent notes that petitioner
applied and received approval for state medical assistance benefits on March 20, 2019,
and her benefits became effective on April 1, 2019—not May 1, 2019, as petitioner
suggested. (ECF No. 40, p. 10-11.) Respondent challenges petitioner’s testimony that
she sought treatment at the ER on April 25, 2019 because “she couldn’t take it
anymore” and emphasizes that “her benefits had already been in effect for nearly a
month at that point.” (Id. at 11 (quoting Tr. 16).) Thus, based on the record as a whole,
respondent contents that there is not preponderant evidence that petitioner’s shoulder
pain began within 48 hours of vaccination.
V. Discussion
Upon my review of the entire record, I find preponderant evidence that
petitioner’s alleged vaccine-caused shoulder pain began within 48 hours of her January
15, 2019 flu vaccination. This finding is based in part on petitioner’s testimony
describing pain beginning immediately post-vaccination (Tr. 11-13, 17), but also on
petitioner’s contemporaneous treatment records which repeatedly and consistently
attribute her shoulder pain to her vaccination. (See Ex. 4, pp. 56-57 (Dr. Walker); Ex. 5,
pp. 31-43 (Dr. Pak); Ex. 6, p. 11 (physical therapy).) Petitioner also explained that she
did not suffer any other accidents, falls, or other traumas during the relevant period that
would explain her right shoulder condition (Tr. 17), a point that would seem to be
corroborated by the medical records.
At her visit with Dr. Walker, petitioner associated her shoulder pain with receipt of
her flu shot. (See Ex. 4, pp. 56-57.) The record from petitioner’s visit to Dr. Pak on
June 25, 2019, confirms that petitioner related the onset of her shoulder pain to “shortly
after” receipt of the flu vaccination. (Ex. 5, pp. 43, 51.) Finally, at petitioner’s physical
therapy evaluation on July 8, 2019, petitioner reported that her right shoulder began
11

Case 1:19-vv-01917-UNJ Document 44 Filed 09/26/22 Page 12 of 13
bothering her after receipt of the flu shot. (Ex. 6, p. 11.) In her handwritten intake form
from this evaluation, petitioner stated “I had a flu shot[,] soreness became painful and
got bad.” (Id. at 15.) Thus, the medical records are persuasive in linking the onset of
petitioner’s shoulder pain to her flu vaccination. Even if these records do not explicitly
state that onset occurred within 48 hours, they are sufficient to corroborate petitioner’s
testimony that onset was immediate.
Some of petitioner’s medical records reflect onset occurring in March of 2019,
which is about three months post-vaccination. (Ex. 3, p. 57; Ex. 5, pp. 41, 43; Ex. 6, p.
11.) However, that stated period of onset is not controlling when viewing the record as
a whole. First, while these records indicate that onset occurred in March of 2019, many
of these same notations also place onset in the context of vaccination, which is
documented to have occurred earlier. Second, petitioner testifies that she was
experiencing date confusion at the time she was seeking treatment. (Tr. 18-19.) This is
corroborated by a contemporaneous medical record explicitly confirming that petitioner
had misreported her vaccination as having occurred in March.5 (Ex. 5, p. 41.) And,
finally, petitioner’s initial treatment record indicates that as of April 25, 2019, petitioner
had experienced a “worsening” of her shoulder pain one month prior, i.e., in March of
2019. (Ex. 13, p. 10.) That medical record characterizes the shoulder pain as “chronic”
by that time.6 (Id. at 9.) Petitioner similarly wrote “March” in her physical therapy intake
form when prompted to answer whether she had any “recent flare-up” (Ex. 6, p. 15),
which is consistent with her initial ER encounter at which she reported that her pain had
“worsened” in March (Ex. 13, p. 10). While these factors may not be compelling in
isolation, together they suggest that the specific notations of a March 2019 onset should
not weigh more heavily than the other evidence of record.
Although petitioner’s lack of insurance coverage until April 1, 2019, does not
provide a complete explanation for why she did not seek treatment until April 25, 2019,
a delay in seeking treatment does not per se defeat a claim for a Table Injury of SIRVA.
See, e.g., Lang v. Sec’y of Health & Human Servs., No. 17-995V, 2020 WL 7873272, at
*11 (Fed. Cl. Spec. Mstr. Dec. 11, 2020) (noting that “there is no such thing as an
‘appropriate’ time to seek treatment”); Smallwood v. Sec’y of Health & Human Servs.,
No. 18-0291V, 2020 WL 2954958, at *10 (Fed. Cl. Spec. Mstr. Apr. 29, 2020) (noting
that it is “common for a SIRVA petitioner to delay[] treatment, thinking his/her injury will
resolve on its own.”); Williams v. Sec’y of Health & Human Servs., No. 17-1046V, 2020
WL 3579763 (Fed. Cl. Spec. Mstr. Apr. 1, 2020); Gurney v. Sec’y of Health & Human
Servs., No. 17-481V, 2019 WL 2298790 (Fed. Cl. Spec. Mstr. Mar. 19, 2019); Tenneson
5 Because the contemporaneous medical records do explicitly confirm the fact of petitioner’s date
confusion vis-à-vis her vaccination, this fact finding does not turn on petitioner’s testimony that her
psychiatric condition was the specific reason she was experiencing such date confusion.
6 Petitioner also went to Penrose Hospital the same day. (Ex. 3.) Those records state that petitioner had
shoulder pain “for the last month.” (Id. at 57.) However, the Penrose Hospital records do demonstrate
some inconsistencies—for example conflicting notations regarding the effected shoulder. (Compare id. at
57 (incorrectly reporting left shoulder pain), with id. at 60 (correctly reporting right shoulder pain).) And, in
any event, that record ultimately documents the shoulder pain as being of “unspecified chronicity. (Id. at
60.)
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Case 1:19-vv-01917-UNJ Document 44 Filed 09/26/22 Page 13 of 13
v. Sec’y of Health & Human Servs. No. 16-1664V, 2018 WL 3083140 (Fed. Cl. Spec.
Mstr. Mar. 30, 2018); Forman-Franco v. Sec’y of Health & Human Servs., No. 15-
1479V, 2018 WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018).
Accordingly, petitioner has preponderantly established that she began
experiencing right shoulder pain within 48 hours of receiving her flu vaccination.
VI. Conclusion
In light of the above, there is preponderant evidence that petitioner experienced
right shoulder pain within 48 hours of her January 15, 2019 flu vaccination.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
13

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-01917-1
Date issued/filed: 2023-01-03
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/29/2022) regarding 48 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (amb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01917-UNJ Document 50 Filed 01/03/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1917V
Filed: November 29, 2022
UNPUBLISHED
Special Master Horner
DEBRA CAIN,
Petitioner,
Entitlement Ruling; Influenza
v.
(“Flu”) Vaccine; Shoulder Injury
Related to Vaccine
SECRETARY OF HEALTH AND
Administration (“SIRVA”); Table
HUMAN SERVICES,
Injury
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Neil Bhargava, U.S. Department of Justice, Washington, DC, for respondent.
Ruling on Entitlement1
On December 18, 2019, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that as a result of an
influenza (“flu”) vaccination received on January 15, 2019, she suffered a right shoulder
injury related to vaccine administration (“SIRVA”). (ECF No. 1.) Initially, respondent
filed a report recommending against compensation. (ECF No. 25.) However, on
August 31, 2022, I subsequently found that petitioner preponderantly established that
she experienced onset of shoulder pain within forty-eight hours of receiving her
vaccination. (ECF No. 42.) Thereafter, on November 14, 2022, respondent filed an
amended report. (ECF No. 47.)
In his amended report, respondent indicated that “[r]ecognizing that the Special
Master’s factual finding that petitioner’s right shoulder pain began within 48 hours of her
1 Because this ruling contains a reasoned explanation for the special master’s action in this case, it will be
posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act
of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10-34.
1

Case 1:19-vv-01917-UNJ Document 50 Filed 01/03/23 Page 2 of 2
January 15, 2019 flu vaccination is the law of the case, respondent advises that he will
not defend the case on other grounds during further proceedings before the Office of
Special Masters.” (Id. at 2.) Respondent further indicates that “[w]hile preserving his
right to appeal the Special Master’s August 31, 2022 Findings of Fact, respondent
submits that petitioner has otherwise satisfied the criteria set forth in the Vaccine Injury
Table and Qualifications and Aids to Interpretation (‘QAI’) for Shoulder Injury Related to
Vaccine Administration (‘SIRVA’).” (Id.) Further to this, respondent acknowledges that
petitioner suffered her injury for more than six months and does not dispute that
petitioner has satisfied all legal prerequisites for compensation under the Act. (Id. at 8.)
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
2

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_19-vv-01917-2
Date issued/filed: 2023-12-08
Pages: 16
Docket text: PUBLIC DECISION (Originally filed: 11/13/2023) regarding 59 DECISION AWARDING DAMAGES. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 1 of 16
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1917V
Filed: November 13, 2023
DEBRA CAIN, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On December 18, 2019, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (“the
Vaccine Act”).2 (ECF No. 1.) Petitioner alleged that she suffered from a shoulder injury
related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine
that she received on January 15, 2019. (Id.; ECF No. 33.) On November 29, 2022, I
issued a decision finding that petitioner was entitled to compensation for her SIRVA.
(ECF No. 48.) For the reasons discussed below, I now find that petitioner is entitled to
compensation in the amount of $97,500.00.
I. Procedural History
This case was initially assigned to the Special Processing Unit (“SPU”). (ECF
No. 8.) Petitioner initially filed medical records, labeled Exhibits P1-P8. (ECF No. 6.)
1 Because this document contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the document 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 All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa-
10-34.
1

Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 2 of 16
Petitioner filed additional medical records, labeled Exhibits P9-P16, between June of
2020 and February of 2021. (ECF Nos. 13, 17, 21.) Petitioner filed her statement of
completion on February 10, 2021. (ECF No. 22.) Respondent filed his Rule 4 Report
on April 19, 2021, primarily raising an issue as to onset of petitioner’s alleged condition
and recommending against compensation. (ECF No. 25.)
Thereafter, the case was assigned to the undersigned. (ECF Nos. 26-27.)
Petitioner filed additional medical records, labeled Exhibit P17, on August 11, 2021.
(ECF No. 32; Ex. P17.) On August 18, 2021, the undersigned held a fact hearing.
(ECF No. 35.) Subsequently, petitioner filed an amended petition on September 8,
2021, to clarify that she alleged a Table Injury of SIRVA. (ECF No. 33.) On November
18, 2021, petitioner filed additional documentation regarding her insurance coverage.
(ECF No. 38; Ex. P18.)
After briefing, the undersigned issued a fact finding on August 31, 2022. (ECF
No. 42.) The undersigned found that “there is preponderant evidence that petitioner
experienced right shoulder pain within 48 hours of receiving her January 15, 2019 flu
vaccination.” (Id. at 13.) On November 14, 2022, respondent filed an amended Rule 4
Report, in which he noted that “[i]n light of the Special Master’s fact ruling, and medical
record evidence submitted in this case, DICP has concluded that petitioner suffered
SIRVA as defined by the Vaccine Injury Table.” (ECF No. 47, p. 8.) Accordingly, the
undersigned issued a ruling on entitlement, finding that petitioner is entitled to
compensation. (ECF No. 48, p. 2.)
The parties were subsequently unable to resolve damages informally. On March
10, 2023, petitioner filed an additional affidavit and a motion for ruling on the record for
petitioner’s damages. (ECF Nos. 54, 55; Ex. P19.) Petitioner’s motion confirms that
only an award for actual pain and suffering is sought. (ECF No. 55, p. 33.) Respondent
filed a response on April 12, 2023, and petitioner filed her reply on April 27, 2023. (ECF
Nos. 56, 57.)
Based on all of the above, I have concluded that the parties have had a full and
fair opportunity to develop the record and that it is appropriate to resolve damages on
the existing record. See Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d
1362, 1366 (Fed. Cir. 2020) (citing Simanski v. Sec’y of Health & Human Servs., 671
F.3d 1368, 1385 (Fed. Cir. 2012); Jay v. Sec’y of Dept. of Health & Human Servs., 998
F.2d 979, 983 (Fed. Cir. 1993)); see also Vaccine Rule 8(d); Vaccine Rule 3(b)(2).
Accordingly, petitioner’s motion is now ripe for a ruling.
II. Factual History
a. As Reflected in Medical Records
Before her vaccination, petitioner was involved in a motor vehicle accident in
March of 2003. (Ex. P14, p. 6.) During the accident, petitioner suffered an injury to her
left shoulder and on February 16, 2012, petitioner underwent a subacromial
decompression on this shoulder. (Ex. P11, p. 4; see also Ex. P3, p. 57.) Petitioner also
has a history of left leg numbness, chronic back pain, sciatica, gastroesophageal reflux
disease, left knee pain, hypertension, hyperlipidemia, asthma, major depression, and
2

Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 3 of 16
anxiety. (Ex. P3, p. 17; Ex. P8, pp. 4, 9, 17; Ex. P17.) On January 15, 2019, petitioner
received the subject flu vaccine in her right shoulder at a Safeway Pharmacy. (Ex. P1,
p. 4; Ex. P16, p. 4.) Before receiving her vaccine, she had no history of right shoulder
pain.
Petitioner first sought treatment for her right shoulder pain at UC Health Memorial
Hospital’s emergency department on April 25, 2019, about three months post-
vaccination. (Ex. P13, p. 9.) She described her pain as worsening with movement. (Id.
at 10.) The record states that petitioner had full passive range of motion; however, she
experienced pain with abduction. (Id. at 12.) Petitioner was prescribed 50 mg of
tramadol to help with her pain. (Id. at 10.) Later that same night, petitioner presented to
the emergency room at Penrose Hospital for hypertension and chronic pain in her right
shoulder.3 (Ex. P3, pp. 48-49.) Petitioner described her pain as a 10/10. (Id. at 51.)
Petitioner had an x-ray of her right shoulder taken; however, it revealed no evidence of
fracture or dislocation. (Id. at 60.) Petitioner was given a shot of Toradol and was told
to follow up with her primary care physician for her hypertension. (Id.)
About a month later, on May 31, 2019, petitioner saw Dr. Dominique Walker for
an initial visit and to establish a primary care physician after moving from Arizona to
Colorado. (Ex. P4, p. 57.) During her appointment, petitioner discussed her chronic
right shoulder pain with Dr. Walker who referred her to Dr. John Pak, an orthopedic
surgeon. (Id. at 54, 56.) Petitioner saw Dr. Pak on June 25, 2019. (Ex. P5, p. 41.) Dr.
Pak diagnosed petitioner with both bursitis and adhesive capsulitis of the right shoulder.
(Id.) Petitioner described how she had both increased pain and decreased range of
motion following her flu shot. (Id. at 43.) Dr. Pak recommended a cortisone injection,
which she received at this appointment, and physical therapy. (Id. at 24, 43.) Petitioner
described her “pain as sharp, radiating, burning, tingling, numbness, and deep.” (Id. at
43.) During this appointment she rated her pain an 8/10. (Id.) She described
“overhead activities, reaching behind, reaching to the side, sleeping on affected side,
driving, [activities of daily living] and lifting” as aggravating factors. (Id.) During an
exam of her right shoulder, Dr. Pak noted that she had tenderness and an abnormal her
range of motion. (Id. at 46.)
Petitioner began physical therapy on July 8, 2019. (Ex. P6, p. 6; Ex. P10, p. 13.)
On that day, petitioner reported her pain as a 5/10 at best and a 10/10 at worst. (Ex.
P6, p. 6.) She further reported pain, stiffness, loss of motion, muscle spasms,
soreness, and weakness. (Id.) The physical therapist outlined a treatment plan
including Dry Needling, e-Stim, home exercises, hot and cold packs, joint and soft
tissue mobilization, manual therapy, neuromuscular re-education, and therapeutic
activities and exercises. (Id. at 8.) The physical therapist recommended that petitioner
be seen two times a week for six weeks. (Id.) Petitioner’s next physical therapy
session was on July 11, 2019. (Ex. P6, p. 3; Ex. P10, p. 10.) During this session, she
again described her pain as a 5/10 at best and a 10/10 at worst. (Ex. P6, p. 3.) The
physical therapist described petitioner as “able to perform the exercises currently with
difficulty due to pain.” (Id. at 4.)
3 This record inconsistently records the affected shoulder. (Compare Ex. P3, p. 57 (incorrectly recording
the left shoulder), with id. at 60 (correctly recording the right shoulder).)
3

Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 4 of 16
On July 19, 2019, petitioner saw Dr. Walker for conditions unrelated to her
shoulder pain. (Ex. P4, p. 12.) At this appointment, Dr. Walker briefly mentioned
petitioner’s shoulder pain during a physical examination. (Id. at 18.) She described
petitioner as exhibiting “decreased range of motion, tenderness, crepitus, pain and
decreased strength.” (Id.)
On July 23, 2019, petitioner returned to Dr. Pak for a follow up appointment. (Ex.
P5, p. 24.) Petitioner described no improvement in her symptoms and rated her pain as
a 10/10. (Id. at 26.) During this appointment, petitioner elected to proceed with a “more
aggressive” treatment plan and opted for surgery. (Id.) Petitioner had her pre-operative
appointment with Dr. Pak on August 9, 2019, and on August 14, 2019, she had a right
shoulder arthroscopy with capsular release and subacromial decompression and
acromioplasty. (Id. at 7; Ex. P7, p. 2; Ex. P12, p. 4.) Dr. Pak noted that petitioner had a
“fairly tight capsule throughout along with what appears to be a market synovitis
throughout the shoulder joint. No rotator cuff [tear] was noted intra-articular or extra-
articular in the subacromial space.” (Ex. P12, p. 4.)
Less than 48 hours after her procedure, petitioner was taken by ambulance to
Penrose Hospital Emergency Department due to nausea, vomiting, and abdominal pain.
(Ex. P3, pp. 5, 16.) An x-ray was done on petitioner’s stomach, but it did not reveal any
evidence of obstruction or free air. (Id. at 21.) She also had no signs of an infection.
(Id.) Petitioner was given “symptomatic medications” and “oral fluids” before being sent
home. (Id.)
On August 21, 2019, petitioner had a physical therapy session. (Ex. P10, p. 7.)
She reported her pain as a 4/10 at its best and a 7/10 at its worst. (Id.) She further
reported some loss of motion, pain, and stiffness. (Id.) The physical therapist noted
that petitioner had shown signs of progress. (Id. at 8.) The physical therapist again
recommended that petitioner be seen two times a week for six weeks. (Id. at 9.)
Petitioner’s next physical therapy session was on August 23, 2019. (Id. at 5.)
She again reported her pain to be a 4/10 at its best and a 7/10 at its worst. (Id.) The
physical therapist reported some improvement and recommended continuing the
prescribed number of sessions. (Id. at 6.) Petitioner was seen for another physical
therapy session on September 19, 2019. (Id. at 2.) The physical therapist noted that
petitioner was “motivated and is able to perform exercises correctly with difficulty due to
pain.” (Id. at 3.) However, it was noted that petitioner “self-discharged” at this
appointment. (Id.)
Petitioner had two additional follow up appointments with Dr. Pak. (Ex. P9, pp. 3,
7.) The first one was on October 7, 2019. (Id. at 7.) During this appointment, Dr. Pak
noted that petitioner “continues to have improvement of range of motion although she
still has some pain.” (Id.) Petitioner reported she had been doing physical therapy
exercises at home and felt her strength was “improving.” (Id. at 8.) Dr. Pak
recommended a cortisone injection, which she received at this appointment, and formal
physical therapy. (Id. at 7, 9.) Petitioner’s last appointment with Dr. Pak was on
November 15, 2019. (Id. at 3.) She reported she was doing much better after the
injection, and Dr. Pak recommended that petitioner continue her physical therapy
sessions at home. (Id.)
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Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 5 of 16
b. As Reflected in Affidavits
i. Petitioner
Petitioner has submitted two affidavits in this case. (Ex. P2; Ex. P19.) In her first
affidavit, petitioner notes that she received a flu vaccine in her right arm on January 15,
2019. (Ex. P2, ¶¶ 1, 9.) Petitioner describes how she had “no orthopedic issues related
to her right shoulder” before receiving the flu vaccine. (Id. ¶ 3.) Petitioner explains that
“within hours of getting the flu shot, [her] right shoulder started to swell up like an egg at
the injection site.” (Id. ¶ 10.) Petitioner describes how the pain was worse than flu
shots that she had gotten in the past. (Id.) She notes that, over the next few days,
despite the swelling going down, her pain increased while her range of motion
decreased. (Id.) After the swelling decreased, she noticed the shot had been
administered too high in her shoulder. (Id. ¶ 11.)
Petitioner describes how her pain continued for months and progressively
worsened. (Id. ¶ 12.) She explains that she was “in the process of establishing a new
primary care physician.” (Id.) She also explains that, because she had Medicaid, it was
unlikely she would be able to see a specialist. (Id.) Therefore, petitioner claims that
she waited and hoped her pain would subside. (Id.)
Petitioner states that she went to the emergency room at Penrose Hospital on
April 25, 2019, due to her shoulder pain. (Id. ¶ 13.) She explains that she was given a
shot of Toradol and a sling. (Id.) Petitioner subsequently established a new primary
care physician, Dr. Walker, on May 31, 2019. (Id. ¶ 14.) During her first appointment,
petitioner explained her shoulder pain to Dr. Walker. (Id.) On June 25, 2019, petitioner
saw an orthopedist and received a cortisone injection; however, her pain returned and
her range of motion remained “severely limited.” (Id. ¶ 15.) She stated that she
returned to the orthopedist, who recommended surgery. (Id.) Petitioner had surgery on
August 14, 2019, and started physical therapy thereafter. (Id. ¶ 16.) Petitioner states
that she still lacks full mobility and range of motion. (Id. ¶¶ 7, 17.) She reports that she
still feels pain in her joint and when she reaches over her head or behind her back. (Id.)
Petitioner continues to perform physical therapy exercises at home. (Id.) She remains
concerned that she will always have these symptoms. (Id.)
Petitioner further describes the emotional impact that her injury has had on her
life. (Id. ¶¶ 17-20.) She explains how her pain, discomfort, and limited range of motion
affect her daily life and has limited her ability to groom herself, change, cook, clean, and
keep up around the house. (Id. ¶ 18.) She describes how she can no longer “do
hobbies [she] once loved such as doing crochet and caring for [her] service dog.” (Id. ¶
19.) She worries that she will never regain full function or be pain free. (Id. ¶ 20.)
In petitioner’s second affidavit, she reiterates the residual effects of her injury and
surgery. (Ex. P19, ¶¶ 4-5.) She describes how she still does not have full mobility or
range of motion and experiences continued pain. (Id.) She reiterates that she
continues to perform physical therapy exercises at home. (Id.) She also reiterates that
her injury has limited her ability to groom herself, change, cook, clean, upkeep the
house, and participate in hobbies she once loved. (Id. ¶¶ 6-7.) In addition, she states
5

Case 1:19-vv-01917-UNJ Document 65 Filed 12/08/23 Page 6 of 16
that she has trouble picking up her great granddaughter. (Id. ¶ 9.) Petitioner describes
her pain as a 4 out of 10 at best and a 7 out of 10 if she has done something to
aggravate her injury. (Id. ¶ 10.) She also quickly notes that she attempted to see her
orthopedic surgeon on January 23, 2023; however, this appointment was cancelled due
to a snowstorm and has not been rescheduled. (Id. ¶ 11.)
ii. Debora Hodge
Debora Hodge, petitioner’s roommate, also submitted an affidavit in this case.4
(Ex. P15.) In her affidavit, Ms. Hodge states that she could recall when petitioner
received her flu vaccination because she remembers petitioner complaining of shoulder
pain on the same day. (Id. ¶¶ 5-6.) She explains that petitioner “came home and
immediately complained . . . of shoulder pain at the site of the injection.” (Id. ¶ 6.) She
also notes that the area “around the site of the injection was already swollen to the size
of a golf ball.” (Id.)
Ms. Hodge explains that she “once worked as a medical assistant” and is familiar
with the “dangers of improperly administering a vaccine.” (Id. ¶ 7.) She states that she
was with petitioner when petitioner went to the emergency room and indicates that the
“doctor noted the swelling and the location of the injury and specifically asked if
[petitioner] had received a flu shot at the location of her injury.” (Id. ¶ 8.)
Ms. Hodge explains,
[Petitioner] is still learning to manage and cope with the pain in her right
shoulder due to the flu shot she received. She tried to go to physical therapy
to manage and alleviate her pain, but the physical therapy made her injury
hurt worse. Though [petitioner] is still learning how to live with her shoulder
injury, she still suffers from ongoing pain and discomfort.
(Id. ¶ 11.)
c. As Reflected in Testimony
During a fact-finding hearing held on Wednesday, August 18, 2021, petitioner
testified about her experience. Petitioner testified that before receiving her vaccine in
January 2019, she was involved in an automobile accident in 2003, during which she
hurt her left shoulder. (Tr. 8.) She had surgery on this shoulder in March of 2011 to
repair lasting effects from this injury. (Id. at 8-9.) After surgery, petitioner saw a
physical therapist. (Id.) Petitioner’s left shoulder problems were completely resolved by
about six months after her surgery. (Id. at 9.) In addition, she explained that she
suffers from PTSD, depression, and agoraphobia, and that she takes Zoloft and
Clonazepam. (Id. at 6-7.)
Petitioner testified that she had no additional problems with either of her
shoulders until she received her flu shot on January 15, 2019, at the Safeway Pharmacy
while she was grocery shopping. (Id. at 9-11.) Petitioner testified that she requested
4 Ms. Hodge passed away prior to the fact hearing held in this case. (ECF No. 31.)
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the vaccine in her right arm because she wanted to ensure the vaccine would not irritate
her left arm. (Id. at 11-12.) Petitioner testified that she received the flu vaccine high in
her shoulder. (Id. at 11.) She described how she immediately experienced pain and
her arm began to swell. (Id. at 12.) She testified that, on that day, her overall shoulder
pain was between a 4 and a 5 out of 10. (Id. at 12-13.) She said that she began to lose
range of motion three to four days after she received her vaccine. (Id. at 15.)
Petitioner testified that when she got home that day she discussed her shoulder
pain with her roommate, Deborah Hodge, who had been a medical assistant. (Id. at
13.) Petitioner explained that she and her roommate agreed that she should wait to
seek medical assistance until the pain became unbearable because she did not have
medical insurance at the time; she was hoping the pain would eventually subside. (Id.)
She testified that she tried applying a hot and cold pack, using a TENS machine, and
taking Tylenol in an attempt to relieve the pain. (Id. at 14.)
Petitioner described how, over the next few weeks, she began to lose range of
motion in her shoulder and her pain increased until she could barely use her arm. (Id.)
She stated that she considered seeing a doctor, but she did not have health insurance
because she “had just moved back from Arizona to Colorado, and [her] insurance had
not transferred.” (Id. at 15.) Petitioner stated that, by April of 2019, she could not take
the pain anymore. (Id. at 16.) By that point, she was in “severe and excruciating pain
every day” and her pain was no longer subsiding with Tylenol. (Id.)
On April 25, 2019, petitioner had her roommate take her to the emergency room
at Penrose Hospital. (Id. at 16-17.) She stated that the doctors “did x-rays and they
gave [her] a shot of Toradol.” (Id.) She testified that the Toradol helped, but her relief
did not last very long. (Id. at 18.) She testified that the physician in the emergency
room advised her “to see an orthopedist because [she] didn’t have full range motion in
that shoulder.” (Id.)
Petitioner testified that she told the emergency room physician about the
progression of her symptoms since her flu vaccination. (Id.) Petitioner acknowledged
that she had initially told emergency room personnel that she received the flu vaccine in
March 2019, instead of January 2019. (Id. at 18-19.) She explained:
I had run out of my medication for my psychiatric issues. And when that
happens, there’s something down in my brain and I become confused, I
have rapid speech, I don’t know what time of day it is or what day it is
sometimes. I just kind of live from hour to hour like that. I have extreme
paranoia from it. . . . [U]ntil I was able to see my doctor, I was unmedicated
and just kind of spinning there waiting. And no time—you know, you don’t
have any concept of time.
. . . You get days mixed up, months mixed up, even years sometimes.
But I did the best I could without being medicated . . . .
(Id. at 19.)
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Petitioner testified that she saw her primary care physician, Dr. Walker, on May
31, 2019. (Id. at 20.) She described how she told Dr. Walker “that [she] had had the flu
shot, and you know, the shoulder started blowing up on me.” (Id. at 21.) Dr. Walker
referred petitioner to Dr. Pak, an orthopedist. (Id. at 20, 22.)
Petitioner testified that she made an appointment to see Dr. Pak for the following
month. (Id. at 22.) At that appointment, Dr. Pak diagnosed petitioner with frozen
shoulder, which he recommended treating first with cortisone, and if that didn’t work,
then he recommended surgery. (Id. at 23.) Petitioner testified that, prior to her surgery,
she went to two or three physical therapy appointments, explaining: “We tried that. It
didn’t work.” (Id. at 25.) Petitioner stated that the cortisone injection did not relieve her
pain “whatsoever.” (Id. at 27.) She further explained that her pain eventually got so bad
that she elected to have surgery in August of 2019. (Id.)
Petitioner testified that her surgery went well, except she had to return to the
emergency room within 48 hours due to an adverse reaction to the pain pump she was
given. (Id. at 28.) She reported that she attended a few physical therapy sessions after
her surgery. (Id.) However, she explained that she “was suffering from the
agoraphobia and going out of the house all these times to doctor’s appointments was
not helping it.” (Id.) She stated that she continued to do her physical therapist at home
with the help of her roommate who “was a physical therapist with Dr. Mark Holmstrom
up in Denver for years.” (Id. at 29.) She testified that she also received a second
cortisone injection after her surgery. (Id. at 30.)
During the hearing, petitioner testified to her current condition. (Id. at 30.) She
described how she still experiences weakness and a limited range of motion. (Id. at 28,
30.) She cannot perform tasks, such as braiding her hair, and has trouble picking up
her great granddaughter. (Id. at 30.)
III. Party Contentions
a. Petitioner’s Motion
Petitioner requests $125,000.00 for actual pain and suffering. (ECF No. 55, p.
1.) In support of this request, petitioner encourages the Court to consider both
petitioner’s medical records and her testimony as the medical records only show a
snapshot in time and her testimonial evidence can be used to supplement this record.
(Id. at 14-21 (citing Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993); Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991),
aff’d, 968 F.2d 1226 (Fed. Cir. 1992); Dillenbeck v. Sec’y of Health & Human Servs.,
No. 17-428V, 2019 WL 4072069, at *3 (Fed. Cl. Spec. Mstr. July 29, 2019)).) Petitioner
argues that the “totality of the evidence in the record” supports her “position that she be
entitled to $125,000.00 for her pain and suffering relating to her SIRVA surgery claim.”
(Id. at 27.)
Petitioner also argues that her requested award is reasonable in light of the facts
of this case and consistent with prior SIRVA awards. (Id.) Specifically, petitioner cites
the following reasoned decisions as reflecting comparable facts: Collado v. Secretary of
Health & Human Services, No. 17-0225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June
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6, 2018) (awarding $120,000.00 for actual pain and suffering); Dobbins v. Secretary of
Health & Human Services, No. 16-0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug.
15, 2018) (awarding $125,000.00 for actual pain and suffering); Wilt v. Secretary of
Health & Human Services, No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb.
24, 2020) (awarding $110,000.00 for actual pain and suffering); Vaccaro v. Secretary of
Health & Human Services, No. 19-1883V, 2022 WL 662550 (Fed. Cl. Spec. Mstr. Feb.
2, 2022) (awarding $110,000.00 for actual pain and suffering); Rafferty v. Secretary of
Health & Human Services, No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec. Mstr. May
21, 2020) (awarding $127,500.00 for actual pain and suffering). (Id. at 23-27.)
Petitioner notes that the petitioners in the cited cases underwent surgery and
experienced complete recovery after treatment. (Id.) She contends that her pain has
continued after surgery, warranting a higher award in this case. (Id. at 33.)
b. Respondent’s Response
Respondent proposes an award of $61,500.00 for petitioner’s actual pain and
suffering. (ECF No. 56, p. 1.) Respondent specifically points out that “petitioner did not
seek medical treatment for her right-sided SIRVA until April 25, 2019, more than three
months after her receipt of the flu vaccination on January 15, 2019.” (Id. at 10 (citing
Ex. 13, p. 10).) Respondent notes that a delay in seeking treatment is a factor that
should be considered when evaluating “severity of petitioner’s SIRVA from a damages
perspective” and “the fact that petitioner underwent surgery on her right shoulder does
not, standing alone, warrant a pain and suffering award on the higher end of the
statutory range.” (Id. at 11.)
Respondent describes petitioner’s treatment as “limited in duration,” noting that
her treatment consisted of standard modalities for SIRVA, lasted approximately six and
a half months, and resulted in an improvement of her injury. (Id.) Respondent explains
that petitioner’s treatment included two emergency department visits; a primary care
visit; four physical therapy sessions, two before surgery and two after surgery; and two
steroid injections, one before surgery and one after surgery. (Id. at 11-12 (citing Ex. 3,
pp. 47-89; Ex 4, pp. 52-72; Ex 5, pp. 26, 43, 41-61; Ex. 6, pp. 3-13; Ex. 9, pp. 3-5, 7-10;
Ex. 10, pp. 5-9; Ex. 12, p. 4; Ex 13, pp. 6-32).)
Respondent contends that the prior SIRVA awards cited by petitioner are
distinguishable. (Id. at 13-19.) Specifically, respondent explains that, “unlike the
petitioners in Collado, Dobbins, Wilt, and Rafferty, the instant petitioner did not undergo
an MRI.” (Id. at 16.) Additionally, “petitioner participated in fewer physical therapy
sessions than the petitioners in Collado, Dobbins, Wilt, Vaccaro, and Rafferty.” (Id.)
Specifically, respondent notes “the instant petitioner only participated in four physical
therapy sessions, two pre-surgery and two post-surgery, while the petitioner’s in
Dobbins, Wilt, Vaccaro, and Rafferty participated in multiple months of physical therapy,
ranging in total from twenty to fifty sessions.” (Id.) Respondent further argues that
“petitioners in Collado, Dobbins, Wilt, and Rafferty initially sought treatment for their
shoulder injuries within days to weeks” of their vaccinations. (Id.) Although respondent
acknowledges that the Vaccaro petitioner had a similar delay in seeking treatment to the
petitioner in this case, respondent distinguishes this case by noting that “the petitioner in
Vaccaro had more extensive recovery period following surgery, involving participation in
twenty-six more physical therapy sessions than the instant petitioner.” (Id.) Finally,
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respondent contends that there were “extenuating circumstances” in Dobbins and
Rafferty that justified “a higher award than other comparable cases.” (Id.) Respondent
describes how the Dobbins petitioner had increased distress and pain due to caring for
her terminally ill mother and the Rafferty petitioner was the primary caregiver of two
young sons. (Id. at 16-17.) Respondent acknowledges petitioner’s claim that her injury
has made it difficult for her to pick up her great-granddaughter; however, respondent
notes that “it does not appear that petitioner is the primary caregiver of her great-
granddaughter, and it does not appear that petitioner faced similar difficulties during her
course of treatment as the petitioners in Dobbins and Rafferty did.” (Id. at 17.)
Respondent cites two cases that he argues are “more instructive” to the facts of
this case. (Id.) Specifically, respondent cites Shelton v. Secretary of Health & Human
Services, No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021)
(awarding petitioner $97,500.00 for actual pain and suffering), and Hunt v. Secretary of
Health & Human Services, No 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June
16, 2022) (awarding petitioner $95,000.00 for actual pain and suffering). Respondent
contends that, similar to the petitioner in this case, the petitioners in Shelton and Hunt
also had “significant gaps” in their treatment. (Id. at 18.) However, respondent argues
that the petitioner in this case is entitled to less than the amounts awarded to the
petitioners in Shelton and Hunt because those “petitioners’ courses of treatment were
more extensive than that of the instant petitioner.” (Id. at 19.)
c. Petitioner’s Reply
Petitioner raises two challenges to respondent’s position: (1) “the three month
delay between vaccination and [p]etitioner’s reporting her injury to a medical provider is
rationally explained and does not present evidence of a mild injury”, and (2)
“[r]espondent’s proffered cases are not comparable to [p]etitioner’s case.” (ECF No. 57,
pp. 3-6.)
First, petitioner explains that respondent ignored the rationale for petitioner’s
delay in treatment. (Id. at 3.) During the fact hearing, petitioner testified that her delay
in treatment was a result of her lack of medical insurance during her move from Arizona
to Colorado. (Id.) Petitioner contends that “a three-month gap between onset and
medical visit is not a delay and even if it was considered to be one, there is a valid and
logical explanation based on lack of health insurance for a destitute petitioner who could
not afford out of pocket medical expenses to visit the doctor sooner.” (Id.) Petitioner
argues that this delay should have no impact on her pain and suffering award. (Id.)
Second, petitioner contends that the prior SIRVA awards cited by respondent are
distinguishable and reiterates her explanation of the cases cited in her original brief. (Id.
at 4-10.) She further cites two cases decided by the undersigned: Heiner v. Secretary
of Health & Human Services, No. 19-1339V, 2022 WL 4457901 (Fed. Cl. Spec. Mstr.
Aug. 29, 2022) (awarding $60,000.00 for actual pain and suffering), and Lang v.
Secretary of Health & Human Services, No. 17-995V, 2022 WL 4295445 (Fed. Cl. Spec.
Mstr. Aug. 24, 2022) (awarding $195,000.00 for actual pain and suffering). (Id. at 10-
12.) Petitioner argues that the petitioner in this case received more aggressive
treatment than the petitioner in Heiner, but less than the petitioner in Lang. (Id. at 13.)
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IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include compensation
“[f]or actual and projected pain and suffering and emotional distress from the vaccine-
related injury, an award not to exceed $250,000.” § 300aa-15(a)(4). Additionally, a
petitioner may recover any unreimbursable expenses related to her injury. § 300aa-
15(a)(1)(B). Finally, petitioners who have had their earning capacity adversely impacted
due to their vaccine injury may receive “compensation for actual and anticipated loss of
earnings determined in accordance with generally recognized actuarial principles and
projections.” § 300aa-15(a)(3)(A). 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).
In this case, petitioner only requests compensation for actual pain and suffering. (See
ECF Nos. 55, 57.)
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) (explaining that
“[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”). In general, factors to be
considered when determining an award for pain and suffering include: 1) awareness of
the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL
2448125, at *9 (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V,
1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on
other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
Special masters may also consider prior awards when determining what
constitutes an appropriate award of damages. 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”);
Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(explaining 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, decisions regarding prior awards, although potentially
persuasive, are not binding. See Nance v. Sec’y of Health & Human Servs., No. 06-
0730V, 2010 WL 3291896, at *8 (Fed. Cl. Spec. Mstr. July 30, 2010); see also Hanlon
v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are
neither bound by their own decisions nor by cases from the Court of Federal Claims,
except, of course, in the same case on remand.”), aff’d, 191 F.3d 1344 (Fed. Cir. 1999).
Notably, the majority of SIRVA cases resolve within the SPU, which is overseen
by the Chief Special Master. In a recent decision awarding damages, the Chief Special
Master explained that, as of July 1, 2023, 3,211 SIRVA cases had been compensated
within the SPU since its inception in July 2014. See Mussehl v. Sec’y of Health &
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Human Servs., No. 21-0031V, 2023 WL 5203102, at *2 (Fed. Cl. Spec. Mstr. July 12,
2023). Among those cases, only 173 were awarded compensation based on a
reasoned decision of the special master. Id. Among the 173 decisions, the awards for
actual pain and suffering ranged from $40,757.00 to $265,034.87, with a median award
of $92,299.83. Id. at *3. Additionally, I have issued three prior reasoned decision
awarding damages in a SIRVA cases. See Lang v. Sec’y of Health & Human Servs.,
No. 17-995V, 2022 WL 3681275 (Fed. Cl. Spec. Mstr. July 25, 2022); Heiner v. Sec’y of
Health & Human Servs., No. 19-1339V, 2022 WL 4457901 (Fed. Cl. Spec. Mstr. Aug.
29, 2022); Ratzlaff v. Sec’y of Health & Human Servs., No. 18-1017V, 2023 WL
4072909 (Fed. Cl. Spec. Mstr. May 24, 2023).
Unsurprisingly, stipulated and proffered awards cover a much larger range—from
$5,000.00 for the lowest stipulated amount to $1,845,047.00 for the highest proffered
award. Mussehl, 2023 WL 5203102, at *3. Of course, these amounts are not limited to
pain and suffering awards. Moreover, as the Chief Special Master observed, “even
though any such informally-resolved case must still be approved by a special master,
these determinations do not provide the same judicial guidance or insight obtained from
a reasoned decision.” Id. at *2 n.8.
V. Analysis
I have reviewed previous SIRVA awards, the arguments presented by the
parties, and the totality of the evidentiary record. As noted above, the primary
considerations informing pain and suffering in SIRVA cases is the severity and duration
of the shoulder pain. Numerous aspects of a petitioner’s medical history potentially
speak to these issues, including the total duration of the petitioner’s pain, the total
duration of petitioner’s reduced range of motion, the length of time over which the
petitioner actively treated the condition, the duration and outcome of physical therapy,
the modalities of treatment (e.g. steroid injections, surgeries, etc.), the severity of the
MRI or surgical findings, subjective reports of pain levels, and the ultimate prognosis.
Petitioner’s medical records suggest that her treatment history, while shorter than
has been seen in many other cases, was serious enough to warrant surgery. Petitioner
ultimately waited three months before seeing a physician about her shoulder pain. (Ex.
P16, p. 4; Ex. P13, p. 9.) However, when petitioner did seek care, her symptoms were
serious enough that she went to two emergency rooms in one day, seeking relief for her
pain. (Id.; Ex. P3, p. 48-49.) She had limited range of motion and described her pain as
a 10/10. (Ex, P3, p. 51.) Over the course of her treatment, she received two
therapeutic injections, attended four physical therapy sessions and four appointments
with her orthopedic surgeon, and underwent surgery, during which her orthopedic
surgeon noted a “fairly tight capsule throughout along with what appears to be a marked
synovitis throughout the shoulder joint” and “[n]o rotator cuff [tear] was noted intra-
articular or extra-articular in the subacromial space.”5 (Id.; Ex. P5, pp. 24, 41, 43; Ex.
P6, pp. 3, 6; Ex. P7, p. 2, 35; Ex. P9, pp. 3, 7, 9; Ex. P10, pp. 2, 7; Ex. P14, p. 4.)
5 Respondent noted the lack of any MRI in this case; however, this is less significant given the availability
of surgical findings.
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Petitioner underwent capsular release, subacromial decompression, and acromioplasty.
(Ex. P12, p. 4.) The final two records that mention petitioner’s shoulder injury are from
encounters with Dr. Pak. The first one was on October 7, 2019. (Ex. P9, p. 7.) At that
time, petitioner still described some pain, and she received the second cortisone
injection to treat her symptoms. (Id.) This evidence supports a finding that petitioner’s
pain persisted for at least some time after surgery. However, by the time of her second
appointment with Dr. Pak on November 15, 2019, it was noted that petitioner’s “[p]ain is
well managed” and her “[p]rognosis is good.” (Id. at 3.) Although petitioner asserts
ongoing sequela, this effectively marks the conclusion of her medical treatment for her
condition. Therefore, based on the record in this case, I find that petitioner’s total
duration of pain and suffering throughout her treatment history from vaccination to near,
albeit not complete, recovery is about 10 months.
As respondent stresses, petitioner waited approximately three months before
seeking treatment. (Ex. P16, p. 4; Ex. P13, p. 9.) Petitioner testified that she was trying
to wait for her medical insurance to transfer from Arizona to Colorado before she went
to see a physician. (Tr. 15.) In spite of petitioner’s delay in seeking treatment, I found
that her onset did occur within 48 hours of receiving her flu vaccine. (ECF No. 42, p. 1.)
However, I also indicated that petitioner’s lack of insurance coverage did not completely
explain why she did not seek treatment until April 25, 2019. (Id. at 12.) I also explained
that several of her treatment records documented reports that petitioner’s symptoms
worsened in March of 2019. (Id.) Prior cases have noted that a delay in seeking
treatment, even while not necessarily informative regarding onset and entitlement, may
nonetheless still be relevant to assessing the severity of pain and suffering. See
Eshraghi v. Sec’y of Health & Human Servs., No. 19-0039V, 2021 WL 2809590, at *3
(Fed. Cl. Spec. Mstr. June 4, 2021); Marino v. Sec’y of Health & Human Servs., No. 16-
0622V, 2018 WL 2224736, at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2018). The insurance
issue notwithstanding, petitioner’s delay in seeking treatment does suggest that
petitioner’s pain was less severe during the three months she delayed treatment.
Petitioner herself explained that her pain increased over time and that she ultimately
sought treatment when she felt unable to cope with the pain. (Ex. P2, ¶ 12; Tr. 13.)
Therefore, petitioner’s delay in seeking medical treatment will be partly informative of
the award in this case, though this factor carries less overall significance than
respondent seems to urge.
I have also reviewed the cases submitted by the parties in this case. Petitioner
and respondent referenced a total of nine cases (petitioner cites seven and respondent
two). Petitioner urges direct comparison to several cases with awards ranging from
$110,000.00 to $127,500.00, and respondent cites two cases awarding $95,000.00 and
$97,500.00, though arguing for a substantially lower award. (ECF Nos. 55-57.) Given
that pain and suffering is inherently subjective and given the number of variables
involved in assessing each petitioner’s medical history, direct comparison to other cases
is difficult. While I reviewed all the cases presented by both petitioner and respondent, I
found three to be the most comparable to this case, one cited by petitioner and the two
cited by respondent. These three cases reflect a narrower range of awards between
$95,000.00 to $110,000.00.
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In the first case, Vaccaro, the petitioner waited about three months before
seeking medical treatment. 2022 WL 662550, at *3. The petitioner saw an orthopedist
who diagnosed her with adhesive capsulitis. Id. He gave her a subacromial steroid
injection and recommended that she do at-home exercises and treat with ice and anti-
inflammatory drugs as needed. Id. The petitioner visited her orthopedist two more
times and reported pain ranging from 6 out of 10 to 8 out of10. Id. Eventually, the
petitioner underwent arthroscopic surgery, during which the petitioner’s orthopedist
discovered extensive adhesions and scar tissue that confirmed the diagnosis of
adhesive capsulitis, tendonitis, and a torn labrum. Id. After her surgery, the petitioner
underwent physical therapy for three months before she was finally discharged. Id. at
*3-4. During that time, she saw her orthopedist five additional times. Id. at *4. At her
last appointment, the petitioner reported that she had made a full recovery and
experienced little to no pain. Id. Although the Vaccaro petitioner filed affidavits
“suggesting she still suffers residual pain,” the Chief Special Master noted that no
medical records suggesting additional treatment had been filed. Id. Therefore, based
on the records, the Chief Special Master determined that there was “objective, medical
record evidence to support a finding that Petitioner’s symptoms continued for nearly
eight months.” Id. at *5. He noted that, “[a]lthough 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.” Id. The Chief Special Master relied on this to conclude that,
while petitioner’s “delay in treatment does suggest a lack of immediate severity (and is a
relevant consideration herein),” the treatment “course thereafter underscores that the
injury was serious enough to warrant persistent medical attention.” Id. The Chief
Special Master also determined that the Vaccaro petitioner had not sought medical
attention for her injury in nearly three years and that her final records suggested she
regained full function and experienced good recovery from her injury. Id. The Vaccaro
petitioner was ultimately awarded $110,000.00 in actual pain and suffering. Id. at *6.
In the second case, Shelton, the petitioner delayed seeking treatment for five
months following her vaccination. 2021 WL 2550093, at *5. The petitioner’s treatment
included an initial three-month course of physical therapy, three steroid injections, an
MRI, and eventually extensive right shoulder surgery and post-operative physical
therapy. Id. at *7-8. Her “post-operative diagnoses included: 1) low-grade partial
articular sided supraspinatus tear, 2) synovitis in the rotator interval with adhesions, 3)
impingement syndrome with anterolateral bone spur, 4) AC arthrosis, and 5) bicipital
tendinopathy.” Id. at *8. The Shelton petitioner experienced pain levels that fluctuated
from 2 out of 10 to 8 out of 10. Id. at *7. The Chief Special Master offered a
comparison to two prior cases when determining his ultimate award. Id. at *7-8. In
particular, he explained that Dirksen v. Secretary of Health & Human Services, No. 16-
1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018), was comparable but
that the Shelton petitioner’s multiple steroid injections and surgical procedure required a
higher award. Id. As such, while the Dirksen petitioner was awarded $85,000.00 for
actual pain and suffering, the Chief Special Master awarded the Shelton petitioner
$97,500.00. Id.
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In the final case, Hunt, the Chief Special Master determined that the petitioner
“suffered a mild-to-moderate SIRVA for approximately fifteen months, with periods of
little-to-no pain.” 2022 WL 2826662, at *8. The petitioner’s treatment included four
cortisone injections, two before surgery and two after surgery, that relieved her pain for
quite some time; physical therapy for approximately two months before surgery and two
months after surgery; an MRI; and eventually surgery, which involved limited
debridement, subacromial decompression, partial acromioplasty, and coracoacromial
release of the left side. Id. at *2-4, 9. Throughout her course of treatment, the Hunt
petitioner reported pain ranging between 1 out of 10 and 5 out of 10. Id. The Chief
Special Master ultimately determined the course of treatment in Hunt was most similar
to Shelton where, as explained above, the petitioner received several cortisone
injections and underwent numerous physical therapy sessions, an MRI, and surgery.
Id. The Chief Special Master awarded the Hunt petitioner $95,000.00 for pain and
suffering. Id. at *10.
Respondent has not provided a satisfying explanation for why petitioner’s award
should be $30,000.00 less than the cases he himself cites as comparable. Hunt and
Shelton, which awarded $95,000.00 and $97,500.00, respectively, appear to be the
lowest reasoned SIRVA awards to date for cases involving surgery. In this case,
respondent is suggesting a lower award than even Dirksen, which was a non-surgical
case that the Chief Special Master specifically distinguished in Shelton due to the fact
that the petitioner in Shelton underwent surgery and received multiple steroid injections,
just like this petitioner. Shelton, 2021 WL 2550093, at *8. Petitioner’s delay in
treatment, her less intensive treatment pre-surgery, overall duration of her treatment
history, and improvement in her symptoms post-surgery, all deserve consideration when
determining the amount of petitioner’s award. However, even accounting for those
factors, it is still not clear how respondent arrives at an amount that is less than two-
thirds of the amount awarded to similarly situated petitioners.
Respondent argues that this petitioner’s treatment history includes less intensive
physical therapy and fewer cortisone injections than that of the petitioners in Hunt and
Shelton. (ECF No. 56, p. 19.) However, it is also relevant that, once petitioner’s injury
came to medical attention, she reported greater pain than the pain described by the
petitioners in Shelton and Hunt. At its worst, petitioner described her pain as a 10 out of
10, and at its best, she described her pain as a 4 out of 10. (Ex. P5, p. 26; Ex. P10, p.
7.) In fact, petitioner’s medical records reflect that the relative shortness of petitioner’s
treatment history was due in part to her opting for surgery as a “more aggressive” option
due to her pain. (Ex. P5, p. 26.) Unlike in Hunt, where the petitioner had a longer
overall period of treatment but also had periods of little to no pain, once petitioner
sought care, as in Vacarro, she sought care consistently and complained of symptoms
persistently. In her most recent medical record, petitioner did not express complete
relief from pain, nor did she regain complete range of motion. (Ex. P9, p. 7.) However,
the lack of medical treatment since 2019 does suggest that petitioner experienced a
substantial recovery. See Vaccaro, 2022 WL 662550, at *5. Although there are
obviously some differences, I do not see how this petitioner’s history is substantially
different from the presentations in Shelton and Hunt.
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Respondent also points to petitioner’s delay in treatment as a reason to decrease
petitioner’s damages award. (ECF No. 56, p. 16.) As noted above, the treatment delay
in the current case is relevant to the award analysis; however, it does not counsel a
deviation from the above-discussed cases. In both Shelton and Vaccaro, the petitioners
delayed their treatment five months and three months, respectively. Shelton, 2021 WL
2550093, at *7; Vaccaro, 2022 WL 662550, at *3. The Court considered petitioners’
delay in treatment when determining their ultimate awards. Shelton, 2021 WL 2550093,
at *7; Vaccaro, 2022 WL 662550, at *3.
In light of all of the above, I conclude that $97,500.00 represents a reasonable
award for petitioner’s pain and suffering.
VI. Conclusion
After weighing the evidence of record within the context of this Program, I find
that $97,500.00 represents a reasonable and appropriate award for petitioner’s actual
pain and suffering. I thus award petitioner a lump sum payment of $97,500.00,
representing compensation for actual pain and suffering in the form of a check
payable to petitioner. This amount represents compensation for all damages available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this decision. 6
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
6 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.
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