VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00243
Package ID: USCOURTS-cofc-1_20-vv-00243
Petitioner: Charrie Ann Gibson
Filed: 2020-03-04
Decided: 2022-11-16
Vaccine: influenza
Vaccination date: 2018-10-01
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 77187

AI-assisted case summary:
Charrie Ann Gibson filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) causally related to an influenza vaccine received on October 1, 2018. The case proceeded as a Table claim, with the parties disputing entitlement and damages. The court found that Ms. Gibson established entitlement to compensation for a Table SIRVA, noting that her prior history of neck pain did not explain the specific left shoulder injury. The court awarded her $75,000.00 for actual pain and suffering and $2,187.31 for actual unreimbursed expenses, for a total award of $77,187.31. The decision addressed the criteria for SIRVA, including prior history, timing of pain, localization of injury, and the absence of other conditions explaining the symptoms. The court also detailed the calculation of damages, considering the severity and duration of the injury, and the appropriateness of mileage reimbursement rates.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00243-0
Date issued/filed: 2022-11-16
Pages: 19
Docket text: PUBLIC DECISION (Originally filed: 10/05/2022) regarding 52 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
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Case 1:20-vv-00243-UNJ Document 55 Filed 11/16/22 Page 1 of 19
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0243V
UNPUBLISHED
CHARRIE ANN GIBSON, Chief Special Master Corcoran
Petitioner,
v. Filed: October 5, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Influenza (Flu); Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA); Table Injury; Entitlement to
Compensation; Damages; Pain and
Suffering; Medical Mileage.
William E. Cochran, Jr., Black McLaren, et al., PC, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On March 4, 2020, Charrie Ann Gibson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) causally related to an influenza (“flu”) vaccine received on
October 1, 2018. See Petition. The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters. The parties have disputed entitlement, as well
1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the opinion 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-00243-UNJ Document 55 Filed 11/16/22 Page 2 of 19
as the proper damages to be awarded for her claimed Table SIRVA assuming a favorable
entitlement ruling for Petitioner.
For the reasons set forth below, Petitioner’s Motion for a Ruling on the Record
(ECF No. 49) is GRANTED. Petitioner is entitled to compensation for a Table SIRVA, and
she is awarded reasonable compensation in the amount of $77,187.31 (representing
$75,000.00 for actual pain and suffering and $2,187.31 for actual unreimbursed
expenses).
I. Relevant Procedural History
Two days after filing her petition, Ms. Gibson filed the supporting documentation
required under the Vaccine Act. Exhibits (“Exs.”) 1-11; see Section 11(c). That same
month, the case was activated and assigned to the SPU (OSM's adjudicatory system for
attempting to resolve cases deemed likely to settle). ECF No. 9. Petitioner subsequently
filed additional medical records and one supporting witness affidavit (Exs. 12-18). The
parties engaged in settlement discussions before reaching an impasse at the end of 2021.
Status Reports (ECF Nos. 27-40).
Thereafter, in January 2022, Respondent filed his formal report opposing
compensation for a Table SIRVA, on the grounds that Petitioner had not established
several of the required criteria (detailed in the below analysis). Rule 4(c) Report (ECF No.
29) at 11-12. I instituted a briefing schedule covering both entitlement for a Table SIRVA
and (in the event that Petitioner prevailed) an appropriate award of damages for the same.
Scheduling Order (Non-PDF) entered April 27, 2022.
On May 27, 2022, Petitioner filed her supplemental affidavits (Exs. 19, 21),
updated medical records (Ex. 20), and a Motion for a Ruling on the Record (“Motion”)
(ECF No. 49). On June 27, 2022, Respondent filed a Response (ECF No. 50). On July
12, 2022, Petitioner filed her Reply (ECF No. 51). Petitioner’s Table claim is now ripe for
adjudication.3
II. Relevant Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits,
Respondent’s Rule 4(c) report, and the parties’ briefing. I find most relevant the following:
3 From the start of proceedings, Petitioner has preserved an alternative claim of injuries caused in fact by
the flu vaccine. Petition (ECF No. 1); Status Report (ECF No. 42); Motion at n. 1. Respondent’s Rule 4(c)
Report does not address this alternative. I determined to first resolve whether Petitioner could establish a
Table SIRVA claim, warning that if she was unsuccessful, the case could be transferred out of the SPU.
Scheduling Order filed February 22, 2022 (ECF No. 43).
2

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• Pre-Vaccination History. In the three years prior to the subject vaccination, Ms.
Gibson did not have a regular primary care provider and she obtained very limited
medical care. However, the parties debate the relevance of that pre-vaccination
care to Petitioner’s Table SIRVA claim.
• On March 20, 2017,4 upon establishing primary care with Rachel Beda, M.D.,
Petitioner reported “neck ROM limited turning to the L, thinks it is from stress, no
major trauma.” Ex. 9 at 5. Petitioner elaborated on her stress and anxiety, which
stemmed from a new teaching position. Id. Dr. Beda did not record any abnormal
findings on physical exam. Id.5 The assessments were 1) anxiety and 2) panic
disorders, both to be treated with prescription medication and lifestyle changes;
and 3) neck pain representing “cervicalgia,” which was “almost certainly a side
effect/ complication of the stress [Petitioner] is experiencing at work currently,” to
be treated with heat, stretching, and formal massage therapy. Id. at 6.6
• Petitioner attended a total of five (5) massage therapy sessions. She reported on
a handwritten intake form: “Limited range in neck movement. Muscle pain neck,
front and back. Muscle pain mid back and shoulders.” Ex. 4 at 11.7 On March 31,
2017, the therapist recorded: “[R]elief lasting for about 4-5 days after last tx.
Tension back up to constant L – M., esp. in between shoulder blades, w/ migration
to lower back.” Id. at 16.8 On April 7th, the therapist recorded: “[C]hronic discomfort
through UB and Nk mostly on L side still persisting, 5-6/10 in last week.” Id. at 7.
On April 21st, Petitioner had improvement, but still rated her back as 5/10,
specifically noting “tight[ness] in upper to lower back.” Id. at 18. After a two-month
gap, Petitioner returned for a final session on June 22nd, on which date she was
4 Respondent inadvertently stated that this encounter occurred on March 30, 2017. Rule 4(c) Report at 2.
Petitioner adopted that same error. Brief at 2.
5 There are no findings pertaining to the neck, shoulders, or arms. The musculoskeletal system findings
read: “Neuro NO TREMOR and FACIES SYMMETRIC.” Ex. 9 at 5.
6 Dr. Beda instructed Petitioner to follow up in one month “if sx worsen or don’t improve.” Ex. 9 at 6.
However, they had no further encounters.
7 Billing records suggest that the first massage therapy session occurred on March 24, 2017. Ex. 4 at 1.
However, there are no chart records from that date, see generally Ex. 4. Both parties state that the first
session was on March 20, 2017. Rule 4(c) Report at 2; Brief at 2.
8 Within each massage session record, the “Objective” section primarily consists of abbreviations, e.g., “HT
BL (L<R) upper thoracic esg’s; ilocostalis; multifidi>w/DT/MEFT/mm strip/XFF.” Ex. 4 at 16. The parties did
not address the significance of these notations throughout the medical records.
3

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recorded to have: “[N]eck and shoulder tension, L>R side, w/some restricted ROM
– rotation – to left side.” Id. at 19. Petitioner was instructed to continue massage
sessions “as needed.” Id. However, she did not have any further massage or
primary care encounters over the next fifteen (15) months. See Exs. 2, 4, 9.
• Vaccination and Subsequent History. On October 1, 2018, Petitioner received
the subject vaccination in her left deltoid muscle at a pharmacy. Ex. 15 at 5-6.
• Petitioner has submitted time-stamped photographs from the following evening,
which evidence bruising on her left upper arm. Ex. 11.9
• Approximately four months after vaccination, on February 6, 2019, Petitioner
established with a different primary care provider, Kathleen Barnes, M.D.
(hereinafter referred to as “the PCP”). Ex. 2 at 7-25. The PCP recorded Petitioner’s
concerns as: “Joint pain: Both elbows. Both hips. Both shoulders. Might be starting
in knees. Wrists, feet OK. Pain tends to travel, not always in the same place. Yoga
seems to help a lot. Not taking medication for her pain.” Ex. 2 at 15-16.
• On physical exam, the PCP recorded that both shoulders had normal range of
motion (“ROM”), strength, and no tenderness to palpation. Ex. 2 at 17. She
recorded that the bilateral elbows were tender to palpation and provocative
movements caused discomfort. Id.
• The PCP assessed “bilateral shoulder pain, unspecified chronicity, likely MSK
[musculoskeletal],” to be treated with massage therapy. Ex. 2 at 18; see also Ex.
4 at 21 (referral with diagnostic code “M2551 Pain in Shoulder”). She also
assessed “medial epicondylitis of elbow, unspecified laterality,” to be treated with
home exercises. Ex. 4 at 18.10
• During the primary care encounter, a physician assistant (“PA”) is recorded to have
administered a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine in
9 Petitioner and another fact witness’s affidavits (Exs. 1, 16, 19) discuss the bruising, as summarized below.
10 Petitioner recalled that as a result of her left shoulder pain, she was “doing things differently” with her left
elbow, resulting in secondary pain in her left elbow. Ex. 2 at 46 (July 28, 2019, email to PCP); Ex. 1 at ¶ 16
(affidavit).
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Petitioner’s left deltoid muscle – the same site of injury as the subject flu vaccine.
Ex. 2 at 7.11
• On March 14, 2019, Petitioner started massage therapy12 for “L shoulder pain
since last October after receiving flu shot. ROM limited w/ abduction, post.
extension, w/ mm tension. Left elbow tight and sore.” Ex. 4 at 23. On March 22nd,
Petitioner reported that massage had delivered “much improvement.” Id. at 24. On
April 4th, she reported that the last treatment had delivered about 5 days of “relief,”
and that her pain was “slowly improving.” Id. at 25.
• On May 29, 2019, Petitioner started chiropractic treatment.13 She reported that
after the October 2, 2018, flu vaccination, she had developed left shoulder bruising,
musculoskeletal pain, and joint pain. Ex. 6 at 3, 10. She could not “lift arm to full
range.” Id. at 3. The pain interfered with daily activities and sleep, and was always
present, although massage provided “temp[orary] relief” for “2-3 days.” Id. The pain
was 6/10 at best and 10/10 at worst. Id. The chiropractor recorded: “also
cervicothoracic tension, intermittent, left, aggravated by driving, random activities
of daily living, alleviated with rest.” Id. at 10. The chiropractor diagnosed
dysfunction in one upper extremity, as well as in the thoracic, cervical, lumbar, and
pelvic spinal regions. Id. He performed a chiropractic adjustment which was well-
11 Petitioner acknowledged receipt of a second vaccination in her allegedly injured left arm. Motion at 4;
see also Ex. 2 at 46 (recalling that she did not “want [her right arm] messed up too”).
12 After vaccination, Petitioner attended a total of 29 massage therapy sessions - specifically on March 14;
March 22; April 4; June 27; July 5; July 24; July 31; August 12; August 20; August 29; September 5;
September 19; September 23; October 1; October 8; October 18; October 22; October 31; November 8;
November 15; December 5; December 14; and December 19, 2019. Ex. 4 at 19-25; Ex. 5 at 9-38. Further
sessions occurred the following year, specifically on February 13; February 25; and March 12, 2020. Ex.
14 at 17-18. Petitioner received one additional massage therapy session from a new provider on May 17,
2021. Ex. 18 at 1.
As noted above at note 7, supra, the massage records contain considerable abbreviations, which the parties
have not addressed. However, it is evident that the sessions in early 2017 addressed bilateral complaints,
while the sessions beginning in 2019 were focused on the left upper body. See generally Ex. 4.
13 Petitioner attended a total of 10 chiropractic sessions. Those sessions were on May 29; June 3; June 7;
June 10; June 14; June 19; June 26; July 2; July 12; and July 26, 2019. Ex. 6 at 9-35.
5

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tolerated. Ex. 6 at 10; see also id. at 37-38 (intake forms acknowledging that
chiropractic care was limited to addressing vertebral subluxation14).
• Petitioner reported symptoms improvement during the first five chiropractic
appointments. Ex. 6 at 12-24. Then on June 19, 2019, the chiropractor recorded
that Petitioner “took a yoga class this weekend where they performed
micromovements in the joints and her shoulder feels significantly better… overall
she is feeling better since her last treatment.” Id. at 22. On June 26, 2019, the
chiropractor recorded that Petitioner experienced “significant aggravation to left
glenohumeral joint (shoulder) with awkward movement.” Id. at 25.
• On July 5, 2019, Petitioner returned to the PCP’s practice, where a physician
assistant (“PA”), recorded: “Left shoulder pain and decreased ROM. History of left
shoulder pain but has been treated for chiropractor and massage therapy (Jan
2019). Two weeks ago, symptoms started again after doing a pulling motion. Prior
to this incident she was at a yoga retreat.” Ex. 2 at 29. On exam, the PA
documented no tenderness or weakness, but decreased ROM and positive
impingement signs. Id. at 28. Petitioner was assessed with tendinitis, for which she
was given a home exercise regimen and referrals to acupuncture, physical
therapy, and a sports medicine specialist. Id. at 28; Ex. 3 at 74.
• Also on July 5, 2019, the massage therapist recorded “3 days of relief after last tx.
Ache and tension back up to 7/10 today, in left shoulder.” Ex. 4 at 27.
• On July 9, 2019, Petitioner started acupuncture treatment.15 She indicated the
“main source of pain” as her left shoulder, with “secondary” pain in her left scapula,
both present since October. Ex. 7 at 3-4. The pain was currently 5-6/10,
occasionally rising to 9/10. Id. at 9. On exam, left shoulder abduction was limited
to 70 degrees. Id. There were adhesions in the supraspinatus, infraspinatus,
trapezius, and rhomboid attachment at the left medial scapula. Id.
14 The intake forms define vertebral subluxation as “a misalignment of one or more of the 24 vertebrae in
the spinal column which causes alteration of nerve function and interference to the transmission of mental
impulses.” Ex. 6 at 38.
15 Petitioner attended a total of 17 acupuncture sessions on July 9; July 15; July 25; July 30; August 5;
August 19; September 9; September 16; September 30; October 14; October 21; October 28; November
4; November 12; December 16, 2019; January 2; and January 13, 2020. Ex. 7 at 9-17; Ex. 13 at 7-11.
6

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• On July 12, 2019, the chiropractor recorded that Petitioner’s left shoulder had
“continued aggravation,” remaining “about the same or worse” as at previous
appointments. Ex. 6 at 29.
• On July 24, 2019, a sports medicine specialist, Ty C. Jones, M.D., recorded that
Petitioner “had been referred by [the PA seen on July 5, 2019] for consultation
regarding her left shoulder pain.” Ex. 4 at 74. He echoed the history that Petitioner
“presented on 7/5/19 with left shoulder pain intermittently since the beginning of
the year that improved with massage in January, but then started again 2 weeks
prior to that visit after a pulling motion.” Id. Dr. Jones then recorded that “In our
interview, [Petitioner] notes that the pain started shortly after getting a flu shot that
was given high on her deltoid. She initially developed pain deep to the anterior
shoulder, and over time has also been losing ROM. The pain is minimal at rest but
sharp and severe at the limits of ROM,” rating 11/10. Ex. 3 at 74. An x-ray
demonstrated acromioclavicular arthropathy. Id. Dr. Jones assessed left shoulder
adhesive capsulitis for which he administered a corticosteroid injection to her left
glenohumeral joint, provided home exercises, and referred to physical therapy
(“PT”). Id. at 75.
• On July 28, 2019, Petitioner emailed the PCP, reporting dissatisfaction with her
treatment to date. Ex. 2 at 46. Petitioner reported that on February 2nd, her chief
concern had been left shoulder pain since the flu vaccine, with secondary left
elbow pain “because [she] was having to do things differently.” Id. Petitioner denied
endorsing other areas of pain. Id. Petitioner also wrote: “You [the PCP] even asked
me if I was scared to get the tetanus shot on that visit, and I said yes, I didn’t want
it in my right arm because I didn’t want that one messed up too.” Id. The specific
PCP was out of the office; a physician colleague responded to the email and
assisted Petitioner’s transfer to a new practice. Id. at 45; see also Ex. 3 at 129-31
(new patient evaluation).
• After the chiropractic course ended, on August 2, 2019, the chiropractor noted:
“shoulder pain should be primary diagnosis, with thoracic subluxation and
dysfunction being corollary” without any further explanation. Ex. 6 at 32.
• Petitioner started PT on the first available date, August 6, 2019. Ex. 2 at 54. She
reported a similar history dating back to the flu vaccination, that the cortisone
injection had “helped immensely,” and that her current pain was “minimal at rest
but sharp and severe at the limits of ROM,” rising to 7-8/10. Ex. 3 at 105. The
assessment was adhesive capsulitis with “expected limits in ROM with pain at end
7

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range.” Id. at 106. Petitioner was given home exercises and instructed to return
“every other week for 2 sessions.” Id. at 108-10.
• On August 20, 2019, Petitioner emailed the sports medicine specialist reporting
improved ROM with PT but increasing pain and concern that the cortisone injection
was wearing off. Ex. 2 at 54.
• At her 2nd PT session on August 21, 2019, Petitioner reported increased pain (rated
at 11/10), but demonstrated “very gradual” improvements in ROM. Ex. 3 at 111-
13. At her 3rd and final PT session on September 3, 2019, she reported “no
significant change in pain levels.” Id. at 117-19.
• On September 10, 2019, an MRI of the left shoulder visualized adhesive capsulitis;
minimal to mild supraspinatus tendinosis; and medial subluxation of the long head
of the biceps tendon. Ex. 3 at 155-56. That same day, Petitioner emailed the sports
medicine specialist, reporting that the MRI was “incredibly painful” and she “was
crying halfway through it.” Ex. 3 at 92. She had changed from ibuprofen (e.g.,
Tylenol) to naproxen (e.g., Aleve), which took “some of the edge off the pain.” Id.
• On September 30, 2019, the sports medicine specialist recorded that while
Petitioner’s adhesive capsulitis was improving – with increased ROM and no
remaining impingement signs – she had persistent pain consistent with
tendinopathy “correlat[ing] to the supraspinatus footprint” as evidenced on
ultrasound. Ex. 3 at 128-30. The sports medicine specialist offered a subacromial
steroid injection, which Petitioner declined on her belief that it would not be
effective. Id. at 130. She would see an orthopedist for a second opinion. Id.
• At the November 26, 2019, initial evaluation, orthopedist Sean Christopher
Adelman, M.D. reviewed Petitioner’s history of post-vaccination left shoulder pain
including her “pictures of the ecchymosis which occurred a few centimeters off the
anterolateral aspect of her acromion when the flu shot originally occurred,” and
conducted a physical exam. Ex. 3 at 135. Petitioner reported that she had “quite a
bit of pain for a long period of time,” but had “made quite a bit of progress with
massage and physical therapy,” and that the steroid injection “helped
demonstrably as well.” Id.
• Dr. Adelman assessed “flu vaccine-related subacromial bursitis” and secondary
adhesive capsulitis. Id. He opined that in a “thin female” such as Petitioner, an
injection administered “a bit more superiorly… allows the needle to penetrate the
subacromial space.” Id. Dr. Adelman continued: “Although the immunologic
reaction to the needle is normal and is dealt with a good vascular supply in the
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deltoid muscle, the subacromial space is relatively avascular, so it creates an
inflammatory response with lessened ability to remove the inflammatory debris
which results in an immune-mediated subacromial bursitis which typically resolves
of its own accord, but occasionally cannot.” Id. at 135-36. The plan was to continue
physical therapy, acupuncture, and massage and follow up in 6-8 weeks. Ex. 3 at
136; see also id. at 139-40 (email updates on her condition).
• At a December 23, 2019, primary care appointment, Petitioner received a flu
vaccination in her left shoulder. Ex. 12 at 19-22, 41. The visitation note did not
mention shoulder pain. Id. at 19-22.
• At a January 9, 2020, orthopedics follow-up, Petitioner reported that her left
shoulder felt 80-85% better and she was hopeful for further improvement. Ex. 12
at 23. A physical exam documented improved but still limited ROM. Id. at 23-24.
The orthopedist commented that Petitioner was “slowly but surely getting better,
but… not where she need[ed] to be.” Id. at 24. The plan was to continue with home
exercises and stretching, follow up in a couple of months, and consider surgery if
her symptoms continued. Id.
• On October 24, 2020, Petitioner underwent an annual physical. Ex. 17 at 4. She
reported persistent left shoulder pain and limited ROM. Id. at 11. She wished to
restart massage therapy, physical therapy, and acupuncture. Id. at 8. She was
administered a flu vaccine in her left shoulder. Id.
• On May 17, 2021, Petitioner presented for massage therapy at a new provider,
Pain-Free Solutions. Ex. 18 at 1. On the intake form, she identified her main
complaint to be her left shoulder pain, currently rated at 3/10. Id. Petitioner reported
that she had not been receiving treatment due to the COVID-19 pandemic. Id. An
examination documented pain with arm elevation and rotation. Id.
• Affidavits. Petitioner denied any pre-vaccination left shoulder pain, lost ROM, or
injury. Ex. 1 at ¶ 4. She recalled receiving the vaccination on Monday, October 1,
2018, at approximately 3:30 p.m. Id. at ¶ 5. It caused immediate pain, bleeding,
and bruising at the injection site, for which the pharmacist told her to apply ice and
take over-the counter ibuprofen. Id. at ¶ 9.
• Petitioner recalled that “the following morning… during [her] first morning break at
[her] job” at the elementary school, she presented to the onsite registered nurse
(“RN”). Ex. 1 at ¶¶ 11-12. The RN confirmed that sometime “in the fall of 2018,”
Petitioner displayed left shoulder/ upper arm pain, redness, and swelling which she
attributed to a recent flu shot. Ex. 16 at ¶ 4. The RN explained that school policy
9

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restricted her to formal treatment of students; therefore, she did not create any
written record of, or provide any formal treatment for, Petitioner’s complaint. Id. at
¶ 4. The RN recalled telling Petitioner to apply ice and “seek treatment if the pain
continued” during this first interaction, and again at a later date. Id. at ¶¶ 4-5. The
RN denied knowledge of any prior history or other cause of Petitioner’s left
shoulder pain. Id. at ¶¶ 5-7.
• Petitioner recalled that over the next few weeks, the pain “lessened” and was
“manageable” including during her daily yoga practice. Ex. 1 at ¶ 14. However, “by
the end of [2018] and into the beginning of [2019],” the pain still woke her up during
the night and was so “unbearable” overall that she determined to find a new PCP.
Id. at ¶ 15. She recalled making the “earliest available appointment” for February
6, 2019; her dissatisfaction with that provider; and that massage and chiropractic
treatment did not deliver lasting relief. Id. at ¶¶ 17-24. She recalled receiving the
cortisone injection on July 24, 2019, but she did not address its efficacy. Id. at ¶¶
25-27 (original affidavit dated March 3, 2020). In her supplemental affidavit dated
May 17, 2022, Petitioner asserts that she cannot raise her left arm more than 90%
without discomfort. Ex. 19 at ¶ 5. She can no longer bear any weight on her
shoulder while exercising or participating in yoga, and she has lost upper body
strength. Id. Based on this injury, she has foregone her personal yoga practice,
leading a daily class for students at her elementary school, and plans to establish
her own business. Id. at ¶ 4. Petitioner stated that “was not able to do all the
treatments [she] wanted to do” based on the financial costs of deductibles, copays,
and pain medications. Id. at ¶ 6.
III. Entitlement
A. Authority
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.
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 & Hum. 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
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be accurate. See Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. 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,16 a petitioner must
establish that he suffered an injury meeting the Table criteria, in which case causation is
presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F.R. § 100.3(a)(XII)(A). 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 abnormality is not known). A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
16 In summary, a petitioner must establish that he or 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 the injury,
or underwent a surgical intervention during an inpatient hospitalization; and that he or she has not filed a
civil suit or collected an award or settlement for the injury. See § 11(c)(1)(A)(B)(D)(E).
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(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. Application
After a review of the entire record, I find that a preponderance of the evidence
supports that Ms. Gibson has established entitlement for a Table SIRVA.
1. Range of Motion
Respondent argued that the QAI requires a petitioner to establish both “shoulder
pain and limited range of motion.” Response at 2 (citing 42 C.F.R. § 100.3(c)(10) at
Introduction and (ii) (emphasis added)).17 Because in statutory interpretation, “every word
of a statute must be given effect if possible,” “statutory phrases separated by the word
‘and’ are usually interpreted in the conjunctive.” Id. (internal citations omitted). Petitioner
briefly disputed any such requirement for limited ROM. Reply at 2. Indeed, it has
previously been questioned. See Portee v. Sec’y of Health & Hum. Servs., No. 16-1552V,
2018 WL 5284599, *11 (Fed. Cl. Spec. Mstr. Sept. 14, 2018) (stating that limited ROM
“could be deemed an additional requirement in the QAI”) (emphasis added); Dawson v.
Sec’y of Health & Hum. Servs., No. 19-0278V, 2021 WL 5774655 at *2 (Fed. Cl. Spec.
Mstr. Nov. 4, 2021) (reasoning that the introductory paragraph contained “some
17 Respondent did not argue that limited ROM must begin alongside the shoulder pain for which onset must
be within forty-eight (48) hours after vaccination. Response at 2-4. This argument has previously been
rejected. See, e.g., Portee v. Sec’y of Health & Hum. Servs., No. 16-1552V, 2018 WL 5284599, *11 (Fed.
Cl. Spec. Mstr. Sept. 14, 2018) (“There is… no requirement regarding the timing of the onset of the limited
ROM”); accord Rodgers v. Sec’y of Health & Hum. Servs., No. 18-0559V, 2021 WL 4772097, at *8 (Fed.
Cl. Spec. Mstr. Sep. 9, 2021).
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ambiguity,” and that subclause (ii) “could be understood only to define the locus of range
of motion issues” when they are present).
I find it unnecessary to revisit this legal question in light of the specific case
evidence. Respondent correctly noted the first medical evaluation, occurring four months
post-vaccination, in which the new PCP recorded that shoulder ROM was normal.
Response at 3 (citing Ex. 2 at 7, 15-17). Respondent then argued that ROM was not
found to be limited until seven and one-half months, which he argued, would not be
reasonably attributed to the vaccination. Id. at (citing Ex. 4 at 23). But the latter record
was in fact five and one-half months into the course, on March 14, 2019. Reply at 1-2.
Even setting aside Petitioner’s documented complaints about the PCP (which give rise to
an argument that ROM was limited, but not documented, during that encounter), the
March 2019 record establishes limited ROM within the first six months of the vaccination
which was not attributed to any alternative cause. I have also recognized that SIRVA
findings can evolve over time. Accord Rodgers v. Sec’y of Health & Hum. Servs., No. 18-
0559V, 2021 WL 4772097, at *8 (Fed. Cl. Spec. Mstr. Sep. 9, 2021) (stating that
“reductions in [ROM]… often lag after the initial injury by weeks or months”). Thus, even
if the QAI requires proof of limited ROM, it need not manifest at the same time as pain
(which the QAI clearly mandates must manifest in a specified timeframe). Petitioner has
established this QAI criteria.18
2. Prior History
Another issue to be resolved is whether Petitioner’s prior medical history would
explain her post-vaccination shoulder complaints. Response at 4-7 (citing 42 C.F.R. §
100.3(c)(10)(i)). As reviewed above, Petitioner previously reported stress, anxiety, and
cervicalgia involving both shoulders, for which she received five massage therapy
sessions concluding in June 2017. I recognize the lack of a formal discharge from
massage therapy or other positive medical record documentation that those complaints
were “completely relieved,” Response at 6. But based on the lack of further medical
treatment for approximately fifteen (15) months, as supplemented by the affidavits, even
if Petitioner’s cervicalgia persisted to some extent, it did not involve her left shoulder.
Overall, the evidence supports the conclusion that after the October 2018
vaccination, Petitioner sustained a new injury of vaccination site bruising, initial site pain,
18 Respondent also argued that if Petitioner could not establish limited ROM within the first six months after
vaccination, “then consequently, she cannot establish that she suffered the residual effects of said SIRVA
for six months or more.” Response at 4 (citing Section 11(c)(1)(D)). However, I find that the record supports
both pain and limited ROM within and continuing beyond six months of vaccination.
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and more persistent pain localized at the shoulder joint. See, e.g., Ex. 4 at 21, 23; Ex. 6
at 10; Ex. 7 at 3-4; Ex. 16 at 1-2. She resumed medical treatment for that specific reason.
The chiropractor again treated for cervicalgia (his specialty), and even suggested that it
was somewhat secondary to her shoulder injury. Regardless, even the chiropractor
recognized the left shoulder pain as the separate and “primary” diagnosis. Ex. 6 at 10,
32, 37-38.
Respondent also argued that Petitioner’s post-vaccination symptoms “resolved”
with massage and chiropractic treatment, but then “started again after doing a pulling
motion” in June 2019. Response at 6, citing Ex. 2 at 29 (PA’s history of present illness);
see also Ex. 3 at 74 (sports medicine specialist’s record repeating this history nearly
verbatim, upon referral from the PA). But other contemporaneous records do not support
a resolution of symptoms but instead, an ongoing injury that was “aggravated” with
awkward movement. Ex. 6 at 25, 29. Based on a full review, the evidence does not
preponderantly support the conclusion that Petitioner’s prior history would explain her
post-vaccination shoulder injury.
3. Injury Localized to Shoulder
Finally, to establish a Table SIRVA, a petitioner must establish pain and reduced
ROM were “limited to the shoulder in which the intramuscular vaccine was administered.”
42 C.F.R. § 100.3(c)(10)(iii). However, this requirement “does not prevent a petitioner with
simultaneous areas of pain due to unrelated conditions from also meeting the Table
definition.” Rodgers v. Sec’y of Health & Hum. Servs., No. 18-0559V, 2021 WL 47772097,
at *8 (Fed. Cl. Spec. Mstr. Sept. 9, 2021).
Here, Respondent emphasized that at the first medical evaluation four months post-
vaccination, Petitioner was recorded to have pain at various sites that “tend[ed] to travel,
not always in the same place.” Response at 7 (citing Ex. 2 at 15-16). The recorded
complaints are admittedly problematic for Petitioner – but may be viewed in the context of
a broad new patient evaluation. Importantly, the provider’s assessment and treatment plan
were ultimately focused on shoulder pain. Ex. 4 at 17, 21; accord Ex. 2 at 45-46
(Petitioner’s subsequent complaint that the provider had not properly documented that her
chief concern was left shoulder pain since the flu vaccine). And overall, the medical
records consistently reflect a new injury localized to the left shoulder.
In finding that this Table criteria has been fulfilled, I stress that unrelated conditions
must be separated out from the damages attributable for a Table SIRVA. Rodgers, 2021
WL 47772097 at n. 16; see also Knudsen v. Sec’y of Health & Hum. Servs., No. 18-1971V,
2021 WL 4448738, at *5 (Fed. Cl. Spec. Mstr. Aug. 23, 2021) (“distinguishable injuries are
not an additional basis for recovery”). Here, the Table SIRVA does not extend to elbow
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pain or to any aggravation of previously documented cervicalgia – and thus consideration
of such matters will be omitted from the damages award discussed further below.
IV. Damages
A. Authority
In a recent decision, I discussed at length the legal standard to be considered in
determining damages and prior SIRVA compensation within SPU. I fully adopt and hereby
incorporate my prior discussion in Sections II and III of Friberg v. Sec’y of Health & Hum.
Servs., No. 19-1727V, 2022 WL 3152827 (Fed. Cl. Spec. Mstr. July 6, 2022).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.19
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. When performing this analysis, I review the record
as a whole to include the medical records and affidavits filed and all assertions made by
the parties in written documents. I consider prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases and rely upon my experience adjudicating these cases.
However, I base my determination on the circumstances of this case.
Ms. Gibson avers that her October 1, 2018, vaccination caused past pain and
suffering which warrants an award of $80,000.00. Motion at 23. She emphasizes her initial
injection site bleeding and bruising, prompt presentation to the school RN, persistent pain,
and progressive loss of ROM. Id. at 20. She states that her medical encounters and her
characterizations of pain throughout the medical records illustrate a considerably long
and severe course. Id. at 21-22 (citing medical records dating through January 2020, and
19 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr.
May 14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).
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followed by the May 17, 2021, massage therapy reevaluation). Petitioner avers that her
pain and suffering has been longer and more severe than past SIRVAs which were
compensated between $75,000.00 - $80,000.00.20
Respondent contends that Petitioner’s proposed award is too high – without
offering an alternative number, reaction to Petitioner’s cited cases, or comparison to any
other cases. Response at 8. Importantly, the above entitlement analysis eliminates
several of Respondent’s arguments for a lower damages award. Id.21
A careful review of the medical records supports the conclusion that Ms. Gibson’s
initial injury was mild to moderate. I recognize her later recollection that the initial post-
vaccination pain was severe, and that she more likely than not presented to the school
RN approximately one day later. However, the school RN was unable to treat Petitioner
and urged her to seek out other care. Over the next few weeks, the pain became
manageable with conservative measures and activity modification. In total, Petitioner
delayed formal medical treatment for four months, of which only a few weeks is
reasonably attributable to locating and scheduling with the new PCP – indicating a less
severe injury.
As referenced above, Petitioner’s compensable injury is limited to a Table SIRVA.
Some of the early treatment was not confined to that injury, and therefore it should receive
less weight when calculating pain and suffering to be awarded. See, e.g., Ex. 4 at 23-24
(massage therapy also addressing left elbow tightness and soreness); Ex. 6 at 9-35
(chiropractic treatment also addressing cervicalgia); accord Friberg, 2022 WL 3152827,
at *4 (noting that lower pain & suffering awards are made to petitioners who “suffered
from unrelated conditions to which a portion of their pain and suffering could be
attributed”).
Petitioner’s treatment course was otherwise conservative. The most significant
intervention she received was probably the steroid injection – which was followed by
significant pain relief (at least temporarily), improvements in ROM, and discontinuation of
formal PT (after 3 sessions total). Despite a subsequent increase in pain, she was at least
20 Kent v. Sec’y of Health & Hum. Servs., No. 17-0073V, 2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7,
2019) (awarding $80,000.00 for actual pain and suffering); Goring v. Sec’y of Health & Hum. Servs., No.
16-1458V, 2019 WL 6049009 (Fed. Cl. Spec. Mstr. Aug. 23, 2019) ($75,000.00); Pruett v. Sec’y of Health
& Hum. Servs., No. 17-0651V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) ($75,000.00).
21 Specifically, I have not accepted Respondent’s arguments that Petitioner had “unresolved” left shoulder
pain prior to vaccination; that she lacked limited ROM at any point within six months after vaccination; and
that her post-vaccination injury “resolved” and was followed by a subsequent injury caused by an awkward
“pulling motion.” See Response at 8. However, I agree that Petitioner delayed in seeking treatment for four
months and that her treatment course was conservative overall.
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80-85% better by January 2020 (13 months into the course) and continued with only
conservative measures (over-the-counter pain medications, acupuncture, and massage).
I recognize that Ms. Gibson’s SIRVA may well have caused residual limited ROM and
pain, but the available evidence supports the conclusion that she has generally achieved
a good recovery.22
I have also taken into account Petitioner’s cited comparable cases. In Pruett, the
petitioner established “severe” pain for approximately the first two and one-half months
via the first medical presentation just 12 days into the course, documented early losses
in ROM, prescription-strength pain measures, and early MRI.23 2019 WL 3297083, at *2-
3, 9. Ms. Gibson’s initial pain, however, was mild to moderate, reducing the value of this
comparable. Otherwise, direct comparisons with Pruett, Goring, and Kent are difficult
because Ms. Gibson’s case involved a steroid injection – which demonstrated the severity
of her pain at that juncture, and also delivered meaningful if not total improvement in her
condition.
I find Petitioner’s circumstances to be more similar to other individuals who initially
delayed medical attention, improved with cortisone injection(s) and other conservative
measures, and actively treated for no more than one year. See, e.g., Bergstrom v. Sec’y
of Health & Hum. Servs., No. 19-0784V, 2021 WL 5754968 (Nov. 2, 2021) (awarding
$80,000.00 for actual pain and suffering); Lambert v. Sec’y of Health & Hum. Servs., No.
19-1335V, 20222 WL 1487253 (Fed. Cl. Spec. Mstr. March 29, 2022) ($73,000.00).
Petitioner’s proposed figure falls within that range. Based on the particular facts and
circumstances of this case, an award of $75,000.00 is therefore appropriate for
Petitioner’s actual pain and suffering.
C. Appropriate Compensation for Unreimbursed Expenses
Petitioner seeks $2,187.31 in out-of-pocket costs for medical treatment of her
SIRVA, and the related travel to and from her home. Motion (ECF No. 49)24 at 19. She
provides calculation of her mileage for each journey, multiplied by the IRS “business rate”
22 Petitioner does not claim – nor I do find sufficient evidence to conclude – that she would have pursued
additional formal treatment but for the COVID-19 pandemic.
23 Petitioner inadvertently stated that Pruett did not involve an MRI. Motion at 22; but see 2019 WL 3297083,
at *3.
24 Petitioner states that she “attached” her “Itemization and Documentation of Past Unreimbursable
Expenses” and other supporting documentation to the Motion. However, she filed all components as part
of the main PDF at ECF No. 49. Therefore, all citations are to the pagination on the top of the PDF (pages
1 – 51).
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for the relevant year. Id. at 24.25 She states that special masters have previously found
that the “business rate” is appropriate for use in this context. Id. (citing Williams v. Sec’y
of Health & Hum. Servs., No. 90-2239V, 1996 WL 608455 (Fed. Cl. Spec. Mstr. Oct. 10,
1996); accord Ashe-Robinson v. Sec’y of Health & Hum. Servs., No. 94-1096V, 1997 WL
54350 (Fed. Cl. Spec. Mstr. Jan. 23, 1997)). Respondent does not dispute any of the
medical expenses or the general proposition of reimbursing the related travel. Response
at 7-8. He only suggests that the IRS’s lower “medical” rate is applicable within the
Vaccine Program. Id. at 8 (lack of citations in the original).26
However, Respondent offers no rationale for diverging from Williams – in which
then-Special Master Hastings explained that Congress created a tax deduction for
medical mileage in limited circumstances involving “extraordinarily heavy medical
expenses,” and that this rate is intended to cover only vehicle operating expenses (i.e.,
gasoline and oil). Williams, 1996 WL 608455, at *2. The special master reasoned that the
Vaccine Program’s reimbursement of out-of-pocket costs involves a “very different
calculation… measur[ing] the actual cost to the petitioner of the injury.” Id. (emphasis
added). Thus, the special master found it appropriate to apply the more generous
business mileage rate, encompassing not only vehicle operating expenses but other fixed
costs (“depreciation, maintenance, repairs, tires, insurance, and registration fees”). Id.
Based on such persuasive prior case law, Respondent’s lack of additional
argument, and specific circumstances in this case,27 I award the requested mileage
costs and the other uncontested expenses – totaling $2,187.31.
V. Conclusion
Based on the record as a whole and both parties’ arguments, Petitioner’s Motion
for a Ruling on the Record (ECF No. 49) is GRANTED. Petitioner is entitled to
compensation for a Table SIRVA, and she is awarded reasonable compensation in the
25 The Williams decision, cited herein, identifies the statutory authority for the “business” rate as Internal
Revenue Code (hereinafter “I.R.C.”) § 162. Specific figures are at Internal Revenue Service, Standard
Mileage Rates, available at https://www.irs.gov/tax-professionals/standard-mileage-rates (last accessed
September 27, 2022).
26 Williams identifies the statutory authority for the “medical” rate as I.R.C. § 213. Specific figures are at the
same website cited supra at note 24.
27 Ms. Gibson has provided sufficient documentation that she personally incurred the travel expenses in
her own vehicle and in relation to the vaccine injury. Motion at 24-34; see also Ex. 21. Compare Morgan
v. Sec’y of Health & Hum. Servs., No. 20-1286V, 2022 WL 4717958 (Fed. Cl. Spec. Mstr. Sept. 2, 2022)
(denying mileage costs to an undergraduate student who may have been transported by his parents and in
conjunction with travel to his university), and additional cases cited therein.
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amount of $77,187.31 (representing $75,000.00 for actual pain and suffering28 and
$2,187.31 for actual unreimbursed expenses). 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.29
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
28 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
29 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.
19