VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00398
Package ID: USCOURTS-cofc-1_20-vv-00398
Petitioner: Michael Washburn
Filed: 2020-04-07
Decided: 2023-06-16
Vaccine: Tdap
Vaccination date: 2017-08-28
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 45676

AI-assisted case summary:
Michael Washburn filed a petition alleging he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of a Tdap vaccine received on August 28, 2017. Initially, the vaccination record indicated the Tdap vaccine was administered in his left arm, along with a pneumococcal vaccine. However, three days later, Mr. Washburn sought treatment for significant right arm pain, reporting the Tdap vaccine was given in his right arm. Medical records documented limited range of motion, tenderness, and pain in his right shoulder, leading to diagnoses of myositis, bursitis, impingement, and tendinitis. He underwent physical therapy for several months, and while he showed improvement, residual limitations persisted. The court found that the evidence, including Mr. Washburn's consistent reporting to medical providers and contemporaneous communications with friends, preponderantly supported that the Tdap vaccine was administered in his right arm. The court also found that Mr. Washburn met the six-month severity requirement, as residual symptoms and limitations persisted beyond that period, although the injury was considered mild. The case proceeded as a Table SIRVA claim. Ultimately, the parties stipulated to an award of $45,675.73, comprised of $45,000.00 for pain and suffering and $675.73 for past unreimbursable expenses.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00398-0
Date issued/filed: 2023-03-06
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/06/2023) regarding 36 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00398-UNJ Document 37 Filed 03/06/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0398V
UNPUBLISHED
MICHAEL WASHBURN, Chief Special Master Corcoran
Petitioner, Filed: February 6, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Table Injury; Tetanus diphtheria
HUMAN SERVICES, acellular pertussis (Tdap) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA); Situs;
Severity Requirement
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On April 7, 2020, Michael Washburn 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 he suffered a shoulder injury related to vaccine administration
(“SIRVA”) as a result of a tetanus diphtheria acellular pertussis (“Tdap”) vaccine he
received on August 28, 2017. Petition, ECF No. 1 at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
For the reasons detailed herein, and after consideration of the parties’ positions, I
find Petitioner likely received the subject Tdap vaccination in his right arm. I also find
1 Although I have not formally designated this Ruling 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 Ruling will be available to anyone
with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and
move to redact medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact
such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00398-UNJ Document 37 Filed 03/06/23 Page 2 of 12
Petitioner has satisfied the six-month sequelae requirement. Petitioner is thus entitled to
compensation under the Vaccine Act.
I. Relevant Procedural History
A year after the claim’s initiation, Respondent filed his Rule 4(c) Report, arguing
that Petitioner had failed to demonstrate receiving a covered vaccination in his right arm
because the vaccination record indicates the left arm. ECF No. 30 at 5. Respondent
further argued that Petitioner failed to satisfy the six-month sequelae requirement (or
“severity requirement”). Id. at 6. To resolve the matter expeditiously, briefs addressing
situs and severity were ordered. ECF No. 31.
On September 16, 2021, Petitioner filed his Motion for Ruling on the Record. ECF
No. 33. Petitioner asserted that the record on the whole demonstrates he received the
August 28, 2017 Tdap vaccine in his right arm, thereafter suffering a right SIRVA. (By
contrast, Petitioner asserted that he had received the non-covered pneumococcal
polysaccharide vaccine (“PPSV23 in his left arm). Id. at 10-12. Petitioner also asserted
that he suffered limitations through November 2018, more than a year post-vaccination,
thereby satisfying the severity requirement. Id. at 12-13.
Respondent in reaction maintained that “Petitioner has not submitted reliable,
persuasive evidence establishing that he received a Tdap vaccine in his right arm,”
rejecting evidence he characterized as hearsay along with Petitioner’s affirmations. ECF
No. 34 at 1-5. Respondent also submitted that Petitioner’s shoulder injury resolved in
February 2018, less than six months post-vaccination. Id. at 5-6. Respondent therefore
concluded that the matter must be dismissed for failure to meet several core Vaccine Act
claim requirements. Id. at 6. Petitioner did not file a reply.
The matter is ripe for adjudication.
II. Findings
At issue is (a) whether Petitioner’s Tdap vaccination was administered in his right
or left arm, and (b) whether Petitioner suffered from a right shoulder injury for more than
six months (assuming a covered vaccine was received in that arm). Section 11(c)(1)(D)(i)
(statutory six-month sequelae requirement).
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
2

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11(c)(1), including the factual circumstances surrounding his 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 & 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). Medical records created contemporaneously with
the events they describe are generally considered to be more trustworthy. Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); but see Kirby v.
Sec’y of Health & Human Servs., 993 F.3d 1378, 1382-83 (Fed. Cir. 2021) (clarifying that
Cucuras does not stand for proposition that medical records are presumptively accurate
and complete). While not presumed to be complete and accurate, medical records made
while seeking treatment are generally afforded more weight than statements made by
petitioner after-the-fact. See Gerami v. Sec'y of Health & Human Servs., No. 12-442V,
2013 WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013) (finding that
contemporaneously documented medical evidence was more persuasive than the letter
prepared for litigation purposes), mot. for rev. denied, 127 Fed. Cl. 299 (2014). Indeed,
“where later testimony conflicts with earlier contemporaneous documents, courts
generally give the contemporaneous documentation more weight.” Campbell ex rel.
Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006); see United
States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948).
However, incomplete or inaccurate medical records may be outweighed by later
testimony, if such testimony is “consistent, clear, cogent, and compelling.” Camery, 42
Fed. Cl. at 391 (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90- 2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). It is within the special master’s
discretion to determine whether to afford greater weight to medical records or to other
evidence, such as oral testimony surrounding the events in question that was given at a
later date, provided that such determination is rational. Burns v. Sec’y of Health & Hum.
Servs., 3 F.3d 415, 417 (Fed. Cir. 1993).
When the severity requirement is in question, Petitioner must show by
preponderant evidence that she “suffered the residual effects or complications of such
illness, disability, injury, or condition for more than 6 months after the administration of
the vaccine.” 42 U.S.C. § 300aa-11(c)(1)(D)(i); see Song v. Sec'y of Dep't of Health &
Human Servs., 31 Fed. Cl. 61, 65-66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting
that a petitioner must demonstrate the six-month severity requirement by a
preponderance of the evidence). A petitioner must offer evidence that leads the “trier of
3

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fact to believe that the existence of a fact is more probable than its nonexistence.” Moberly
v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted). Finding that petitioner has met the severity requirement cannot be based on
petitioner’s word alone, though a special master need not base their finding on medical
records alone. See § 13(a)(1); see Colon v. Sec’y of Health & Human Servs., 156 Fed.
Cl. 534, 541 (2021).
B. Analysis
After a review of the entire record, including Respondent’s Rule 4(c) Report and
the parties’ briefs, I find that Petitioner most likely received the Tdap vaccine in his right
arm.3 Further, I find that Petitioner has met the severity requirement. Specifically, I note
the following:
• On August 28, 2017, Petitioner received a Tdap vaccine at his primary care
clinic. The administrator, Nurse Rowena Marlow, indicated that the Tdap
was given in Petitioner’s “left deltoid” at 10:20am. Ex. 1 at 1. Petitioner also
received a pneumococcal polysaccharide vaccine (“PPSV23”) at the same
appointment. Nurse Marlow indicated that the PPSV23 vaccine was also
given in Petitioner’s “left deltoid” at 10:22am. Id. These records were
entered and/or edited by Nurse Marlow at 11:28am on August 28, 2017. Id.
• On August 31, 2017 (just three days after vaccination), Petitioner returned
to his primary care clinic and reported significant right arm pain to Nurse
Marlow and Dr. Amelia Wantland. Ex. 16 at 36. Petitioner now reported
receiving a Tdap vaccination in his right arm, and a PPSV23 vaccination in
his left arm on August 28, 2017; he woke up with significant right arm pain
the next morning. Id. Petitioner reported inability to lift his right arm
overhead, pick up his toddler, or comfortably use his computer mouse. Id.
Petitioner also reported that his left arm was slightly sore the day after
vaccination, but to a much lesser degree. Id.
• Upon examination, Dr. Wantland found limited active range of motion
(“ROM”) in Petitioner’s right shoulder – 90 degrees of flexion and 100
degrees of abduction. Ex. 16 at 37. Tenderness to palpation along the right
deltoid and biceps muscles was also noted. Id. Dr. Wantland assessed
Petitioner with myositis of the right shoulder and a vaccine reaction,
suspecting “localized inflammation…high immunogenicity of Tdap vaccine.”
3 While I have not specifically addressed every medical record, or all arguments presented in the parties’
briefs, I have fully considered all records as well as arguments presented by both parties.
4

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Id. Petitioner was advised to take Aleve, rest and ice his shoulder, and to
return if his pain failed to improve. Id.
• On September 13, 2017, about two weeks after vaccination, Petitioner
called Dr. Wantland regarding his right arm. Dr. Wantland ordered x-ray
imaging for Petitioner’s right humerus given his “adverse reaction to Tdap
injection.” Ex. 16 at 44, 53. Petitioner was also referred to physical therapy.
Id.
• On September 18, 2017, about three weeks after vaccination, Petitioner
returned to Dr. Wantland for follow-up on his persistent right arm pain. Ex.
16 at 46, 53. Petitioner reported that the muscle pain had resolved but now
the pain was in his shoulder joint. He noted joint clicking and instability. Id.
at 53. Petitioner also reported that his massage therapist noticed some
muscle atrophy of his right shoulder. Id. Dr. Wantland documented right
shoulder arthralgias, right arm weakness, positive Neers and Scarf signs,
and limited flexion and abduction. Id. at 53-54. Petitioner was diagnosed
with right shoulder bursitis, right shoulder impingement, and right rotator
cuff tendinitis. Id. at 46, 55. Petitioner was advised to complete his x-ray
imaging and begin his physical therapy. Id. at 55. Petitioner was also
provided with home exercises for his conditions. See id. at 55-77.
• Petitioner presented for physical therapy evaluation on September 19,
2017. Ex. 2 at 48. Petitioner reported onset of “right shoulder pain and
mobility limitation following TDAP injection ~ 3 weeks ago.” Ex. 2 at 49. He
reported pain while lifting a coffee pot, a gallon of milk, and his two-year-old
son, as well as pain while using a computer mouse, driving, and playing
disc. He “had to modify” getting dressed and washing his hair. While he
typically worked out three days per week, he reported not having been able
to do any weight exercises since his vaccination. Id. at 49-50. Regina Alfred,
PT noted that Petitioner was right hand dominant. Petitioner’s pain was 8/10
at worst and 3/10 at the present, and he tested positive for Hawkins, Neer,
Full Can and Empty Can signs. Id. at 49-52. Petitioner’s active right
shoulder ROM was limited to 90 degrees of flexion and 135 degrees of
abduction (whereas his left shoulder ROM was 162 degrees and 175
degrees, respectively). External and internal rotation in Petitioner’s right
shoulder were also limited. Id. at 52. Decreased scapular strength was
noted as well as visible right shoulder muscle mass difference compared to
his left shoulder. Id. at 55.
5

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• Petitioner attended physical therapy on September 22 and 25, 2017. Ex. 2
at 105, 123. Sharp pains at ends of ROM were noted. Id. at 112, 138.
• On September 27, 2017, Petitioner discussed his x-ray results with Dr.
Wantland, who advised Petitioner that his x-ray showed mild arthropathy of
the acromioclavicular joint. Dr. Wantland advised Petitioner to share this
result with physical therapy. Ex. 16 at 81.
• Petitioner attended physical therapy on October 4, 6, 18, 23, 25, 27, and
30, 2017. Ex. 2 at 160-272. Petitioner made progress with his active ROM
and had some relief but continued to have disrupted sleep and difficulty with
lifting motions. Id. at 272, 294.
• Petitioner sustained a fall and knee laceration during a trail run on October
31, 2017. He ran over 6 miles after his fall then presented to the Emergency
Department for sutures and x-rays. Ex. 6 at 9-36. The record does not
mention right arm or shoulder issues. See id.
• Petitioner followed-up with Dr. Wantland on November 6, 2017 for his right
arm pain and his knee injury. Ex. 16 at 68. Petitioner reported that his right
shoulder range of motion was improving with physical therapy but was “still
not back to normal.” Ex. 16 at 88. His right shoulder pain woke him up 2 –
4 times per night, and he had “maximal tenderness” at his biceps tendon.
Id. Pain was worsened by pouring coffee and picking up his toddler. Id. On
examination, Dr. Wantland noted limited flexion and abduction of
Petitioner’s right shoulder (120 degrees and 145 degrees, respectively),
tenderness to palpation at the right biceps tendon, and pain with flexion,
abduction, and internal rotation. Id. at 90. Dr. Wantland ordered a right
shoulder MRI for right shoulder tendinitis and chronic shoulder pain; she
also referred Petitioner to orthopedic surgery. Id. at 91.
• Petitioner attended physical therapy on November 6, 8, and 13, 2017. Ex.
2 at 316-364. Petitioner reported “doing well” and having “minimal to no
pain” after not picking up his toddler for a few days. Id. at 364.
• On November 15, 2017, Petitioner presented for removal of the sutures in
his right knee and discussion of his right shoulder MRI. He also reported
significant improvement for his right shoulder tendinitis during a recent work
trip “since he didn’t have to lift his toddler throughout the day.” His shoulder
pain and ROM were improving. Ex. 16 at 100. Petitioner’s MRI showed
infraspinatus tendinopathy, muscular edema, and adjacent humeral head
6

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marrow edema. Supraspinatus tendinopathy was present to a lesser extent.
The MRI also showed mild acromioclavicular joint arthritis with bony
overgrowth and edema. There was no rotator cuff tear. Id. at 102.
• On November 29, 2017, Petitioner presented to Dr. Scott McClure, an
orthopedist, for right shoulder pain. Petitioner reported that his pain began
the morning after he received a Tdap injection in his right shoulder. Ex. 3 at
11. Petitioner described pain as relatively minimal at rest but intermittent
and stabbing when reaching and moving. Id. Dr. McClure found 160
degrees of flexion and 40 degrees of external rotation. Id. at 13. Petitioner
had “well preserved strength” and “good strength in wrist and hand.” Id. Dr.
McClure assessed Petitioner with adhesive capsulitis and recommended
home exercised and physical therapy focusing on “aggressive stretching.”
He also offered an injection which Petitioner declined. Id. at 14. Dr. McClure
advised Petitioner to return if his symptoms persisted. Id.
• Petitioner attended twelve additional physical therapy sessions and was
discharged on February 12, 2018, two weeks shy of six-months post-
vaccination. Ex. 2 at 408-680. Petitioner’s right shoulder active ROM had
improved significantly, with 148 degrees of flexion, 154 degrees of
abduction, 63 degrees of external rotation, and function internal rotation. Id.
at 680. Petitioner reported being able to go to the gym—“it [was] sore but
good.” Id. at 682. Petitioner was trial discharged to self-manage with a home
exercise program; he was recommended to return if symptoms persisted or
increased. Id. at 681. Petitioner had met most of his physical therapy goals
but had not entirely met his goal for flexion >150 degrees, abduction >165
degrees, and external rotation >75 degrees. Id. at 684.
• There is a subsequent, nearly nine-month delay in the medical record, with
the next filed record dated November 13, 2018. At this time, during an
unrelated visit to Dr. Christopher Pitcock, Petitioner reported his shoulder
history and asked Dr. Pitcock to examine his ROM because “he had ran out
of physical therapy visits” and had “been working on this at home.” Ex. 4 at
56. Petitioner reported still having discomfort in the shoulder with external
and internal rotation. Id. On examination, Petitioner had about 10 degrees
of limitation for internal and external rotation. No other shoulder issues were
noted, and Dr. Pitcock gave Petitioner home exercises to address the
eternal and internal rotation limitations. Id. at 57.
In addition to medical records, Petitioner filed an affidavit explaining the basis for
his contention that the Tdap vaccine he had received in August 2017 was administered
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in his right shoulder. Ex. 8. Petitioner stated that the PPSV23 vaccine was administered
prior to his Tdap vaccination, and in his left shoulder. Nurse Marlow, he recalled,
subsequently administered the Tdap vaccine in the opposite arm because “she said
something along the lines of ‘yeah, the tetanus shot hurts’” when he winced in response
to the shot. Id. ¶3. Petitioner affirmed that Nurse Marlow applied band-aids to both
shoulders following vaccination. Id.
Petitioner also has filed copies of electronic correspondence with several
acquaintances in which he discussed his shoulder pain in the days following vaccination.
Ex. 10-15. For example, three days after vaccination (August 31, 2017), Petitioner texted
his friends Tim Bishop and Troy Floden about how a shot “utterly immobilized” his right
shoulder. He explained that it was “an entirely avoidable thing that happens called
SIRVA,” and that he could not use his arm. Ex. 10. That same day, Petitioner disclosed
his shoulder issue to his friend Angel Ysagguirre in an email discussing a birthday party
he could not attend—“bad news – and I’m obsessing about this: I went to the doctor for a
physical and etc. on Monday. They gave me a tetanus booster in my right shoulder… but
now I can’t raise my arm anywhere near above my head…there’s a clinical term for this:
SIRVA.” Ex. 14 at 1.
Petitioner represents he sent a very similar emails two other friends, Amanda
Pertrusich and Will Allison, also on August 31, 2017. Ex. 11 at 4; Ex. 15 at 2. Mr. Allison
emailed with Petitioner about his shoulder over the next several weeks, and on
September 6, 2017, Petitioner wrote, “I have seen significant improvement, but my arm
is still basically costume jewelry…lifting is still out of the question.” Ex. 11 at 2. Petitioner
also told Mr. Allison about the US Vaccine Court and that it was “quite interesting to start
looking into vaccination and their side effects.” Id. On September 14, 2017, Petitioner
wrote and email to his friend Joseph Manning about a half marathon and his shoulder.
He complained that his right arm was still “costume jewelry,” “useless,” and that “the right
side of [his] body has literally started to atrophy.” Ex. 12 at 1. Records of these emails
were filed as redacted exhibits.
1. Situs
I find that the records taken in their totality support Petitioner’s contention that the
August 28, 2017, Tdap vaccine (not the PPSV23 vaccine) was likely administered in his
right arm. The only medical record indicating otherwise is Petitioner’s initial vaccination
record, which documents both the PPSV23 and Tdap vaccines administered in
Petitioner’s left arm. Ex. 1 at 1. By contrast, Petitioner (who sought treatment quite
promptly post-vaccination) repeatedly thereafter informed treaters that this vaccine, and
not the PPSV23, had been administered in his right arm.
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Respondent’s arguments to the contrary have some force but are ultimately
unsuccessful. First, he maintains that although one vaccine was likely administered to
Petitioner’s right arm, “there is no reliable evidence from which this Court can reasonably
conclude which vaccine petitioner received in his right shoulder.” ECF No. 34 at 2
(emphasis added). In so contending, Respondent notes that Petitioner relies on a hearsay
statement by Nurse Marlow – “yeah, the tetanus shot hurts” – when he winced from pain
after receiving the second vaccine (presumably evidencing the fact that she administered
it in a different arm after the first vaccine, precisely because of its capacity to cause pain).
But hearsay is “generally inadmissible in a court of law because it is presumptively un-
reliable.” Id. at 3, citing United States v. Godinez, 110 F.3d 448, 456 (7th Cir. 1997). And
Petitioner’s assertion that Nurse Marlow incorrectly documented his vaccination in the
initial administration record raises question as to the “accuracy of an oral statement from
the same person, made at the same time, similarly regarding the sites of vaccination.” Id.
at 4. Respondent also questions Nurse Marlow’s knowledge and understanding of what
occurred during the vaccine administration given the improper vaccine placement. Id.
While Respondent is of course correct generally about hearsay treatment, special
masters are not only not bound by the Federal Rules of Evidence, but are afforded broad
discretion in evaluating all evidence offered in support of a Vaccine Injury claim, including
hearsay. Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993)
(holding that it is within the special master's discretion to determine whether to afford
greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational). Thus, the fact that a statement offered is facially hearsay does
not prevent its consideration under the Act (subject to proper weighing in light of its
evidentiary reliability).
In addition, the hearsay statement is not without some verification. Medical records
establish that Petitioner reported a right arm Tdap vaccination to Nurse Marlow and Dr.
Wantland just three days after vaccination - and his report was not rebutted nor
discounted. On the contrary, Dr. Wantland expressed concern that Petitioner had a
vaccine reaction with localized inflammation due to the “high immunogenicity of Tdap
vaccine.” Ex. 16 at 37. I also note that an error by Nurse Marlow in correctly recording the
vaccines’ situses when first administered does not render her entirely mistaken,
unreliable, or unknowledgeable as to other matters. And it is always understood in
Program cases that medical records are not presumptively accurate or complete, even if
they are entitled to some weight. See Kirby v. Sec’y of Health & Human Servs., 993 F.3d
1378, 1382-83 (Fed. Cir. 2021). Thus, even though Petitioner’s recounting of what he
recalls Nurse Marlow saying may have a hearsay quality, this only means that the weight
it is given should be slightly diminished – not that it should receive no weight at all.
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Second, Respondent suggests that Petitioner has cherry-picked parts of the
vaccination record, ignoring evidence contrary to his situs contentions. See ECF No. 34
at 5. For example, Petitioner alleges that the record correctly documents his PPSV23 as
administered in his left arm and that it was administered first; yet the times on the initial
administration record indicate that the PPSV23 vaccine was given second. Ex. 1 at 1; Ex.
8 at 1. Respondent submits that “if the Court were to credit the vaccination record . . .
there would be even more reason to discredit the out-of-court statement by Ms. Marlow.”
Id. At the same time, Respondent himself concedes that the overwhelming evidence
indicates that Petitioner was likely vaccinated in both arms – thus offering an independent
basis for giving the initial record less weight than Respondent urges. ECF No. 34 at 2.
And it appears also that Nurse Marlow did not complete editing and/or entering
Petitioner’s vaccination information until an hour after, at 11:28am. Ex. 1 at 1.
All of the above only undermines the weight to be given to the initial vaccination
record that Respondent argues contradicts Petitioner’s situs contention. Records that are
incomplete or inaccurate can be outweighed by later testimony, if such testimony is
“consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing Blutstein
v. Sec’y of Health & Hum. Servs., No. 90- 2808, 1998 WL 408611, at *5 (Fed. Cl. Spec.
Mstr. June 30, 1998)). Here, the erroneous records must be weighed against Petitioner’s
logical explanation of his recollection of vaccine administration, as well as his medical
record report of a right arm Tdap vaccination just three days after vaccination to the same
clinic (Nurse Marlow and Dr. Wantland) at which he received the vaccination. See Ex. 8
¶¶3,7; Ex. 16 at 36. Petitioner also consistently provided the same history to his
orthopedist and physical therapist thereafter. Ex. 2 at 49; Ex. 3 at 11. All of the above
supports Petitioner’s claims preponderantly – and preponderance only means “more likely
than not” as opposed to establishing something to a certainty.
It is certainly true that the initial vaccine administration record contradicts
Petitioner’s contentions. But that record is the only one to do so, and thus lacks later
corroboration – whereas the entire body of medical records following vaccination indicate
administration of the Tdap vaccine in Petitioner’s right arm. Even if Petitioner’s allegations
alone cannot fully rebut the record, they bulwark other contemporaneous evidence.
2. Severity Requirement
Respondent also disputes whether Petitioner’s right shoulder pain and symptoms
persisted for more than six months following vaccination. He contends that Petitioner
was “successfully” discharged from physical therapy on February 12, 2018, two weeks
shy of six months, then “never again sought treatment.” ECF No. 34 at 5. Respondent
discounts Dr. Pitcock’s November 13, 2018 record indicating the continued existence of
Petitioner’s right shoulder limitations, arguing that this does not make up for the absence
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of a treatment history from the ensuing nine months, and that the record is at most
evidence of monitoring of a condition for possible recurrence – making it insufficient to
satisfy the six-month requirement. ECF No. 30 at 7; ECF No. 34 at 5.
These arguments, however, misconstrue the relevant records supporting severity.
First, the February 2018 physical therapy record notes that Petitioner was “trial
discharged” to continue self-management through home exercises on his own. Ex. 2 at
681. The physical therapist specifically observed at this time that Petitioner had yet to
meet his ROM goals of flexion >150 degrees, abduction >165 degrees, and external
rotation >75 degrees, which appear to be his base-line ROM of his left shoulder. Id. at
684. At trial discharge, Petitioner only had 148 degrees of flexion, 154 degrees of
abduction, 63 degrees of external rotation, and function internal rotation. Id. at 680. This
record thus establishes that Petitioner was still experiencing limitations and residual
symptoms at two weeks shy of six-months post-vaccination – not that he was at this time
recovered.
The November 2018 record from the visit to Dr. Pitcock is also more consistent
with severity than Respondent allows. That record establishes that Petitioner reported
lingering discomfort to Dr. Pitcock after working on his shoulder at home, which he had
been instructed to do. See Ex. 4 at 56. He requested that Dr. Pitcock examine his ROM,
and Dr. Pitcock found about 10 degrees of limitation for internal and external rotation. Dr.
Pitcock gave Petitioner home exercises to address these limitations. Id. at 57.
Respondent entirely discounts this record as “monitoring of a condition for possible
recurrence,” but in fact what it shows is that Petitioner was not only still experiencing
residual effects of his shoulder injury (for which he received additional home exercises
from Dr. Pitcock to address the remaining ROM limitations) but that the problems he had
been experiencing in the winter remained.
Overall, the considerable treatment gap (during which time Petitioner attempted
self-care) underscores the extent to which Petitioner’s SIRVA was likely quite mild. But
there is sufficient support, if barely, in this record for the finding that Petitioner experienced
limitations that lingered past February 12, 2018, and into the following months. Thus,
Petitioner has made a preponderant showing – though by mere inches – that he
experienced residual symptoms of right shoulder pain for six months post-vaccination,
sufficient to meet the severity requirement.
Importantly, the fact dispute that I have resolved in Petitioner’s favor also counsels
against a significant pain and suffering award in this case. The evidence establishes a
mild SIRVA that did not interfere in any significant way with Petitioner’s ability to
participate in recreational activities such as half marathons, and that could be treated by
the Petitioner himself. In addition, this case did not involve surgery – meaning that a six-
11

Case 1:20-vv-00398-UNJ Document 37 Filed 03/06/23 Page 12 of 12
figure award, or anything close to that, would not be appropriate. On the contrary, a fair
pain and suffering award should be on the low end of the spectrum. Petitioner is
counseled to fashion any pain and suffering demand to be extremely modest.
C. Other Requirements for Entitlement
In light of the lack of additional objections and my own review of the record, I find
that Petitioner has established all the requirements for a Table SIRVA claim. Specifically,
the record does not reflect a history of prior right shoulder pathology that would explain
Petitioner’s post-vaccination injury. 42 C.F.R. § 100.3(c)(3)(10)(i). There is no evidence
of any other condition or abnormality that represents an alternative cause. 42 C.F.R. §
100.3(c)(3)(10)(iii). The shoulder pain began within forty-eight (48) hours after
vaccination. 42 C.F.R. §§ 100.3(a), (c)(3)(10)(ii). The pain and reduced range of motion
were limited to the vaccinated shoulder. C.F.R. § 100.3(c)(3)(10)(iv). Petitioner has not
pursued a civil action or other compensation. Ex. Section 11(c)(1)(E). Thus, Petitioner
has satisfied all requirements for entitlement under the Vaccine Act.
Conclusion
Based on the entire record, I find that Petitioner has established receipt of the
subject vaccination in his right arm, and has satisfied the six-months severity requirement.
In light of the lack of additional objections in Respondent’s Rule 4(c) Report and the
straightforward nature of this case, I recommend that the parties engage in damages
discussions. A scheduling order will be issued shortly for the conveyance of
Petitioner’s demand.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00398-1
Date issued/filed: 2023-06-16
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 5/15/2023) regarding 40 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00398-UNJ Document 44 Filed 06/16/23 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0398V
UNPUBLISHED
MICHAEL WASHBURN, Chief Special Master Corcoran
Petitioner, Filed: May 15, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On April 7, 2020, Michael Washburn filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a tetanus diphtheria acellular pertussis (“Tdap”)
vaccine that was administered on August 28, 2017. Petition at 1. The case was assigned
to the Special Processing Unit of the Office of Special Masters.
On February 6, 2023, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On May 12, 2023, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $45,675.73 (comprised
of $45,000.00 for pain and suffering and $675.73 for past unreimbursable expenses).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00398-UNJ Document 44 Filed 06/16/23 Page 2 of 5
Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the
proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an
award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $$45,675.73 (comprised of $45,000.00 for pain and suffering and
$675.73 for past unreimbursable expenses) in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be available
under Section 15(a).
The Clerk of Court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 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.
2

Case 1:20-vv-00398-UNJ Document 44 Filed 06/16/23 Page 3 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MICHAEL WASHBURN,
Petitioner,
No. 20-398V
v.
Chief Special Master Corcoran
SECRETARY OF HEALTH AND
ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On April 7, 2020, Michael Washburn (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), alleging that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Tdap vaccine administered on August 28, 2017. ECF
No. 1 at 1. On September 16, 2021, petitioner filed a Motion for a Ruling on the Record. ECF
No. 33. Respondent filed his Response to Petitioner’s Motion on October 13, 2021,
recommending that entitlement to compensation be denied. ECF No. 34. On February 6, 2023,
the Court issued a Ruling on Entitlement, finding that petitioner is entitled to compensation.1
ECF No. 36.
1 Respondent has no objection to the amount of the proffered award of damages set forth herein.
Assuming the Chief Special Master issues a damages decision in conformity with this proffer,
respondent waives his right to seek review of such damages decision. However, respondent
reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special
Master’s February 6, 2023, entitlement decision.

Case 1:20-vv-00398-UNJ Document 44 Filed 06/16/23 Page 4 of 5
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $45,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that he incurred past unreimbursable expenses
related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $675.73. See 42 U.S.C. § 300aa-15(a)(1)(B).
Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following2: a lump sum payment of $45,675.73, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Michael Washburn: $45,675.73
2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future lost earnings
and future pain and suffering.
2

Case 1:20-vv-00398-UNJ Document 44 Filed 06/16/23 Page 5 of 5
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
/s/ Zoë R. Wade
ZOË R. WADE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 616-4118
zoe.wade@usdoj.gov
Date: May 12, 2023
3