Randy Nolen v. HHS - Tdap, right-sided shoulder injury related to vaccine administration (SIRVA) (2023)

On December 26, 2019, Randy Nolen filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he developed a right-sided shoulder injury related to vaccine administration (SIRVA) following a tetanus, diphtheria, and acellular pertussis (Tdap) vaccination he received on October 5, 2018. Mr.

Nolen was 64 years old at the time of vaccination. The respondent filed a report on May 17, 2021, conceding that Mr.

Nolen met the criteria for a presumed SIRVA as defined by the Vaccine Injury Table and that compensation was appropriate. A ruling on entitlement was issued on June 11, 2021, finding Mr.

Nolen entitled to compensation, and the matter proceeded to the damages phase. The parties were unable to resolve damages informally, leading to a decision by Special Master Herbrina Sanders on April 14, 2023.

Mr. Nolen's pre-vaccination medical history included surgery for malignant melanoma in 2000, cervical spine surgery in 2011, and management of chronic headaches with a neurostimulator since 2008, along with prescriptions for etodolac, trazodone, aspirin, and lorazepam.

Following the Tdap vaccine administered in his right deltoid, Mr. Nolen reported right arm pain and decreased range of motion eleven days later, on October 16, 2018.

He was treated with a steroid pack. By October 22, 2018, his pain limited his arm movement, and steroid treatment provided minimal relief.

An emergency room visit on October 26, 2018, noted new pain in his right wrist, a twinge in his arm, and facial numbness, with an X-ray showing degeneration in the right acromioclavicular joint and a CT scan showing cervical spine osteoarthritis. An EMG/NCS on November 1, 2018, revealed no abnormalities.

He consulted an orthopedist on November 12, 2018, reporting occasional right ulnar numbness and a brief episode of right-sided facial numbness, with a diagnosis of an unspecified shoulder injury and a second steroid injection. A neurologist on November 27, 2018, could not conclusively determine the cause of his shoulder injury, noting no denervation in tested arm muscles but also that an MRI could not be performed due to his nerve stimulator.

He saw an ENT specialist on December 14, 2018, for a neck mass noticed around October 23, 2018, followed by a brief episode of right-sided facial numbness. His shoulder symptoms persisted, leading to surgery on February 13, 2019, which included arthroscopic rotator cuff repair, biceps tenodesis, subacromial decompression with acromioplasty, and axillary nerve decompression.

Post-surgery, he reported diminished pain, swelling, and tingling. He underwent twenty-two physical therapy sessions over three months, with discharge in May 2019 noting a 39% perceived disability and pain levels of 3/10 to 6/10 with overuse.

A follow-up with his orthopedist on July 1, 2019, showed full range of motion and strength, though he experienced intermittent numbness with certain movements. Mr.

Nolen filed a functional capacity evaluation in April 2021, performed by Steve Allison, D.P.T., which diagnosed chronic right shoulder and neck pain, intermittent right upper extremity cervicobrachial radiculitis, and a right shoulder rotator cuff tear, axillary nerve neuritis, and biceps tendon partial tear. The FCE indicated occasional limitation reaching overhead on the right, moderate range of motion loss, and a loss of work capacity for house repair work, with a poor prognosis for significant improvement.

A forensic accountant, Chad M. Garland, estimated Mr.

Nolen's total lost compensation to be between $132,761.20 and $189,229.58. Mr.

Nolen sought compensation for pain and suffering and lost wages. Respondent argued against significant awards for pain and suffering, citing Mr.

Nolen's pre-existing conditions and employer accommodations, and disputed the lost wages claim due to insufficient evidence. Special Master Sanders awarded Mr.

Nolen $125,000.00 for actual pain and suffering and $1,323.78 for unreimbursed expenses, totaling $126,323.78. The claim for lost wages was denied due to a lack of sufficient supporting evidence, as the evidence showed a decline in independent contracting work that correlated with his employment at JL Builders, which began before his vaccination, and his employer at JL Builders had made accommodations allowing him to continue working.

The Special Master did not consider the neck injury for damages, as the concession was limited to SIRVA and its sequelae, and causation for the neck injury was not established in the damages phase. Petitioner was represented by Frank Mell Ferrell, and Respondent was represented by Sarah Black Rifkin.