VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00851
Package ID: USCOURTS-cofc-1_20-vv-00851
Petitioner: Analicia Guerrero
Filed: 2020-07-13
Decided: 2022-11-28
Vaccine: HPV
Vaccination date: 2018-09-25
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 71181

AI-assisted case summary:
Analicia Guerrero filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) caused by a human papillomavirus (HPV) vaccine administered on September 25, 2018. The case was assigned to the Special Processing Unit. Petitioner, a flight attendant, reported right shoulder pain starting around October 26, 2018, approximately one month after vaccination, though she also reported instantaneous pain and linked it to the vaccine as early as November 2018. Respondent argued that the onset was too late and that pain radiated beyond the shoulder. The Special Master found that Petitioner met the Table criteria for SIRVA, including onset within 48 hours, no prior shoulder condition, pain limited to the shoulder, and no other explanatory condition. The court awarded $70,000.00 for pain and suffering and $1,181.65 for unreimbursed medical expenses, for a total award of $71,181.65.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00851-0
Date issued/filed: 2022-11-28
Pages: 18
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/27/2022) regarding 38 Ruling on Entitlement,, DECISION of Special Master, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00851-UNJ Document 43 Filed 11/28/22 Page 1 of 18
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-851V
UNPUBLISHED
ANALICIA GUERRERO, Chief Special Master Corcoran
Petitioner, Filed: October 27, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Onset; Human Papilloma Virus
Respondent. (HPV) Vaccine; Shoulder Injury
Related to Vaccine Administration
(SIRVA)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On July 13, 2022, Analicia Guerrero 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by a human papillomavirus (“HPV”) vaccine
administered on September 25, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”).
1 Because this unpublished fact ruling 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 fact 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-00851-UNJ Document 43 Filed 11/28/22 Page 2 of 18
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $71,181.65 in total damages.
I. Relevant Procedural History
Petitioner filed this claim on July 13, 2020, followed by medical records and a
statement of completion on July 14, 2020. ECF Nos. 1, 6, 7, 9. On November 30, 2020,
Respondent filed a status report stating that he had conducted a preliminary review of the
case and did not identify any medical records that appeared to be missing. ECF No. 16.
The only issue identified as possibly disputed was onset. Petitioner filed additional
records and an amended statement of completion on February 2, 2021. ECF Nos. 18-20.
On February 5, 2021, based on Respondent’s assessment, Petitioner’s evidence,
and my own review of this case, I deemed the case appropriate to remain in SPU. ECF
No. 22. I ordered Petitioner to begin preparing a demand, and stated that if this case
remained unreviewed by the summer (around the time of its one-year filing anniversary),
Petitioner would be allowed to file a motion for a ruling on the record.
Because the July 2021 date arrived with no resolution, Petitioner filed a motion for
a ruling on the record and brief in support of damages on July 25, 2021. Petitioner’s
Motion for Ruling on the Record and Brief in Support of Damages (“Mot.”), ECF No. 30.
Petitioner argues therein that she meets the table definition of a SIRVA (id. at 28) and
requests an award of $95,000.00 for actual pain and suffering, plus $4,392.93 for
unreimbursed out-of-pocket expenses. Id. at 43.
Respondent opposed the motion on August 24, 2021. Respondent’s Rule 4(c)
Report and Response to Petitioner’s Motion for a Ruling on the Record (“Opp.”), ECF No.
33. Respondent argues that Petitioner failed to meet the requirements of a Table claim.
Opp. at 10-13. Respondent also objects to responding to Petitioner’s damages claim,
arguing it is premature, but proposing that an award of $55,000.00 for pain and suffering
was more appropriate in this case. Id. at 13, 15. Respondent also objects to Petitioner’s
out-of-pocket expenses. Id.
Petitioner filed a reply on September 7, 2021, addressing Respondent’s
arguments. Petitioner’s Reply Brief in Support of Petitioner’s Motion for Ruling on the
Record and Brief in Support of Damages (“Reply”), ECF No. 34.
II. Petitioner’s Medical Records
Petitioner is a flight attendant for Delta Airlines. See Ex. 4 at 264. On September
25, 2018, she saw her gynecologist, Dr. Shultz, and received an HPV vaccine. Ex. 1 at
19. The vaccination record does not specify in which arm received the vaccine. Ex. 1 at
19, Ex. 2 at 6.
2

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Petitioner first reported right shoulder pain on October 26, 2018, stating in an injury
record to Delta Airlines of “having month long discomfort” in her right shoulder. Ex. 28 at
1-2. Petitioner reported “no exact time or Mechanism of injury” and that “[t]here [sic] weeks
ago it bothered her much more but has progressively gotten better….” Id. at 1. Petitioner’s
range of motion was noted as “fine actively with no limitations,” and she was assessed
with right “shoulder discomfort; possible RTC [Rotator Cuff] Strain.” Id. at 2. A few days
later, on October 30, 2018, Petitioner saw her counselor, Tammy Feigal, and reported
shoulder pain in the rotator cuff area resulting in her stopping weightlifting. Ex. 29 at 1, 2.
Petitioner began a workers compensation claim on November 16, 2018. Ex. 4 at
264. In the injury report, she stated that the date of injury was October 4, 2018 (which if
true would not be consistent with the Table onset requirement), and that she finished a
trip and started to notice pain in her right shoulder and upper arm. Id. She also stated that
her pain level was 6-7 out of 10 based on certain motions, 3 out of 10 at rest, and constant
pain in the “upper back at shoulder blade” with limited range of motion. Id. at 267.3
Later that day, Petitioner saw Christina Lester, N.P., for right shoulder pain. Ex. 5
at 15. Petitioner reported the pain started the first week of October, and that her shoulder
felt tight, achy, with occasional shooting pain to the elbow and wrist. An examination
showed full strength and a normal range of motion but pain with certain movements. Id.
at 16. X-rays were ordered but unremarkable. Id. at 46. Petitioner was assessed with
muscle spasms, right shoulder pain, right arm pain, and neck pain. Id. at 16. She was
prescribed baclofen, prednisone, and referred to physical therapy.
Petitioner started physical therapy on November 21, 2018. Ex. 6 at 16. With regard
to onset, Petitioner now reported it was gradual, with an unknown cause. Id. at 16. She
also described the pain as sharp and aching, rating it as 3/10. Id. Petitioner then saw NP
Lester on November 23, 2018, for an “[i]njury to shoulder. [H]ere for work comp. [N]eeds
paper work filled out to go back to work.” Ex. 5 at 18. Petitioner reported worse pain at
that time and muscle spasms. Id. at 19. She was told to continue with physical therapy
and given medications for pain. Id.
On November 29, 2018, Petitioner saw her gynecologist, Dr. Schultz. Ex. 1 at 24.
She reported that she had “severe arm pain from work injury and maybe HPV vaccine
(occurred same day)….” Ex. 1 at 24.
Petitioner saw NP Lester on November 30, 2018, for a follow-up regarding her right
shoulder. Ex. 5 at 21-22. Petitioner reported pain at that time and stated she “doesn’t feel
3 Petitioner’s workers compensation claim was accepted, and benefits were paid on December 3, 2018.
Ex. 4 at 203.
3

Case 1:20-vv-00851-UNJ Document 43 Filed 11/28/22 Page 4 of 18
that she can go back to work [because] whenever she pushes/pulls/reaches that she
irritates the muscle.” Id. at 21. She was told to continue with physical therapy and referred
Petitioner to chiropractor. Id. at 22.
On December 7, 2018, Petitioner presented to Christie M. Halbe, D.C. for
chiropractic treatment due to “a work injury October 2018.” Ex. 7 at 38. Petitioner reported
that, while her range of motion had improved with physical therapy, her pain had not,
describing it as 3/10. Ex. 7 at 38. Stated injury from work injury. Ex. 7 at 38-40.
Petitioner met with her counselor on December 10, 2018. Ex. 29 at 1, 3. She
reported she was attending physical therapy for her “shoulder/arm” and indicated she
received a vaccine that resulted in extreme nerve pain. Id. at 3. Petitioner again saw NP
Lester on December 21, for a follow-up regarding her right shoulder. Ex. 5 at 26-28.4 She
reported that she was improving (at least 60-70% improved at that time) but could still not
return to work. Id. at 27.
Between November 21, 2018, and January 3, 2019, Petitioner also attended six
physical therapy sessions. Ex. 6 at 16-23. During that time, her pain and symptoms
decreased and she “’improved significantly’ since beginning therapy.” See id. at 12
(record from November 29, 2018, reporting her symptoms were slightly better and “[s]ome
days she [had] been nearly symptoms free.”); id. at 9 (record from December 7, 2018,
stating “overall improvement”); id. at 6-7 (record from December 14, 2018, describing pain
levels at between 1-3 out of 10); id. at 4 (record from January 3, 2019, noting that
Petitioner was “about ‘85%’ back to normal” with pain levels described as 2/10).
On January 10, 2019, Petitioner saw Dr. David Fey, an orthopedic surgeon, for
right neck and shoulder pain. Ex. 8 at 5.5 Petitioner reported that she was “not aware of
any specific injury”, but that she works “as a flight attendant for Delta and she is relating
her symptoms to that work activity.” Id. at 5. An exam showed full strength and a “full
active range of motion of the right and left shoulder although a sense of a very slight
decreased internal rotation of the right vs. left with some slight tightness.” Ex. 8 at 6-7. An
MRI of Petitioner’s cervical spine was unremarkable. Id. at 8.
Petitioner attended eight more chiropractic session in January 2019. Ex. 7 at 6-21.
She showed general, gradual improvement, with some continued weakness. See, e.g.,
id. at 14 (record from January 10, 2019, stating that “overall she improved quite a bit” but
still had discomfort and weakness in her shoulder); id. at 6 (record from January 24, 2019,
4 NP Lester noted that this Petitioner was seen for an injury to her shoulder and “workers compensation
follow up….” Ex. 5 at 26.
5 Dr. Fey noted that the evaluation was “a work comp claim 10/4/18.”
4

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stating “Patient presents today continuing to improve overall” but that her “right arm is still
not as strong as it used to be”).
On February 4, 2019, Petitioner returned to Twin Cities Orthopedics. Ex. 8 at 14.
She again reported that the onset of her symptoms “was around the first week of October
2018” and was related to her work as a flight attendant. She also reported that her
symptoms improved immensely over the past few months, rating her pain as 1 out of 10.
Id. Later that same month, Petitioner attended her last chiropractic treatment with Dr.
Halbe on February 18, 2019. Ex. 7 at 4. At that time, she stated “that she feels she is prior
to injury status” with no pain but “slight tension” in her right upper back. Id.
On February 18, 2019, Petitioner saw PTA Brynne Ambroz at Twin City
Orthopedics. Ex. 8 at 10. Petitioner reported that she “feels she is back to normal” and
rated her pain as 1 out of 10. Id. 2.
Approximately three months later on May 7, 2019, Petitioner began treating with
chiropractor Benjamin Sevlie for various ailments, including upper back pain, arm pain,
arm discomfort, and difficulty sitting down. Ex. 9 at 12. The intake form completed by
Petitioner states “[g]iven vaccine improperly – hit a nerve”. Id. at 18. She now noted her
pain was not constant and characterized it as mild (3 out of 10). Id.6
Petitioner attended another physical therapy sessions on May 30, 2019. Ex. 10.
She reported that she continued to have pain in her elbow and weakness. Id. at 4.
Petitioner also stated that she received a vaccination in September of 2018 and had
experienced shooting pain down her arm. Id.
Several months later, on November 11, 2019, Petitioner saw Susan Haase, CNP,
for a preventive health visit. Ex. 12 at 6. She reported that she received an HPV vaccine
in September of 2018 and “has had pain in the shoulder since that time….” Id. She was
later seen by an orthopedic specialist, Siatta Dunbar, for “chronic posterior arm/tricep pain
that radiates into her hand that began acutely after Gardasil [] injection.” Ex. 13 at 4. The
record also states that Petitioner “[h]ad significant shoulder pain and lack of motion for 1
month after the injection and now is continued with persistent but inconsistent pain.” Id.
X-rays of the cervical spine were unremarkable, and Petitioner was diagnosed with right
cervical radiculopathy, other mononeuropathy, and right arm numbness. Ex. 13 at 4.
Following an EMG study on January 6, 2020, Petitioner saw neurologist Joel
Gedan. Ex. 14 at 4. Dr. Gedan found that Petitioner’s EMG results were consistent with
a “very mild chronic or old injury” to her right radial nerve. Ex. 14 at 4.
6 Petitioner saw Dr. Sevlie fifty-one times between May 7, 2019 and March 11, 2020. Ex. 9 at 3-12
5

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Between November 4, 2020, and March 25, 2021, Petitioner was seen for
additional chiropractic care related to upper back, neck, and low back pain with sciatic
radiation by Erik Coombs, D.C. Ex. 30 at 32, 61-84.
III. Affidavit Evidence
Petitioner submitted two affidavits in support of her claim. Ex. 3 and 21. Petitioner
asserts that she experienced instantaneous pain when the HPV vaccination was
administered on September 25, 2018. Ex. 3 at 3. Petitioner stated that her pain worsened
as her range of motion decreased. Id. at 3. She also states that she filed an “on-the-job
injury” report on November 16, 2018, because her symptoms and pain were worsening
when she performed basic job-related tasks. Id. at 4. Further, Petitioner claims
conversations with her medical providers “made [her] second guess that the vaccine was
the cause of [her] problems” and she did not know if her pain was related to “any incident
at work” so decided to file the injury report. Id. at 5. Petitioner states that when her
symptoms continued that she told Dr. Halbe of her experience with the vaccine. Id.
Petitioner submitted another affidavit on January 26, 2021. Ex. 21. Petitioner
asserts that she mentioned how painful her HPV vaccination was to her roommate on
September 25, 2018, but that she expected it to pass “in a few days.” Id. at 2. Petitioner
further described how her symptoms worsened soon after her vaccination. Id. at 3-4.
Additionally, Petitioner stated that she informed several people of her right shoulder pain,
including her mother, sister (Mandi Potter), friend (Jenna Rains), and Jeffri Foster (a
workout accountability partner). Id. at 4. Petitioner attached text messages to corroborate
her affidavit. See, e.g., id. at 11 (message on October 15, 2018 to Jeffri Foster stating
“about 3 weeks ago, I got that HPV shot” and “my arm has been so messed up…. I can
barely move it or hold weight at times”); id. at 12 (messages on October 17, 2018
indicating Petitioner was discussing her shoulder pain with her mother and linking it to a
vaccination); id. at 13 (message from October 17, 2018 from Petitioner to Mandi Potter
stating that Petitioner got the HPV vaccination and her “arm hasn’t been the same since”);
and id. at 14 (message from October 17, 2018 from Petitioner to Jenna Rains stating
Petitioner got the HPV vaccination and her “arm hasn’t been the same since”).
Petitioner also stated that she filed for workers compensation because her injury
was made worse by work, which is an applicable criterion for a claim. Ex. 21 at 6-7.
Petitioner asserts that she indicated her injury began on October 4, 2018 “because that
was the first day at work that I felt my basic job duties were worsening my preexisting
vaccine shoulder pain and injury.” Id. at 7.
6

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Petitioner filed six affidavits on February 2, 2021, including affidavits from:
Petitioner’s mother, Tina Guerrero (Ex. 22); Petitioner’s father, Wenceslao Guerrero (Ex.
23); a friend and fellow flight attendant, Molly Marriot (Ex. 24); Petitioner’s friend Emily
Pratty (Ex. 25); Petitioner’s roommate at the time she received the HPV vaccination, Kylie
Breezley (Ex. 26); and Jeffri Foster (Ex. 27). These affidavits attempt to corroborate the
onset and course Petitioner’s treatment.
Additionally, Mr. Guerrero’s affidavit explains that he was an insurance claims
adjuster for 40 years and “for the last 30 years, [he] solely handled worker’s
compensations claims.” Ex. 23 at 1. Further, because experiencing an aggravation or
worsening of a preexisting injury is grounds for a claim, Mr. Guerrero encouraged
Petitioner to file a worker’s compensation claim. Id. at 3-4. According to Mr. Guerrero,
Petitioner “never filed for workers compensation benefits because she believed her
shoulder injury was solely caused by her employment” but that “her employment may
have aggravated her shoulder injury….” Id. at 4.
IV. Parties’ Arguments
Petitioner requests that I issue a ruling finding that she is entitled to compensation
for a SIRVA as described in the Vaccine Injury Table. Mot. at 43. Respondent argues that
Petitioner has failed to show she suffered a Table claim because onset of her injury was
not within 48 hours of her vaccination, her pain was not limited to her shoulder but radiated
down her right arm, and that another condition may have caused her symptoms. Opp. at
10-13.
V. Fact Findings and Ruling on Entitlement
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,7 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).
7 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
7

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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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
8

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professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also 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).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Petitioner Had no Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and I find that she has demonstrated a lack of history of pain,
inflammation, or dysfunction of her right shoulder that would explain her symptoms. See
9

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Ex. 3 at 1 (stating that Petitioner had no orthopedic issues in her right arm prior to her
vaccination).
2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of
her Vaccination
The aforementioned medical records, coupled with Petitioner’s witness statements
and corroborating evidence, establish that she experienced symptoms within 48 hours of
her vaccination. Ex. 1 at 24; Ex. 29 at 3; Ex. 10 at 4; Ex. 12 at 6; Ex. 21 at 2; Ex. 25 at 2;
Ex. 26 at 1-2. Although Petitioner’s showing is far from conclusive, and there is ample
evidence going the other way, overall the relevant proof preponderates sufficiently in
Petitioner’s favor to find this element of the claim satisfied.
First, it cannot be meaningfully disputed that the records show that Petitioner
reported shoulder pain sometime within a month of vaccination. The initial reports of
shoulder pain occurred on October 26, 2018. Ex. 28 at 1-2. It is common for individuals
who have experienced a SIRVA injury to delay seeking treatment, thinking the injury will
resolve on its own, since patients are often told by medical providers at the time of
vaccination to expect some soreness and pain for a period of time after. Indeed, Petitioner
was told on several occasions that her pain was likely short-lived.8 Here, delay was not
appreciably long – and the fact that treatment was sought in a relatively short timeframe
is supportive of a close-in-time onset.
Second, Petitioner began to affirmatively and repeatedly linked her shoulder pain
to the HPV vaccine as early as November 29, 2018. See, e.g., Ex. 1 at 24 (record from
Dr. Schultz stating she had “severe arm pain from work injury and maybe HPV vaccine
occurred same day); Ex. 29 at 3 (record from Petitioner’s counselor stating she received
a vaccine that resulted in extreme nerve pain); Ex. 9 at 18 (reporting in an intake form on
May 7, 2019 to Dr. Sevlie that she was given a vaccine improperly); Ex. 10 at 4 (stating
in physical therapy records that she received a vaccination in September of 2018 and had
shooting pain down her arm); Ex. 12 at 6 (reporting to NCP Haase that she received an
HPV vaccine in September of 2018 and “has had pain in the shoulder since that time”).
Onset of Petitioner’s injuries are corroborated by the text messages submitted by
Petitioner linking her arm pain to the HPV vaccine and indicating she experienced arm
pain since the vaccination. For example, Petitioner stated in a text message on October
15, 2018 (approximately three weeks after her HPV vaccination) that “about 3 weeks ago,
I got that HPV shot” and “my arm has been so messed up…. I can barely move it or hold
weight at times”). Ex. 21 at 12 (messages on October 17, 2018, indicating Petitioner was
8 See, e.g., Ex. 21 at 2 (affidavit of Ms. Breezley stating she assured Petitioner that her pain would resolve).
10

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discussing her shoulder pain with her mother and linking it to a vaccination); id. at 13
(message from October 17, 2018 from Petitioner to Mandi Potter stating that Petitioner
got the HPV vaccination and her “arm hasn’t been the same since”); and id. at 14
(message from October 17, 2018 from Petitioner to Jenna Rains stating Petitioner got the
HPV vaccination and her “arm hasn’t been the same since”). Additional evidence of onset
is provided by affidavits of Ms. Breezley (Ex. 26 at 1-2 (Kylie Breezley stating that
Petitioner complained of arm pain the day she received the vaccination)) and Ms. Pratty
(Ex. 25 at 2 (Emily Pratty stating that Petitioner reported arm pain in early October
following her vaccination)).
Respondent argues that Petitioner did not report her pain until more than a month
after her vaccination, and repeatedly stated her pain began in October of 2018. Opp. at
10-11. Respondent cites to numerous records stating her shoulder injury occurred in early
October – hence too long after the September 25th vaccination date. See, e.g initial injury
report in worker’s compensation records (ex. 4 at 264), statements made to NP Lester
(ex. 5 at 15); Dr. Halbe’s records (ex. 7 at 38), and Petitioner’s orthopedic doctor’s records
(ex. 8 at 5). However, Petitioner explained that she was not more specific about the
association temporally because she had questioned whether the vaccine could cause
such an injury, based on conversations with medical providers. Ex. 3 at 5. Further,
Petitioner also stated that her job-related tasks increased her pain and symptoms, and
based on her understanding of worker’s compensation, aggravation of a preexisting injury
was appropriate grounds for filing a claim. Ex. 21 at 7; see also Ex. 23 at 3-4 (Mr.
Guerrero’s affidavit providing additional corroborating evidence).
Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s right shoulder pain was more likely than not
immediate, and thus within 48-hours of vaccination.
3. Petitioner’s Pain was Limited to her Right Shoulder
I also find that there is a preponderance of evidence that Petitioner’s pain was
limited to her right shoulder.
Respondent argues that Petitioner reported pain that “shoots down her arm to the
right hand,” and was thus not limited to her shoulder. Opp. at 12 citing Ex. 8 at 5; Ex. 10
at 6; Ex. 13 at 4; Ex. 14 at 4. Even though the record does establish these instances of
non-shoulder pain complaints, I generally credit Petitioner's argument that her pain
originated in her shoulder and there is no other etiology or source of her injury. Reply at
4. And this is not a case where the bulk of Petitioner's complaints included an area
broader than the shoulder region. On the contrary - the vast majority of records
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concentrate on Petitioner's complaints and treatment for right shoulder pain. See, e.g.,
Ex. 28 at 1-2 (Petitioner reporting “month long discomfort” in her right shoulder and
assessed with possible rotator cuff strain), Ex. 5 at 15 (Petitioner reporting right shoulder
pain, tightness.”); Ex. 5 at 18 (Petitioner seen for “[i]njury to shoulder”). And to the extent
that radiculopathy contributed to Petitioner’s symptoms, subsequent testing either ruled
it out or indicated it was very mild. Ex. 14 at 4.
At most, instances of complaints of pain in an area outside of the shoulder region
are relevant to Petitioner's damages (since they would be likely or arguably
distinguishable from the SIRVA). But they do not defeat an otherwise-meritorious SIRVA
claim – especially where there is ample and preponderant evidence of consistent, primary
shoulder pain. Accordingly, this element of the claim has been met.
4. There is No Other Condition or Abnormality That Would Explain
Petitioner’s Symptoms
The last criteria for a Table SIRVA state that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent argues that an EMG showed a very mild chronic or old injury
to the proximal nerve, and several of Petitioner’s doctors were concerned about
radiculopathy. Opp. at 12-13.
Diagnostic tests do not affirmatively establish there was another condition or
abnormality that caused Petitioner’s symptoms. At best, there may be an additional
comorbidity that contributed to Petitioner’s pain, however that alone does not rule out the
existence of a SIRVA. Further, just as above, evidence of a mild chronic or old injury are
relevant to Petitioner's damages.
Thus, the record contains preponderant evidence establishing that there is no
other condition or abnormality which would explain the symptoms of Petitioner’s right
shoulder injury.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
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The record shows that Petitioner received a flu vaccine intramuscularly in her right
shoulder on September 25, 2018, in the United States. Ex. 1; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for her injury. Ex. 3 at 2; Section 11(c)(1)(E) (lack of prior civil
award).
As stated above, I have found that the onset of Petitioner’s right shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table.
Section 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Further, Petitioner’s pain was limited to her left shoulder
and there are no other conditions that would explain her symptoms. Section 100.3(c)(10).
Therefore, Petitioner has satisfied all requirements for a Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the duration of her
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his or her right shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement). The
records demonstrate, and Respondent does not contest, that Petitioner suffered the
residual effects of her shoulder injury for more than six months. See, e.g., Ex. 12 at 6
(records from November 11, 2019, reporting that Petitioner has had shoulder pain since
her HPV vaccination). Thus, this requirement is also met.
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
VI. Damages
The parties have also briefed damages in this case. Petitioner requests an award
of $95,000.00 for actual pain and suffering, plus $4,392.93 for unreimbursed out-of-
pocket expenses. Mot. at 1. Respondent argues that the record only supports an award
of $55,000.00 for past pain and suffering. Opp. at 15. Further, because Petitioner has not
provided documentation regarding what treatment was covered by worker’s
compensation, Respondent entirely disputes any out-of-pocket award.
A. Legal Standards for Damages Awards
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In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & 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.9
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. In determining appropriate compensation for pain
and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
Citing six prior damages decision awarding between $85,000.00 and
$110,000.00,10 Petitioner requests an award of $95,000.00 for actual pain and suffering.
9 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)).
10 Young v. Sec’y of Health & Hum. Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4,
2019) ($100,000 in pain and suffering); Dhanoa v. Sec’y of Health & Hum. Servs, No. 15-1011V, 2018 WL
1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 in past pain and suffering and
$10,000.00 for future pain and suffering); Cooper v. Sec’y of Health & Hum. Serv., No. 16-138V, 2018 WL
6288181*12 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 in pain and suffering); Kent v. Sec’y
of Health & Human Servs., No. 17-0073V, 2019 WL 5579493 at *2 (Fed. Cl. Aug. 7, 2019) (awarding
$80,000.00 in pain and suffering); Binette v. Sec’y of Health & Hum. Servs., No. 16-731, 2019 WL 1552620
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Mot. at 33-41; Reply at 6-7. She asserts that the severity of her injury is comparable to
Young, Dhanoa, Weber, Kent, Cooper, and Binette. In particular, Petitioner emphasizes
that she suffered from shoulder pain for over three years, sought treatment soon after her
vaccination, and treated through physical therapy, and chiropractor treatments. Mot. at
38-41.
Respondent, by contrast, submits that an award of $55,000.00 is appropriate for
pain and suffering (assuming entitlement is found). Opp. at 13-15. In Respondent’s
reading of the record, Petitioner suffered a comparatively minor injury, receiving only
conservative treatment such as chiropractic care and six physical therapy sessions, but
no surgery or injections. Opp. at 14. Further, approximately five months after her
vaccination Petitioner was “largely back to normal.” Id. Respondent cites to Knauss v.
Sec’y of Health & Hum. Serv., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr.
May 23, 2018). (awarding $60,000.00 for past pain and suffering) in support of his
argument.
The medical records establish that Petitioner suffered a mild SIRVA for
approximately five months, with some lingering pain for an additional three months
thereafter. Petitioner initially reported arm pain on October 26, 2018, approximately one
month after her vaccination. Ex. 2 at 7. Her pain was initially reported as 6-7 out of 10
with motions, but 3 out of 10 at rest. Ex. 4 at 267.
Petitioner attended six physical therapy sessions between November 21, 2018,
and January 3, 2019. During that time, her pain and symptoms decreased and she
“’improved significantly’ since beginning therapy.” See Ex. 6 at 12. By December 14,
2018, Petitioner’s pain was described as only 1-3 out of 10 (id. 6-7), and she reported to
NP Lester that she was at least 60-70% improved by December 21, 2018. Ex. 5 at 27. By
January 3, 2019, Petitioner reported that she was “about ‘85%’ back to normal” with pain
levels described as 2 out of 10. By February 4, 2019, Petitioner reported her symptoms
had vastly improved and her pain was only rated as 1 out of 10. Ex. 8 at 14. On February
18, 2019, Petitioner reported that she felt that she was “back to normal.” Ex. 8 at 2.
However, Petitioner reported in May that she experienced continued pain and weakness
in her arm and shoulder. See Ex. 9 at 12 (describing her pain as 3 out of 10 and constant
on May 30, 2019).11 She also never underwent a surgical procedure, and overall, her
treatment was fairly conservative.
*7 (Fed. Cl. Spec. Mstr. July 8, 2019); Weber v. Sec’y of Health & Hum. Servs., No. 17-399V, 2019 WL
2521540 (Fed. Cl. Apr. 9, 2019) (awarding $85,000.00 in pain and suffering).
11 Petitioner was treated for shoulder pain in 2020, however that may be tangentially related to her SIRVA.
Ex. 12 at 4. Petitioner also treated various ailments including upper back, neck, and lower back pain through
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I give less weight to reports of Petitioner’s discomfort later in 2019, 2020, and 2021.
Prior to that time, she reported an almost complete recovery, but in November of 2019
Petitioner reported pain since her HPV vaccine and was treated for mild or chronic radial
nerve injury. Ex. 12 at 4. Her care with the chiropractor Erik Coombs from November 4,
2020, through March 25, 2021 also appears mostly unrelated as it involved Petitioner’s
upper back, neck, and lower back pain, but does not focus on her shoulder. Ex. 30 at 32,
61-84
These factors indicate that Petitioner’s SIRVA was largely mild for approximately
five months, with some lingering pain for an additional three months. Further, Petitioner’s
treatment was conservative and occurred over approximately nine months, featuring only
six physical therapy sessions, numerous chiropractic visits, x-rays, but no steroid
injections or surgery. While Petitioner did suffer for her injury, her experience was far less
severe than what many other Program petitioners have faced.
Because of the above, the $95,000.00 requested by Petitioner exceeds what would
be just compensation for her suffering. I note that the SIRVA cases cited by Petitioner
involved more significant treatment over longer periods of time. For example, in Cooper
the petitioner’s treatment consisted of thirty-five physical therapy session over two years,
and moderate pain reported for that whole time. Cooper, 2018 WL 6288181 at *12.
Similarly, the Dhanoa petitioner underwent two cortisone injections and twenty-three
physical therapy sessions over seven months. Dhanoa, 2018 WL 1221922 at *6. In
contrast, here Petitioner attended only six physical therapy sessions over a six-week
period, had no cortisone injections, and reported significant improvement soon after she
began treating. Ex. 6 at 16-23.
However, I also disagree with Respondent that this case is most analogous to
Knauss, 2021 WL 2550093 (awarding $60,000.00 for pain and suffering). While both
Petitioner and the injured party in Knauss experienced a mild SIRVA with good recovery,
the Knauss petitioner did not experience the same pain as reported here, and delayed
seeking treatment for three months. Id. At *7. In contrast, the evidence shows Petitioner
was experiencing significant pain soon after her vaccination. I give credit to Petitioner’s
affidavit evidence detailing the initial pain she suffered and her initial reports rating her
pain as 6-7 out of 10.
Petitioner argues that that her pain continued to persist for three years since the
onset of her injury. Reply at 6. However, as discussed above, the period after November
March of 2021, however it is unclear if this treatment was a continuation of her SIRVA care. Ex. 30 at 32,
61-84.
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of 2019 appears, at best, tangentially connected to her SIRVA, especially given that she
reported feeling back to normal as early as February of 2019. I therefore give this
evidence limited weight in calculating a proper pain and suffering award.
Taking all of the above into account, I find that $70,000.00 for pain and suffering
is appropriate in this case.
C. Unreimbursed Out-Of-Pocket Expenses
Additionally, a petitioner may recover “actual unreimbursable expenses incurred
before the date of judgment awarding such expenses which (i) resulted from the vaccine-
related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf
of the person who suffered such injury, and (iii) were for diagnosis, medical or other
remedial care, rehabilitation ... determined to be reasonably necessary.” Section
15(a)(1)(B). Petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer, 1996 WL 147722, at *22-23.
Petitioner seeks $4,392.93 for medical expenses related to her shoulder. Mot. at
41-42. Respondent argues that worker’s compensation paid for some of Petitioner’s
treatment, and that she has not provided documentation explaining why certain expenses
were not covered. Opp. at 15. Petitioner responded that the worker’s compensation claim
was discontinued on January 22, 2019, and therefore all medical expenses incurred after
that date are eligible for reimbursement through Petitioner’s vaccine injury case. Reply at
8.
The expenses Petitioner seeks compensation for include care from May 2019 to
February 2021. Mot. at 41-42. Certain records appear at least related to diagnosis,
medical or other remedial care of Petitioner’s SIRVA, and thus are compensable under
the Vaccine Act. These include the costs incurred for care at Pro Physical Therapy
($300.00), FSOC Burnsville ($501.25), and Certified Medical Evaluations, P.A. ($380.40).
Mot. at 41-42.
However, other treatments, including the chiropractic care, do not appear to have
been associated with her SIRVA. For example, treatment at Apex Family Chiropractic (11
of the 24 items) are not solely, or even primarily, for Petitioner’s arm, but include treatment
for upper back pain and difficulty sitting down. See Ex. 9 at 4, 8, 10, 12 (describing
complaints and problems addressed). Similarly, treatment at Clear Health Chiropractic
was also for various ailments including “upper back pain up into neck, lower back pain
down into legs”. Ex. 30 at 30. Further, it is unclear what care was provided at the Fairview
Heart Clinic on or about January 6, 2020, and how that was related to Petitioner’s SIRVA.
Therefore, based on the current record record, I cannot find that there is preponderant
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evidence that Petitioner’s chiropractic care or care provided at Fairview Heart Clinic is for
her SIRVA, and thus they are not compensable under the Vaccine Act.
Therefore, based on the above, I award $1,181.65 for past unreimbursed expenses,
based upon my calculation of the unreimbursed costs properly attributable to the SIRVA
injury Petitioner experienced.
VII. Conclusion
In view of the record and other submissions of the parties, I find that there
is preponderant evidence that Petitioner has satisfied the Table requirements for a
SIRVA and is entitled to compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $70,000.00 represents a fair and appropriate amount of
compensation for Ms. Guerrero actual pain and suffering. I also grant Ms. Hunt’s
request for $1,181.65 for past unreimbursed medical expenses.12
Accordingly, I approve a Vaccine Program award in the total amount of
$71,181.65, to be made to Petitioner. In the absence of a motion for review filed
pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment
herewith.13
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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)).
13 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.
18