VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00959
Package ID: USCOURTS-cofc-1_20-vv-00959
Petitioner: Marla Miller
Filed: 2020-08-03
Decided: 2023-07-03
Vaccine: influenza
Vaccination date: 2017-11-14
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 82191

AI-assisted case summary:
Marla Miller filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a left shoulder injury related to vaccine administration (SIRVA) caused by the influenza vaccine she received on November 14, 2017. The court found that Ms. Miller was entitled to compensation, as her injury met the criteria for a Table SIRVA. She reported experiencing severe pain in her left arm immediately after the vaccination, waking up with excruciating pain that same night, and seeking medical treatment 16 days later. Her primary care physician diagnosed myositis, likely related to the vaccine, and she subsequently saw an orthopedist who diagnosed impingement syndrome. Ms. Miller underwent two cortisone injections and 24 physical therapy sessions over approximately ten months. The respondent initially contested the timing of the onset of symptoms, arguing it was not corroborated by contemporaneous medical records. However, the court found sufficient evidence, including Ms. Miller's affidavit and subsequent medical records, to establish that her pain began within 48 hours of vaccination, satisfying the Table criteria. The court awarded Ms. Miller $80,000.00 for pain and suffering and $2,191.80 for past unreimbursed out-of-pocket expenses, for a total award of $82,191.80.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00959-0
Date issued/filed: 2022-06-16
Pages: 8
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/29/2022) regarding 38 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0959V
UNPUBLISHED
MARLA MILLER, Chief Special Master Corcoran
Petitioner, Filed: April 29, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Ruling on Entitlement;
Table Injury; Shoulder Injury Related
Respondent. to Vaccine Administration (SIRVA)
Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND RULING ON ENTITLEMENT1
On August 3, 2020, Marla Miller 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 left shoulder injury related to vaccine
administration (“SIRVA”) caused by the influenza (“flu”) vaccine she received on
November 14, 2017. Petition at ¶¶2, 15. The case was assigned to the Special Processing
Unit of the Office of Special Masters (the “SPU”).
1 Because this unpublished 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 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-00959-UNJ Document 43 Filed 06/16/22 Page 2 of 8
For the reasons discussed below, I find that Petitioner has satisfied the
requirements of a Table SIRVA, and is therefore entitled to compensation under the
Vaccine Act.
I. Relevant Procedural History
Soon after filing her petition on August 3, 2020, Ms. Miller filed seven medical
record exhibits and a Statement of Completion. ECF No. 6-7. Petitioner continued to
supplement the record with additional medical records. See ECF No. 13, 17.
On October 4, 2021, Respondent filed a status report indicating that he was willing
to engage in settlement discussions. ECF No. 21. After a short period of negotiation,
however, the parties reached an impasse. ECF No. 26. Accordingly, on February 14,
2022, Petitioner filed a motion for a fact ruling on the issue of onset. ECF No. 30.
In his Rule 4(c) Report (filed on March 16, 2022, in response to Petitioner’s
motion), Respondent argued that Petitioner has failed to provide preponderant evidence
that the onset of her pain occurred within 48 hours of her vaccination. Rule 4(c) Report at
5. Specifically, Respondent maintained that “although Petitioner claims that the onset of
her symptoms was immediate, these claims were not corroborated by the
contemporaneous medical records.” Id. at 6.
Petitioner filed a reply on April 22, 2022 (“Rep.”). ECF 34. Petitioner’s Motion is
now ripe for ruling.
II. Relevant Factual History
a. Pre-Vaccination Medical History
Petitioner’s medical records from prior to her vaccination show no significant
medical conditions, and specifically no injuries to or medical issues with her left shoulder,
neck or arm. See Ex. 6.
b. Post-Vaccination Medical History
Petitioner received the flu vaccine in her left arm at Walgreens Pharmacy in Palm
Springs, Florida on November 14, 2017. Ex. 4 at 5. She first sought medical treatment for
her left shoulder pain from her primary care physician, Dr. Milena Jguenti, at Flagler
Family Medicine, on November 30, 2017 - 16 days after her vaccination. Ex. 2 at 76. Dr.
Jguenti reported that Petitioner complained of “pain in the L arm after flu vaccine 2 weeks
2

Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 3 of 8
ago” and noted restricted range of motion. Id (emphasis added). Dr. Jguenti diagnosed
Petitioner with myositis, “most likely related to reaction to vaccine injection,” and
recommended topical heat application and Voltaren gel. Id.
Ms. Miller returned to her primary care physician on December 19, 2017 for follow-
up treatment for her left arm pain. Ex. 2 at 71. Nurse Practitioner Joann Fritsch, noted
that Petitioner had previously been seen for “L arm pain that started following a flu
injection.” Id. at 74 (emphasis added). She prescribed a Medrol Dosepak and ordered an
MRI to further evaluate. Id. at 71. On December 27, 2017, Petitioner alerted NP Fritsch
that her insurance had denied coverage for the MRI and that xrays needed to be ordered
first. Id. at 70. Petitioner had xrays of her left upper arm on December 29, 2017 and an
MRI on January 8, 2018, both of which were normal. Id. at 85-86, 88. Following her MRI,
Petitioner requested a referral to an orthopedist. Id. at 68.
The next year, Ms. Miller presented to orthopedist, Dr. David Gay, on March 23,
2018, for an evaluation of her left shoulder. Ex. 5 at 54. Dr. Gay recorded that Petitioner
now reported the date of onset as November 14, 2017, and the context of her injury as
“received a flu shot.” Id. Dr. Gay found reduced range of motion and positive impingement
signs and diagnosed impingement syndrome of the left shoulder. Id. at 56. Dr. Gay gave
Petitioner a cortisone injection and noted “significant improvement with post-injection
exam.” Id. Petitioner returned to Dr. Gay on May 7, 2018. Id. at 52. He noted improvement
from the initial injection, performed a second cortisone injection, and referred Petitioner
to physical therapy for six weeks. Id. at 53-54.
Petitioner began physical therapy on May 14, 2018. Ex. 1 at 78. On her intake
form, Ms. Miller responded to the question “how and when the injury/disorder occurred”
with “Nov. 14, 2017 from a flu shot.” Id. at 23. At her initial evaluation, she reported “left
upper arm pain since a flu shot last November that became excruciating.” Id. at 78. She
described pain with reaching and tightness at rest. Id. Upon examination, Petitioner
exhibited “limited shoulder mobility and lateral shoulder pain with all active motions of the
shoulder, limited strength and motor control.” Id. at 79.
Petitioner attended a total of 24 PT sessions and then returned to Dr. Gay for a
follow up appointment on September 26, 2018. Ex. 1; Ex. 5 at 50. Dr. Gay noted that she
had completed “12 weeks of PT with significant improvement.” Id. at 51. Petitioner still
had pain with range of motion. Id. He explained that “there may be an additional 4-6
months of improvement” but recommended no additional treatment. Id. at 52.
There is nothing in the record as it currently stands to show Petitioner has since
obtained further treatment of her left shoulder pain.
3

Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 4 of 8
c. Relevant Affidavit Testimony
Ms. Miller’s Declaration, filed at Exhibit 12, describes the onset of her left shoulder
pain in detail. Specifically, she stated that she “told the pharmacist at the time of the
vaccine that it hurt when he gave it to” her. Ex. 12 at ¶2. She remembered waking up “in
the middle of the night in excruciating pain (10/10)” and being unable to “put any weight
on [her] arm.” Id. She explained that she saw her doctor “after 2 weeks had passed
because the pain wouldn’t let up.” Id.
Ms. Miller described her pain as “severe” for the first six months after her
vaccination, until she began physical therapy. Id. at ¶5. She described her limitations in
“performing many activities for around 9-10 months.” Id. at ¶4.
III. Findings of Fact
A. Authority
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). 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). The Federal Circuit has said that
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 & Human 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 & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, 2005 WL 6117475, at *19.
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Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 5 of 8
The United States Court of Federal Claims has recognized, however, that
“medical records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human
Servs., 42 Fed. Cl. 381, 391 (1998). The Court later outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
Thus, medical records may be outweighed by testimony that is given later in time
that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing
Blutstein v. Sec’y of Health & Human 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 & Human Servs., 569 F.3d 1367,
1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human 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 not only the medical
records, testimony, but also all other “relevant and reliable evidence contained in the
record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also
Burns v. Sec’y of Health & Human 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).
Indeed, as the Federal Circuit recently stated, although later oral testimony that conflicts
with medical records is less reliable, it is appropriate for a special master to credit a
petitioner’s lay testimony where is does not conflict with contemporaneous records. Kirby
v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1382-84 (Fed. Cir. 2021).
5

Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 6 of 8
B. Analysis
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration occurred within 48 hours as set forth in the Vaccine Injury Table
and the second QAI for a Table SIRVA. 42 C.F.R. § 100.3(a) XIV.B.; 42 C.F.R. §
100.3(c)(10)(ii) (required onset for pain listed in the QAI).
Respondent argues that Petitioner has failed to provide preponderant evidence
that the onset of her pain occurred within 48 hours of her vaccination. Rule 4(c) Report at
5. Specifically, Respondent maintains that “although Petitioner claims that the onset of
her symptoms was immediate, these claims were not corroborated by the
contemporaneous medical records.” Id. at 5, 6 (general references to pain “after”
vaccination are insufficiently precise).
In so arguing, Respondent seems to embrace the view that the only way Petitioner
can show she experienced symptoms within 48 hours of vaccination is with
contemporaneous records that state the date of onset with specificity. However, the very
terms of Vaccine Act allow that a “special master … may find the first symptom … of an
injury … occurred within the time period described in the Vaccine Injury Table even
though the occurrence of such symptom … was not recorded” in contemporaneous
medical records. 42 U.S.C. § 300aa-13(b)(2) (emphasis added). Ultimately, resolving how
to weigh the evidence on such matters falls within the purview of the special masters. 42
U.S.C. § 300aa-13.
In addition, the Program’s standard of preponderance means that this kind of fact
issue can be (and often is) resolved in a petitioner’s favor despite a lack of specificity.
Special masters weigh all items of evidence collectively – and although they may give
some items more weight than others, it is the evidence in its totality that “moves the scale,”
as it were. Thus, several reasonable and reliable pieces of evidence supporting a
temporal onset claim may satisfy preponderance even if no single item specifically
records onset being reported literally within the timeframe specified by the Table. Also
relevant is the fact that (in SPU’s experience adjudicating SIRVA claims) injured
petitioners often employ vague temporal language, based on their lack of awareness of
the importance for Program purposes of specificity. This cannot reasonably be held
against petitioners, any more than a delay in seeking treatment (based on the supposition
that the shoulder pain will be transient) should be interpreted as weighing against a
favorable finding.
Taking all of the above into account, there is more than sufficient evidence in this
case to support a finding of 48-hour post-vaccination onset as “more likely than not.” In
multiple post-vaccination medical records, Petitioner consistently reported left shoulder
pain in connection with her vaccination. See Ex. 1, 2, 5. Without fail, Petitioner attributed
6

Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 7 of 8
her injury to the flu vaccine she received on November 14, 2017. And Petitioner’s
orthopedist and physical therapist noted the specific date in records on March 23, 2018,
and May 14, 2018, respectively. Ex. 5 at 54; Ex. 1 at 78. Admittedly, the records from
Petitioner’s first two visits for her left shoulder pain (which occurred closest in time to
vaccination) are more vague, using language like “L arm pain after flu vaccine 2 weeks
ago” (Ex. 2 at 76), or “L arm pain that started following a flu injection” (Id. at 71). But this
language does not, when considered against other records, undermine the determination
that Table onset was met. No record has been offered in which an onset clearly outside
the relevant timeframe was indicated.
In addition to the medical records, Petitioner provided affidavit testimony setting
forth the immediate onset of pain at the time of vaccination, stating that she “told the
pharmacist at the time of the vaccine that it hurt when he gave it to” her. Ex. 12 at ¶2.
Petitioner went on to describe being awoken that same night in “excruciating pain
(10/10).” Id. These witness statements provide enhancing, corroborative detail for the
general notes recorded in the medical records. The Federal Circuit has held that it is
appropriate to credit the lay testimony of a petitioner when said testimony does not conflict
with the medical records. See Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1384 (Fed. Cir. 2021) (affirming special master’s finding of severity based on petitioner’s
testimony in the absence of contemporaneous medical records).
Accordingly, I find there is preponderant evidence to establish the onset of
Petitioner’s pain occurred within 48 hours of vaccination.3
IV. Requirements for Table SIRVA
Because I have determined the onset of her left shoulder pain occurred within 48
hours of vaccination, Petitioner has fulfilled the second of the four QAI Table criteria. See
42 C.F.R. § 100.3(a)(XIV) (Table entry for SIRVA following influenza vaccine); 42 C.F.R.
§ 100.3(c)(10)(ii) (second QAI requirement). To establish that she suffered a Table
SIRVA, Petitioner must satisfy the additional three QAI requirements. 42 C.F.R. §
100.3(c)(10)(i), (iii), (iv).
Respondent has not contested Petitioner’s proof on the other QAI Table criteria.
See Rule 4(c) Report. Further, the record in this case contains no indication that Petitioner
suffered prior left shoulder issues or pain and reduced range of motion outside the left
shoulder. See 42 C.F.R. § 100.3(c)(10)(i), (iii). Nor is there evidence of any other condition
3 I am aware of Petitioner’s frustration that these kinds of objections have held up resolution of the claim.
While I deem Respondent’s position to be in good faith, and arising from facially-imprecise language from
close-in-time records, Respondent should in future cases not permit this kind of objection to obstruct
resolution of a claim that facially is otherwise likely to succeed as a Table claim.
7

Case 1:20-vv-00959-UNJ Document 43 Filed 06/16/22 Page 8 of 8
or abnormality that would explain the left shoulder pain she experienced. See 42 C.F.R.
§ 100.3(c)(10)(iv).
Thus, Petitioner has satisfied all QAI criteria for a Table SIRVA.
V. Additional Requirements for Entitlement
Because Petitioner has satisfied the requirements of a Table SIRVA, she need not
prove causation. Section 11(c)(1)(C). However, she must satisfy the other requirements
of Section 11(c) regarding the vaccination received, the duration and severity of her injury,
and the lack of other award or settlement. Section 11(c)(A), (B), and (D).
The vaccine record shows Petitioner received the flu vaccine in her left arm at a
Walgreens Pharmacy in Florida. Ex. 4 at 5; see Section 11(c)(1)(A) (requiring receipt of
a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the United
States or its territories). Additionally, Petitioner has stated that she has not filed any civil
action or received any compensation for her vaccine-related injury, and there is no
evidence to the contrary. Ex. 3 at ¶4; See Section 11(c)(1)(E) (lack of prior civil award).
Finally, the medical records show that more than six months after vaccination,
Petitioner continued to suffer the residual effects of her SIRVA. See Section 11(c)(1)(D)(i)
(statutory six-month requirement). Petitioner received her vaccination on November 14,
2017. Ex. 4 at 5. Thereafter, she received continuing treatment, with no significant gaps,
through at least September 26, 2018, a period of just over ten months. Ex. 1, 2, 5. Thus,
Petitioner has satisfied all requirements for entitlement under the Vaccine Act.
VI. Conclusion
Based on the entire record in this case, I find that Petitioner has provided
preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is
entitled to compensation in this case. A separate damages order will be issued.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00959-1
Date issued/filed: 2023-07-03
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 06/01/2023) regarding 52 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:20-vv-00959-UNJ Document 53 Filed 07/03/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0959V
UNPUBLISHED
MARLA MILLER, Chief Special Master Corcoran
Petitioner, Filed: June 1, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Injury (SIRVA)
Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 3, 2020, Marla Miller 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 from a shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received
on November 14, 2017. Petition at ¶1, 15. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to compensation in the amount of $82,191.80, representing
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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-00959-UNJ Document 53 Filed 07/03/23 Page 2 of 10
$80,000.00 for actual pain and suffering, plus $2,191.80 for past unreimbursed out-of-
pocket expenses.
I. Relevant Procedural History
Approximately 14 months after this case was initiated, Respondent indicated that
he wished to engage in settlement discussions. ECF No. 21. After two months of
negotiations, however, the parties reached an impasse and Petitioner filed a Motion for a
Fact Ruling. ECF No. 26, 30. A ruling on entitlement was issued on April 29, 2022, finding
that Petitioner was entitled to compensation for her SIRVA injury. ECF No. 38. After a
short period of additional negotiation, the parties were able to resolve only the award for
past unreimbursed out-of-pocket expenses to be paid to Petitioner. ECF No. 44.
Petitioner then filed a Motion for Ruling on damages (“Mot.”), Respondent filed a
responsive memorandum (“Repl.”), and Petitioner filed a reply (“Repl.”). ECF No. 45-48.
I subsequently proposed that the parties be given the opportunity to argue their positions
at a motions hearing, at which time I would decide the disputed damages issues. ECF.
No. 50. That hearing was held on May 26, 2023,3 and the case is now ripe for a
determination.
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) Report.
Petitioner received a flu vaccine in her left arm on November 14, 2017, in Palm
Coast, Florida. Ex. 4 at 4-5. She recalled that she took Tylenol the same day for pain and
that she woke that night with excruciating pain (10/10). Ex. 12 at ¶2.
On November 30, 2017 (16 days post-vaccination), Petitioner presented to her
primary care physician (“PCP”) with complaints of pain in her left arm after her flu vaccine
two weeks prior. Ex.2 at 76. On exam, Petitioner had tenderness over the deltoid muscle
(injection site) and, although she had normal/full passive range of motion without pain,
she was unable to perform active range of motion due to pain. Id. Her treater diagnosed
myositis and prescribed Voltaren gel. Id. She recommended that Petitioner use heat and
return in a week if it had not resolved. Id.
3 At the end of the hearing held on May 26, 2023, I issued an oral ruling from the bench on damages in this
case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the case’s
docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2

Case 1:20-vv-00959-UNJ Document 53 Filed 07/03/23 Page 3 of 10
Petitioner returned to her PCP on December 19, 2017 for her annual exam and
reported no improvement in her left arm pain. Ex. 2 at 74. She was prescribed a Medrol
Dosepak and an MRI was ordered. Id. at 71. Petitioner stated that the Voltaren gel and
Medrol Dosepak reduced her pain to 5-7/10, but that it returned after the course of
steroids ended. Ex. 12 at ¶2. Petitioner was unable to immediately get an MRI because
her insurance required that she have x-rays first. Ex. 2 at 70. She had x-rays of her left
humerus and shoulder on December 29, 2017. Both were normal. Id. at 85-86. She had
an MRI of her left humerus on January 8, 2018, which was also normal. Id. at 88.
On March 28, 2018, Petitioner presented to an orthopedist reporting moderate,
aching pain from her flu shot. Ex. 5 at 54-55. On exam, she had reduced range of motion
and positive impingement signs. Id. at 56. The treater diagnosed impingement syndrome
and administered a cortisone injection. Id. Petitioner returned to the orthopedist less than
two months later, on May 7, 2018, reporting improvement since the previous injection.
Ex. 5 at 52-53. That treater administered a second cortisone injection and referred
Petitioner to physical therapy. Id. at 53-54.
On May 14, 2018, Petitioner presented for an initial physical therapy evaluation.
Ex. 1 at 25. Petitioner reported pain after her flu shot that “became excruciating.” Id. She
noted that the oral steroids had helped but did not last and that she had had two cortisone
injections. Id. She reported that she felt pain of 7/10 while reaching and 2/10 soreness at
rest. Id. Petitioner attended a total of 24 PT sessions through August 15, 2018. Id. at 28-
78. By July 27, 2018 (after more than two months of PT), Petitioner reported 65%
improvement, but that she still had difficulty reaching for her seatbelt. Id. at 39. At her last
visit on August 15, 2018 (after three months of PT), Petitioner reported that the only pain
remaining was in the back of her shoulder. Id. at 29.
Petitioner returned to the orthopedist on September 26, 2018. Ex. 5 at 50. She
reported significant improvement from PT, but still had pain with range of motion (although
the pain was much better). Id. at 51. On exam, Petitioner’s range of motion had improved
and impingement testing was negative. Id. The treater explained that it may take 4-6 more
months “if it follows the normal course for frozen shoulder.” Id.at 52. He did not
recommend additional intervention.
Petitioner did not seek further medical treatment for her shoulder pain. Ex. 12 at
¶3. She stated that after six more months, her shoulder was “much better” with only
occasional pain. Id.
3

Case 1:20-vv-00959-UNJ Document 53 Filed 07/03/23 Page 4 of 10
III. The Parties’ Arguments
a. Petitioner
Ms. Miller seeks an award in the total amount of $92,191.80 consisting of
$90,000.00 as compensation for her pain and suffering, plus $2,191.80 for past
unreimbursable out-of-pocket expenses (a sum that Respondent does not contest). Mot.
at 2, 9. To support her pain and suffering request, Petitioner stressed that her SIRVA
injury caused her severe pain and required a significant course of treatment, including
two cortisone injections, 24 physical therapy treatments, and over a year to resolve. Id.
at 10.
During the hearing and in her brief, Petitioner discussed prior SIRVA cases that
involved injured claimants with similar fact patterns, and thus argued that an award of
$90,000.00 in pain and suffering was reasonable and appropriate given that her
circumstances were comparable.
b. Respondent
Respondent maintains that a pain and suffering award of only $57,500.00 is
appropriate, because Petitioner “sustained a comparatively minor injury and received
conservative treatment.” Resp. at 4-5. Respondent argued that Ms. Miller’s treatment
consisted of two steroid injections and physical therapy, but no narcotic medications or
surgery. Id. at 5.
Respondent distinguished Petitioner’s cited prior SIRVA case and presented other
SIRVA cases as support for his proposed award. Resp. at 5-6.
IV. Legal Standard
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).
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 the 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). The petitioner bears the burden of proof with respect to each element of
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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).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). 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. I.D., 2013 WL 2448125, at *9 (citing 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)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with that of my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated that the special masters would use their accumulated expertise in the field
of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. See Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). The Graves decision maintained that to do so resulted in “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Id. at 589-90. Instead,
Graves assessed pain and suffering by looking to the record evidence, prior pain and
suffering awards within the Vaccine Program, and a survey of similar injury claims outside
of the Vaccine Program. Id. at 593-95. Under this alternative approach, the statutory cap
merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
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possible awards as falling within a spectrum that ends at the cap. While Graves does not
control the outcome of this case, it provides logical guidance that bears on how pain and
suffering is calculated.
V. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have been resolved since the inception of
SPU on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the
remaining 65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
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described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.8
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
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less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
Although some petitioners asserted residual pain, the prognosis in these cases was
positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
VI. Appropriate Compensation in this SIRVA Case
a. Awareness of Suffering
Awareness of suffering is not typically a disputed issue in cases involving SIRVA
– and it does not appear to be here. Based on the circumstances of this case, I find that
Ms. Miller had full awareness of her pain and suffering.
b. Severity and Duration of Pain and Suffering
With respect to the severity and duration of the injury, Ms. Miller’s medical records
and affidavit reveal a moderate, non-surgical SIRVA injury. Ms. Miller was treated by her
PCP and an orthopedist, was prescribed steroid medication, had two cortisone injections,
had x-rays and one MRI, and participated in 24 physical therapy sessions. She described
moderate to severe pain (between 7/10 and 10/10) at the beginning of her injury, which
reduced over the course of treatment. See Ex. 1 at 25; Ex. 12 at ¶2, 5. Ms. Miller treated
her injury for approximately ten months with good results, although she described ongoing
mild symptoms for an additional six months before full recovery. Ex. 12 at ¶4-5. All of the
above suggest that the appropriate award in this case is “below median,” especially given
the absence of any surgical intervention – and neither side has requested that the pain
and suffering component to be awarded should exceed $100,000.00.
Petitioner relied primarily on Bruegging v. Secretary of Health & Human Services,
No 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) in support of her
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proposed award. The Bruegging petitioner was awarded $90,000 in pain and suffering for
a SIRVA injury that caused severe pain for 6-8 months and required two cortisone
injections, an MRI and 12 sessions of occupational therapy. Id. at *1-2. Although
Bruegging is a reasonable comparable decision, Ms. Miller’s severe pain moderated over
the course of her treatment. Further, as Bruegging was decided several years ago (and
at a time when there was a lesser body of reasoned decisions available for comparison),
I give it somewhat less weight than more recent SIRVA decisions.
Respondent cited two cases to support his proposed pain and suffering award of
$57,500: Rayborn v. Secretary of Health & Human Services, No. 18-0226, 2020 WL
5522948 (Fed. Cl. Spec. Mstr. Aug. 14, 2020)9 and Lucchesi v. Secretary v. Health &
Human Services, No. 19-0943, 2021 WL 5119145 (Fed. Cl. Spec. Mstr. Oct. 4, 2021).
Resp. at 5-6. I find Lucchesi to be a fair comparable, but a bit low in result considering
that Ms. Miller’s injury required significantly more PT. Further, Respondent bases his
argument, at least in part, on the fact that the petitioners in Rayborn and Lucchesi had
abnormal findings on their MRIs, while Ms. Miller’s MRI was normal. Resp. at 5-6.
However, Ms. Miller had an MRI of her humerus only, and only x-ray imaging of her
shoulder, which suggests any comparison of findings is not useful in determining Ms.
Miller’s pain and suffering.
In addition to the parties’ proposed comparable cases, I deem the present action
to be factually similar to another recent case: Russano v. Secretary of Health & Human
Servs., No. 18-0392V, 2020 WL 3639804 (Fed. Cl. Spec. Mstr. June 4, 2020). In
Russano, a petitioner sought treatment for her SIRVA 17 days after her vaccination,
initially rated her pain at 8/10 to 9/10, had one MRI and one cortisone injection, and did
23 sessions of physical therapy over an eight-month period. Id. at 1. Ms. Russano was
awarded $80,000 in pain and suffering. Id. at *4. Although Ms. Miller had one additional
cortisone injection and treated for a bit longer than Ms. Russano, Ms. Russano was a
breast cancer survivor, which complicated her recovery from her SIRVA and justified a
slightly higher pain and suffering award. Id. at 3-4. On balance, Russano provides a good
comparable to Ms. Miller’s experience.
Under such circumstances and considering the arguments presented by both
parties at the hearing, a review of the cited cases, and based on the record as a whole, I
find that $80,000.00 in compensation for past pain and suffering is reasonable and
appropriate in this case.
9 The Rayborn petitioner was awarded $55,000 in pain and suffering after a treatment course consisting of
an MRI, one cortisone injection and some occupational therapy after a four-month delay in seeking
treatment. Rayborn, 2020 WL 5522948 at *2-3. It is clear that Ms. Miller’s injury was more severe than that
of the Rayborn petitioner and there was no delay in seeking treatment, making Rayborn clearly
distinguishable.
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c. Award for Past Unreimbursed Expenses
Ms. Miller requests $2,191.80 in past unreimbursable expenses. Mot. at 2.
Respondent does not dispute this sum (See Resp. at 1), and therefore Petitioner is
awarded this sum without adjustment.
CONCLUSION
In light of all of the above, the I award Petitioner a lump sum payment of
$82,191.80, (representing $80,000.00 for Petitioner’s actual pain and suffering and
$2,191.80 for unreimbursable out-of-pocket expenses) in the form of a check payable
to Petitioner, Marla Miller. This amount represents compensation for all damages that
would be available under Section 15(a) of the Vaccine Act. Id.
The clerk of the court is directed to enter judgment in accordance with this
Decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 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.
10