VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00093
Package ID: USCOURTS-cofc-1_20-vv-00093
Petitioner: Jody Bidlack
Filed: 2020-01-28
Decided: 2023-04-11
Vaccine: influenza
Vaccination date: 2017-12-30
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 101811

AI-assisted case summary:
Jody Bidlack filed a petition for compensation under the National Vaccine Injury Compensation Program on January 28, 2020, alleging that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccine administered on December 30, 2017. The case was assigned to the Special Processing Unit. Petitioner was 55 years old at the time of vaccination. She reported experiencing pain and stiffness in her right shoulder the day after the vaccination. She contacted her doctor in January 2018, who advised her to wait and see if symptoms worsened. Several weeks after vaccination, in January 2018, Petitioner fell on ice, landing on her right hip, but stated her shoulder was not impacted. On February 7, 2018, she presented to her primary care physician, Dr. Mark L. Mahloch, who noted pain immediately after the flu shot and worsening symptoms after the fall. Dr. Mahloch diagnosed a rotator cuff injury and likely a first-degree AC separation, prescribing a Medrol dosepak and referring her to physical therapy. Petitioner did not begin physical therapy at that time. On May 29, 2018, she followed up with Dr. Patrick J. McCarville, reporting that her shoulder pain began within 24 hours of immunization and had not improved. Dr. McCarville diagnosed immunization-induced adhesive capsulitis and referred her to physical therapy. Petitioner began physical therapy on June 6, 2018, reporting constant pain that increased with movement. After five sessions through June 18, 2018, her shoulder motion did not increase much and pain persisted. On June 20, 2018, Dr. McCarville referred her to an orthopedist. She presented to orthopedist Dr. Hsueh-Yu Wesley Cheng on June 25, 2018, reporting pain since her flu shot and no relief from previous treatments. Dr. Cheng assessed adhesive capsulitis and performed a manipulation under anesthesia on July 11, 2018. Petitioner underwent 15 post-surgery physical therapy treatments, but was discharged due to exhausted insurance benefits. She continued to experience pain, requiring two cortisone injections in January 2019. Petitioner stated that over two years later, she continued to have pain and reduced strength, was unable to work on her farm without assistance, and had difficulty sleeping. Respondent argued that a shoulder sprain from the fall explained her symptoms. Chief Special Master Brian H. Corcoran found that Petitioner met all the criteria for a Table SIRVA claim. He noted that while Dr. Mahloch initially assessed a possible AC separation, subsequent treating physicians did not mention a shoulder separation or sprain, and consistently linked Petitioner's symptoms to the vaccination. Petitioner's and her husband's testimony was consistent with the medical records, describing the fall as minor and primarily affecting her hip, and noting shoulder pain prior to the fall. The Special Master found that the evidence preponderated in favor of a vaccine-related SIRVA. Petitioner was awarded $101,811.07, consisting of $100,000.00 for pain and suffering, $1,220.63 for unreimbursed expenses, and $590.44 for lost wages. Petitioner was represented by Ronald Craig Homer of Conway, Homer, P.C., and Respondent was represented by Zoe Wade of the U.S. Department of Justice.

Theory of causation field:
Jody Bidlack, a 55-year-old adult, received an influenza vaccine on December 30, 2017. Within 24 hours, she developed pain and stiffness in her right shoulder, consistent with the onset criteria for SIRVA. The Special Master found that Petitioner met all four criteria for a Table SIRVA: no prior condition explaining the symptoms, onset of pain within 48 hours of vaccination, pain and limited range of motion limited to the vaccinated shoulder, and no other condition or abnormality explaining the symptoms. Respondent argued that a shoulder sprain from a fall three weeks after vaccination explained the symptoms, citing an initial assessment by Dr. Mahloch of a possible AC joint separation. However, the Special Master found that the preponderance of the evidence, including subsequent medical records and Petitioner's testimony, linked the symptoms to the vaccination and not the fall. The Special Master found that Petitioner established entitlement to compensation for an on-Table SIRVA. An award of $101,811.07 was granted, including $100,000.00 for pain and suffering, $1,220.63 for unreimbursed expenses, and $590.44 for lost wages. Chief Special Master Brian H. Corcoran issued the decision on April 11, 2023. Petitioner was represented by Ronald Craig Homer, and Respondent by Zoe Wade.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00093-0
Date issued/filed: 2023-04-11
Pages: 14
Docket text: PUBLIC DECISION (Originally filed: 03/06/2023) regarding 44 Ruling on Entitlement, DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. (Main Document 48 replaced on 4/13/2023 to attach corrected PDF) (ypb).
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Case 1:20-vv-00093-UNJ Document 48 Filed 04/11/23 Page 1 of 14
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0093V
UNPUBLISHED
JODY BIDLACK, Chief Special Master Corcoran
Petitioner, Filed: March 6, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Table
HUMAN SERVICES, Injury; Decision Awarding Damages;
Pain and Suffering; Influenza
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On January 28, 2020, Jody Bidlack filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on
December 30, 2017. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters (the “SPU”).
For the reasons described below, I find that Petitioner is entitled compensation,
and I award damages in the amount $101,811.07, representing $100,000.00 in actual
pain and suffering, $1,220.63 in unreimbursed expenses, and $590.44 in lost wages.
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it
contains a reasoned explanation for my determination. 44 U.S.C. § 3501 note (2012) (Federal Management
and Promotion of Electronic Government Services). This means the Decision will be available to anyone
with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and
move to redact medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact
such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00093-UNJ Document 48 Filed 04/11/23 Page 2 of 14
I. Relevant Procedural History
As noted above, the case was initiated in January 2020. ECF No. 1. After
Respondent completed his review of the records, the parties began settlement
discussions in June 2021. ECF No. 27. But Petitioner filed a status report on November
12, 2021, informing me that the parties had reached an impasse in their negotiations.
ECF No. 37.
Petitioner subsequently filed a Motion for Ruling on the Record and Memorandum
in Support of Damages (“Mot.”) on January 14, 2022. ECF No. 40. Petitioner argues that
she has established entitlement to compensation for an on-Table SIRVA claim, or in the
alternative, a causation-in-fact claim, and requests an award of $105,000.00 in
past/actual pain and suffering; $1,220.63 in past unreimbursed expenses; and $3,782.40
in lost wages. Id. Respondent filed his Rule 4(c) Report and Response to Petitioner’s
Motion to Ruling on the Record (“Resp.”) on March 14, 2022. ECF No. 41. Respondent
maintains that Petitioner has failed to establish entitlement to compensation, because
Petitioner “has not established the absence of any other condition or abnormality that
would explain Petitioner’s symptoms.” Resp. at 8. In the event I find Petitioner entitled
compensation, however, Respondent recommends that I award a lower pain and
suffering sum. Id. at 13. Respondent defers to my review of Petitioner’s requests
regarding lost wages and unreimbursed expenses. Id.
II. Fact History
Petitioner was 55 years old when she received an influenza vaccination in her right
deltoid on December 30, 2017. Ex. 1 at 2. Petitioner recalled experiencing pain and
stiffness in her shoulder the next day. Ex. 15 at ¶2. She alleges that she thereafter called
her doctor in January 20183 about her shoulder pain, but was told to “give it more time
and call if [her] symptoms got worse.” Id. at ¶3. Also in January 2018, “several weeks
after her vaccination,” Petitioner fell on ice, landing on her right hip. Ex. 16 at ¶7; Ex. 15
at ¶4. Both Petitioner and her husband stated that her shoulder was not impacted in the
fall. Id. Petitioner’s husband “specifically recalled” that Petitioner had woken him up and
had not done chores on their farm due to her shoulder pain before her fall. Ex. 16 at ¶7.
On February 7, 2018, Petitioner presented to her primary care practice, seeing Dr.
Mark L. Mahloch about her complaints of “1.5 months of right shoulder pain.” Ex. 2 at 61.
Dr. Mahloch noted that Petitioner had “pain right after her flu shot” and then “3 weeks
later she did take a fall, mainly landing on her right hip but shoulder has been
3 Petitioner filed Verizon phone records showing a call she made on January 8, 2018 (nine days after her
vaccination) to the phone number (402) 359-2277, which is registered to Methodist Physicians Clinic in
Valley, NE. See Ex. 17 at 2.
2

Case 1:20-vv-00093-UNJ Document 48 Filed 04/11/23 Page 3 of 14
progressively worsening since then.” Id. On exam, Dr. Mahloch noted that Petitioner’s AC
joint was “exquisitely tender,” her internal rotation was reduced, and her supraspinatus
was “noticeably weak.” Id. Dr. Mahloch reviewed an xray report regarding Petitioner’s
right shoulder, noting “AC joint may have a few mm of separation making it a first-degree
separation with some hazy inflammation findings just above it.” Id. He diagnosed a
“rotator cuff injury and likely a first-degree AC separation,” prescribed a Medrol dosepak,
and referred Petitioner to physical therapy. Id. Petitioner did not begin physical therapy at
this time.
On May 29, 2018 (almost four months later), Petitioner returned to her primary
care practice to follow up on her right shoulder pain. Ex. 2 at 41. She told Dr. Patrick J.
McCarville that her shoulder pain began within 24 hours of immunization and had not
improved since. Id. On exam, Dr. McCarville found range of motion “very much different
than the left shoulder,” which had normal range of motion. Id. Dr. McCarville reviewed the
prior x-ray and diagnosed Petitioner with immunization induced adhesive capsulitis. Id.
He prescribed Celebrex and referred Petitioner to physical therapy. Id.
On June 6, 2018, Petitioner presented to physical therapy stating that she began
having shoulder pain the day after a flu shot on December 30, 2017. Ex. 6 at 40. Petitioner
described her pain as constant, decreasing to 2/10 with rest and increasing to 8/10 with
movement. Id. She stated that she was mostly able to do her desk job with some increase
in shoulder pain, but she was limited in other activities, including horseback riding,
working on the farm, and sewing. Id. Although Petitioner had 5 total sessions of physical
therapy through June 18, 2018, “her shoulder motion did not increase much and pain
persisted.” Id. at 48.
On June 20, 2018, Petitioner returned to Dr. McCarville for a follow up on her right
shoulder pain. Ex. 2 at 15. Dr. McCarville assessed “adhesive capsulitis post
immunization” and referred Petitioner to an orthopedist after physical therapy and anti-
inflammatories did not provide relief. Id.
On June 25, 2018, Petitioner presented to orthopedist, Hsueh-Yu Wesley Cheng,
M.D. Ex. 5 at 23. She reported that her pain began in late December after she received
a flu shot. Id. She reported no relief from her previous treatments, including medications
and physical therapy. Id. She noted that the pain woke her up every hour while sleeping.
Id. On exam, Petitioner had limited active and passive range of motion, with pain at the
end points. Id. at 24. Dr. Cheng reviewed the previous x-ray and had new x-rays taken
that day. Id. He noted that the x-ray from February 2018 were limited and did not show
the glenohumeral joint. Id. He did not note a shoulder separation on either x-ray. Id. Dr.
Cheng assessed adhesive capsulitis and discussed nonoperative and operative
3

Case 1:20-vv-00093-UNJ Document 48 Filed 04/11/23 Page 4 of 14
treatment options with Petitioner. Id. Petitioner elected to proceed with a manipulation
under anesthesia. Id.
On July 11, 2018, Dr. Cheng performed a right shoulder manipulation under
anesthesia. Ex. 7 at 28. He was able to obtain full range of motion without any procedures.
Id. The day after, Petitioner returned to physical therapy. Ex. 6 at 20. Petitioner rated her
pain at 4/10 at rest and 7/10 with activity. Id. She completed 15 post-surgery physical
therapy treatments. Id. at 33. Because Petitioner’s insurance benefits were exhausted,
she was discharged from physical therapy prior to accomplishing all of her goals. Id. At
her last session, on August 27, 2018, Petitioner reported feeling less pain and improved
symptoms in her shoulder, but some continued soreness. Id. at 32.
On July 19, 2018 and August 21, 2018, Petitioner had follow-up appointments with
Dr. Cheng. Ex. 5 at 2; Ex. 9 at 2. At her August visit, Petitioner reported improvements in
range of motion and daytime pain, but continued pain at night that woke her on a daily
basis. Ex. 9 at 2. Petitioner explained that she was running out of coverage for physical
therapy. Id. Dr. Cheng administered a cortisone injection and encouraged Petitioner to
continue her home exercise program on her own. Id.
On January 21, 2019, Petitioner returned to Dr. Cheng reporting continued pain at
the end ranges of motion and continued symptoms at night that wake her up. Ex. 9 at 7.
She reported initial relief after the cortisone injection. Id. A second cortisone injection was
administered. Id. There are no additional treatment records.
Petitioner described the impact of her injury on her daily life in her affidavit. See
Ex. 15. She noted that over two years after her vaccination, she continued to have pain
and reduced strength in her right arm. Id. at ¶8. She stated that she is no longer able to
work on her farm without assistance. Id. She continued to have difficulty sleeping “since
there is no comfortable way to lay.” Id. at ¶9.
III. Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
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To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 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 addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a Tdap vaccine. 42 C.F.R. § 100.3(a)(II)(C). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
5

Case 1:20-vv-00093-UNJ Document 48 Filed 04/11/23 Page 6 of 14
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
B. Factual Findings Regarding QAI Criteria for Table SIRVA
After a review of the entire record, including the parties’ briefs, I find that Petitioner
has preponderantly satisfied the QAI requirements for a Table SIRVA. The medical
records and affidavits filed in this case are hereby incorporated by reference.
1. Prior Condition
The first QAI for a Table SIRVA requires that a petitioner have no history of
problems associated with the affected shoulder which were experienced prior to
vaccination and would explain the symptoms experienced after vaccination. 42 C.F.R.
§ 100.3(c)(10)(i).
Respondent does not dispute that Petitioner has met the first requirement under
the QAI for a Table SIRVA. Additionally, I do not find any evidence that Petitioner suffered
a pre-vaccination history of problems that would explain her post-vaccination shoulder
symptoms. Accordingly, I find that Petitioner has met this first criterion to establish a Table
SIRVA.
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2. Onset of Pain
A petitioner alleging a SIRVA claim must also show that she experienced the onset
of pain within 48 hours of vaccination. 42 C.F.R. § 100.3(c)(10)(ii).
Respondent does not dispute Petitioner has met this requirement. Additionally, I
find that Petitioner’s medical records establish that she suffered the first symptoms or
onset of shoulder pain within 48 hours of her flu vaccination on December 30, 2017. See,
e.g., Ex. 2 at 40, 60; Ex 5 at 22; Ex. 6 at 38; Ex. 15 at ¶2. Accordingly, I find that Petitioner
has met this criterion to establish a Table SIRVA.
3. Scope of Pain and Limited ROM
Respondent has not contested that Petitioner meets this criterion. In addition, the
medical records document pain and limited range of motion only in Petitioner’s right
shoulder following her flu vaccination. See, e.g., Ex. 2 at 40, 60; Ex 5 at 22; Ex. 6 at 38. I
thus find that Petitioner has demonstrated by a preponderance of the evidence that her
pain and reduced range of motion were limited to the shoulder in which the intramuscular
flu vaccine was administered.
4. Other Condition or Abnormality
The last QAI criteria for a Table SIRVA states that “[n]o other condition or
abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or
clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other
neuropathy).” 42 C.F.R. § 100.3(c)(10)(iv).
Respondent argues that “the evidence establishes the presence of a likely right
shoulder sprain that would explain Petitioner’s symptoms.” Resp. at 8. Respondent
highlights the record of Petitioner’s first post-vaccination treatment for her shoulder pain,
when Dr. Mahloch reviewed x-rays and noted “AC joint may have a few mm of separation
making it a first-degree separation with some hazy inflammation findings just above it.”
Ex. 2 at 61. Dr. Mahloch went on to diagnose Petitioner with “rotator cuff injury and likely
a first-degree AC separation.” Id. Respondent argues that this diagnosis is a shoulder
sprain associated with the fall reported by Petitioner three weeks after her vaccination,
and that it explains the symptoms Petitioner experienced throughout her treatment. Resp.
at 8-10.
Respondent further argues that Petitioner ignores Dr. Mahloch’s statements
regarding a shoulder separation in arguing that her flu vaccination caused a SIRVA injury.
Resp. at 9. However, Respondent’s argument relies on only one record and ignores the
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records of ongoing treatment that both do not mention a shoulder separation or sprain,
while consistently linking Petitioner’s symptoms to her vaccination. First, Petitioner has
provided preponderant evidence that she made a call to her PCP on January 8, 2018, ten
days after her vaccination (and before the fall on ice), reporting her shoulder pain from
the vaccination. See Ex. 15 at ¶3; Ex, 17 at 2. Second, the remainder of Petitioner’s
medical records consistently connect her flu vaccination to her shoulder symptoms and
not the accident. See e.g., Ex. 2 at 15 (adhesive capsulitis post immunization); Ex. 2 at
41 (diagnosed with immunization induced adhesive capsulitis); Ex. 5 at 23 (Petitioner
reported aching and throbbing and decreased range of motion since her flu shot). Notably,
no other treating physician assessed or mentioned a shoulder separation or shoulder
sprain.
Respondent argues that the lack of mention of Petitioner’s shoulder sprain in later
records is due to Petitioner’s failure herself to mention the fall on the ice or the shoulder
separation. Resp. at 9. However, it is well established that “medical records may be
incomplete or inaccurate,” because a petitioner failed to report everything that happened
at the relevant time, or where the medical professional failed to document everything a
petitioner said accurately in the written record. Camery v. Sec’y of Health & Human
Servs., 42 Fed. Cl. 381, 391 (1998); La Londe v. Sec’y of Health & Human Servs., 110
Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
While Respondent is correct that Petitioner’s later records do not memorialize
comments by Petitioner about her post-vaccination fall, or Dr. Mahloch’s impression of
her x-rays, it is speculation to conclude that Petitioner “hid” this relevant piece of
information – or, more so, that her treaters were denied access to records disclosing it,
like Petitioner’s x-rays. In fact, the second provider Petitioner saw, Dr. McCarville, was in
the same practice as Dr. Mahloch. See Ex. 2 at 41, 61. Further, there is evidence that
Petitioner’s orthopedist, Dr. Cheng, reviewed the x-ray on which Dr. Mahloch based his
assessment of a likely AC separation. Ex. 5 at 23. Dr. Cheng’s record specifically notes
that he reviewed the February 2018 x-ray and compared them to those taken at the June
25, 2018 appointment. Id. His reading of the x-rays did not include a shoulder separation
on either. Id.
In addition, Petitioner’s and her husband’s testimony is consistent with the medical
records. Both affidavits described Petitioner’s fall on the ice as minor, primarily involving
her right hip as opposed to her right shoulder. Ex. 15 at ¶4; Ex. 16 at f¶7. Both also
recalled the shoulder pain and limitations Petitioner was experiencing prior to the fall. Ex.
15 at ¶2-3 (Petitioner recalled her pain starting the day after vaccination and worsening
enough that she called her doctor for advice.); Ex. 16 at ¶7 (Petitioner’s husband
“specifically recalled” that Petitioner had woken him up and had not done chores on their
farm due to her shoulder pain before her fall.). In the record of the February 7, 2018 visit,
8

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Dr. Mahloch noted that Petitioner had “pain right after her flu shot” and then “3 weeks
later she did take a fall, mainly landing on her right hip but shoulder has been
progressively worsening since then.” Ex. 2 at 61. This testimony does not contradict the
medical records in which Petitioner consistently reported that her pain began with her flu
shot and that her fall impacted her right hip rather than shoulder. Although later oral
testimony that conflicts with medical records is less reliable, it is appropriate for a special
master to credit a petitioner’s lay testimony where is does not conflict with
contemporaneous records. Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1382-84 (Fed. Cir. 2021).
In the end, there is only one document evidencing a shoulder sprain, while the
preponderance of evidence shows that Petitioner suffered a pre-accident shoulder injury
from her flu vaccine that was not exacerbated or impacted by the fall on ice. Accordingly,
I find that Petitioner has established that there is no other condition or abnormality in the
medical records that would explain Petitioner’s post-vaccination symptoms.5
C. Other Requirements for Entitlement
As stated in the previous section, I find that the onset of Petitioner’s left shoulder
pain was within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
QAI requirement). This finding also satisfies the requirement that the first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(II)(C) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the Tdap vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA and is entitled to a presumption of causation.
Even if a petitioner has satisfied the requirements of a Table injury or established
causation-in-fact, however, he or she must also provide preponderant evidence of the
additional requirements of Section 11(c), i.e. receipt of a covered vaccine, residual effects
of injury lasting six months, etc. See generally § 11(c)(1)(A)(B)(D)(E). But those elements
are established or undisputed. Petitioner is entitled to compensation in this case.
IV. Damages
A. Legal Standards for Damages Awards
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
5 Certainly it is conceivable that a Program claimant could suffer an intervening accident post-vaccination
that did better explain subsequent symptoms than the alleged SIRVA – or that played a role in exacerbating
symptoms that would bear on the quantum of damages to be awarded. But in this case they evidence does
not preponderate in favor of either possibility.
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adopt and hereby incorporate my prior discussion in Sections II and III of Berge v. Sec’y
Health & Human Servs., No. 19-1474V, 2021 WL 4144999, at *1-3. (Fed. Cl. Spec. Mstr.
Aug. 17, 2021).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.
Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering. 6
B. Appropriate Compensation for Pain and Suffering
In this case, Ms. Bidlack’s awareness of her injury is not disputed, leaving only the
severity and duration of that injury to be considered. In determining appropriate
compensation for pain and suffering, I have carefully reviewed and taken into account the
same record relied upon to determine entitlement. I have also considered prior awards
for pain and suffering, in both SPU and non-SPU SIRVA cases, and drawn upon my
experience adjudicating these cases. However, my determination is ultimately based
upon the specific circumstances of this case.
The record establishes that Petitioner’s shoulder pain was moderate in the
beginning. Although Petitioner called her PCP approximately ten days after vaccination
to report her pain, she did not make an appointment until about 40 days after vaccination.
Ex. 2 at 61. At that appointment, she was prescribed physical therapy treatment, which
she elected not to do at that time. Id. Then, she did not return for further treatment for
almost four months. Ex. 2 at 41. These facts suggest that Petitioner’s symptoms, including
pain, was tolerable during the first five months after her vaccination.
Once Petitioner returned to her PCP on May 29, 2018, she aggressively treated
her shoulder pain. She began physical therapy on June 6, 2018, where she rated her pain
at 8/10 at worst, decreasing to 2/10 with rest. Ex. 6 at 40. After five sessions of physical
therapy did not provide relief, Petitioner presented to an orthopedist, Dr. Cheng, who
recommended a less-intrusive surgical procedure (manipulation under anesthesia) which
she had on July 11, 2018. Ex. 5 at 23-24; Ex. 7 at 28. She returned to physical therapy
6 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (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)).
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the following day, reporting pain between 4/10 and 7/10. Ex. 6 at 20. Petitioner continued
physical therapy for 15 sessions but was discharged prior to accomplishing her goals due
to limitations with her insurance. Ex. 6 at 33. She continued to have significant post-
surgery pain that required two cortisone injections. Ex. 9 at 2, 7. The second injection, on
January 21, 2019, approximately 13 months after her vaccination, seems to have
substantially relieved Petitioner’s pain as she did not seek further treatment. Ex. 9 at 7.
Also bearing upon the pain and suffering sum to be awarded are Petitioner’s sworn
affidavit and that of her husband. Throughout her records and her affidavit, Petitioner
describes difficulty sleeping due to pain. Ex. 5 at 23 (“Most bothersome to her is the pain
that she is having at night. She is waking up every hour because of discomfort in her
shoulder.”); Ex. 15 at ¶7, ¶9 (“no comfortable way to lay”); Ex. 16 at ¶7 (kept waking her
husband). Additionally, Petitioner’s injury has impacted her ability to help with activities
on her family farm and her ability to enjoy her hobbies, including stacking hay in the barn,
carrying feed for animals, gardening, horseback riding, and quilting. Ex. 6 at 40; Ex. 15 at
¶8; Ex. 16 at ¶5-6. Both Petitioner and her husband mentioned that Petitioner was less
able to enjoy her grandchildren due to her injury. Ex. 15 at ¶9; Ex. 16 at ¶4.
Petitioner cites ten prior vaccine cases in her brief with awards ranging from
$70,000 and $125,000 to support her request for $105,000 in pain and suffering.7 Mot. at
31-32. Petitioner’s comparable cases provide a reasonable range for her pain and
suffering award. Of the ten cases, this case seems the most similar to Martin v. Secretary
of Health and Human Services, 2021 WL 2350004. No. 19-0830 (Fed. Cl. Spec. Mstr.
May 5, 2021). The Martin petitioner sought treatment 11 days after his vaccination with
mild pain. Id. at *3. After his first appointment, he did not seek any treatment, other than
a home exercise program, for 18 weeks. Id. Then, upon returning to treatment, Mr. Martin
had a cortisone injection, an MRI, and an arthroscopic subacromial decompression. Id.
After surgery, the Martin petitioner had three months of physical therapy (16 sessions)
and regained most of his shoulder function. Id. at *4. His total treatment was about 12
months, although he expressed some lingering symptoms, including pain and difficulties
with activities. Id. He was awarded $100,000 in pain and suffering. Id. at *5.
Here, Ms. Bidlack called her doctor within ten days, but waited a little over a month
to seek treatment. She also had a break in treatment after her first visit of about four
months (similar to the gap in Mr. Martin’s treatment), electing not to do physical therapy
at that time. Upon her return to treatment, she had five sessions of physical therapy, and
then a manipulation under anesthesia. Her post surgery treatment was more significant,
7 Respondent, by contrast, did not provide a proposed award, but states only that “Respondent requests
that this Court issue an order denying Petitioner’s request for $105,000.00, and instead, award pain and
suffering damages in a lower amount that is consistent with the evidence presented.” Resp. at 13.
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with 15 physical therapy sessions and two cortisone injections over six months. She
stopped treatment after 13 months. Although Ms. Bidlack had a less significant surgical
procedure (with no arthroscopic or open procedures) than did Mr. Martin, her post-
surgical treatment was more significant, primarily in severity of pain, which required two
cortisone injections. Both petitioners reported ongoing symptoms, including pain and
difficulty with activities. Overall, Ms. Bidlack’s pain and suffering was similar to that
experienced by Mr. Martin.
Accordingly, balancing the severity of Petitioner’s SIRVA injury and the impact on
her personally, and considering the arguments presented by both parties, a review of the
cited cases, and based on the record as a whole, I find that $100,000.00 in total
compensation for actual/past pain and suffering is reasonable and appropriate in this
case.
C. Out of Pocket Expenses
Petitioner requests $1,220.63 in past unreimbursed expenses. Mot. at 29.
Respondent does not dispute this sum and relies on my review of Petitioner’s submitted
documents. Resp. at 13. I have reviewed the documents submitted by Petitioner at Tab
A of her brief (Mot. at 36-44) and conclude that Petitioner’s request is appropriate.
Therefore, she is awarded $1,220.63 without adjustment.
D. Lost Wages
In her brief, Petitioner argues that she suffered lost wages because she “was
forced to use paid time off (“PTO”) for treatment related to her SIRVA injury, including
recovery from her surgery. Mot. at 29. She bases her argument on the Court of Federal
Claims’ recent decision in Gross v. Secretary of Health and Human Services, 154 Fed.
Cl. 109 (2021), in which the Court declined to review both my decision to award lost wages
for a petitioner who has used PTO and the amount I awarded. In support of her claim,
Petitioner provided a document from her employer regarding “Personal Time Off” and her
pay statements showing the time off she used for her SIRVA treatment. See Mot. at 45-
55. With respect to Petitioner’s request, Respondent stated only that her provided
documents “speak for themselves” and deferred to my judgment regarding any amounts
awarded. Resp. at 13.
The policy of Petitioner’s employer states that PTO will accrue up to a maximum
of 200 hours and will no longer accrue after that point until the balance falls below 200
hours. Mot. at 46. Petitioner argues that she used a total of 60 hours of PTO between
December 24, 2017 and July 21, 2018. Id. at 48-55. However, the total number of hours
reflected on the pay statements equals 56: 8 hours between December 24, 2017 and
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January 6, 2018; 4 hours between February 18, 2018 and March 3, 2018; 8 hours
between April 1, 2018 and April 14, 2018; 8 hours between May 27, 2018 and June 9,
2018; 4 hours between June 24, 2018 and July 7, 2018; and 24 hours between July 8,
2018 and July 21, 2018. Id. Petitioner’s medical records do not reflect any treatment for
her SIRVA injury between February 8, 2018 and May 29, 2018. As a result, the 12 hours
during that period will be excluded, resulting in a claim for 44 hours of PTO as lost wages.
In Gross, a primary consideration was the fact that the PTO in question was not
subject to a cap or a “use or lose” policy. Gross v. Sec’y of Health & Human Servs., 2021
WL 2666685, No. 19-0835V, at *6 (Fed. Cl. Spec. Mstr. March 11, 2021). This suggests
a higher probability than otherwise that the Gross petitioner would receive a
reimbursement for accrued PTO at the time she left her employment because she could
carryover PTO from year to year. Id. Ms. Bidlack’s probability is much lower, however,
because her paid time off is capped at 200 hours (or roughly 25 workdays), and her pay
statements reflect that she carried a balance of more than 100 hours of PTO during the
period in question. Mot. at 48-55. Considering all of the above, and the fact that Petitioner
has offered some evidence that she would receive compensation, I find it reasonable to
award Petitioner one-quarter of the PTO she used during treatment of her SIRVA, which
I determine to have a value of $590.44.8
Conclusion
For all of the above reasons, the I award Petitioner a lump sum payment of
$101,811.07, (representing $100,000.00 for Petitioner’s actual pain and suffering,
$1,220.63 for unreimbursable out-of-pocket expenses, and $590.44 in lost wages) in the
form of a check payable to Petitioner Jody Bidlack.
This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision.9
8 For the period December 24, 2017, Petitioner earned $2,113.86 per pay period. Mot. at 49. This amounts
to $52.85 per hour based on a 40 hour work week ($2,113.86/40 = $52.85). Therefore, 8 hours of PTO
used during that pay period has a value of $422.80. For the remainder of the period, Petitioner earned
$2,154.54 per pay period, or $53.86 per hour. Mot. at 50-55. Therefore, the value of the remaining 36 hours
of PTO used is $1,938.96 ($53.86 * 36 hours = $1,938.96). The total value of the PTO is $2,361.76 ($422.80
+ $1,938.96 = $2,361.76), one-quarter of which is $590.44 ($2,361.76/4 = $590.44).
9 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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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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