VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01003 Package ID: USCOURTS-cofc-1_20-vv-01003 Petitioner: Carlos Diaz Filed: 2020-08-12 Decided: 2025-03-28 Vaccine: influenza Vaccination date: 2017-10-11 Condition: shoulder pain and limited range of motion Outcome: compensated Award amount USD: 117992 AI-assisted case summary: Carlos Diaz filed a petition alleging a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine he received on October 11, 2017. The Chief Special Master previously ruled that the vaccine was likely administered in his right arm and that the onset of his shoulder pain occurred on the day of vaccination, satisfying the Table criteria for SIRVA. In this subsequent decision, the court awarded Mr. Diaz compensation for his injuries. The medical records indicate that Mr. Diaz experienced immediate pain and limited range of motion in his right shoulder following the vaccination. He initially sought conservative treatment, including physical therapy, and later underwent surgery approximately 18 months after vaccination. Despite a delay in seeking initial medical care and periods of improvement and recurrence of symptoms, the court found that Mr. Diaz's injury was moderate and warranted compensation. The parties were unable to agree on damages, leading to this decision. The court awarded Mr. Diaz $115,000.00 for actual pain and suffering and $2,992.88 for out-of-pocket expenses, for a total award of $117,992.88. This award was based on a thorough review of the medical records, the duration and severity of his symptoms, the treatment received, and comparisons to similar SIRVA cases. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01003-0 Date issued/filed: 2023-12-05 Pages: 14 Docket text: PUBLIC ORDER/RULING (Originally filed: 11/01/2023) regarding 43 Ruling on Entitlement, Order on Motion for Ruling on the Record ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 1 of 14 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1003V CARLOS DIAZ, Chief Special Master Corcoran Petitioner, Filed: November 1, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 12, 2020, Carlos Diaz filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on October 11, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. For the reasons discussed below, I find that record evidence preponderantly establishes that the vaccine at issue was likely administered in Petitioner’s right arm, the 1 Because this Ruling 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 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 (2018). 1 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 2 of 14 onset of his shoulder pain began on the day of vaccine administration, and that Petitioner has satisfied the remaining requirements for entitlement. I. Relevant Procedural History Over a year after the case was activated, Respondent filed his report defending the case (ECF No. 25). Petitioner then filed additional evidence (ECF Nos. 29, 31), but Respondent maintained his objections (ECF No. 32). Following a status conference, Petitioner filed a motion for a ruling on the record, requesting a finding that his October 11, 2017 flu vaccine was administered in his right arm, and Respondent opposed (ECF Nos. 39, 40). On October 4, 2023, I stated that I intended to rule on onset and entitlement in addition to the situs issue that had been briefed, and allowed the parties to file any additional evidence or briefing on these issues by October 20, 2023 (ECF No. 41). On October 18, 2023, Petitioner filed a brief in support of his motion for a ruling on the record requesting that I rule in his favor on entitlement (ECF No. 42). Respondent did not make any further filings by the October 20 deadline, or to date. The issues of the situs of vaccine administration, the onset of Petitioner’s shoulder pain, and his entitlement to compensation are now ripe for resolution. II. Factual Findings and Ruling on Entitlement A. Legal Standards Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). “Medical records, in general, warrant consideration 2 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 3 of 14 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). To overcome the presumptive accuracy of medical records testimony, a petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment, or a physician may enter information incorrectly or not record everything he or she observes). In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,3 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 he received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation (“QAI”) are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the 3 In summary, a petitioner must establish that he 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 his injury for more than six months, died from his 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. Section 11(c)(1)(A)(B)(D)(E). 3 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 4 of 14 upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (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 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. B. Relevant Factual History This ruling contains only a brief overview of facts relating to the situs of vaccine administration, the onset of Petitioner’s symptoms, and Petitioner’s entitlement to compensation. 4 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 5 of 14 1. Medical Records a. Vaccination Records On October 11, 2017, Petitioner received an intramuscular flu vaccine at a CVS Pharmacy in Enfield, Connecticut. Exs. 1 at 3-4; 13 at 2; 14 at 1-2; 15 at 1-3. Petitioner has filed four vaccine administration records, all of which confirm the date of vaccination. Exhibits 1, 13, 14, and 15. However, two of the records state that the vaccine was administered in Petitioner’s left deltoid (Exs. 1 and 13), while two have handwritten alterations suggesting instead that it was administered in his right (Exs. 14 and 15) – which he alleges. Exhibits 14 and 15 also have handwritten alterations suggesting that the vaccine may have been administered by a different person than stated on Exhibits 1 and 13. Exhibits 1 and 13 are both tabular computer printouts of vaccine administration information that appear to have been obtained through a database or spreadsheet query.4 Exhibit 1, which is certified by a CVS records custodian, states that the flu vaccine was administered in Petitioner’s left deltoid by Christy LaPlante. Ex. 1 at 3-4. The CM/ECF docket text accompanying the filing of Exhibit 13 states that it is the vaccine record obtained pursuant to a subpoena (ECF No. 29-3) (labeled “Exhibit 13 – VAR Pursuant to subpoena”). Exhibit 13 also states that the flu vaccine was administered in Petitioner’s left deltoid by Christy LaPlante. Ex. 13 at 2. Exhibits 14 and 15, on the other hand, are the vaccine consent and administration record - a form that has Petitioner’s name, address, and date of birth typed, with screening questions that were answered by hand. Both also have typed information about the vaccine including the administration date, the name, manufacturer, lot number, and expiration date of the vaccine, the route and situs, and the name of the administering immunizer. Exs. 14, 15. The typed information on the forms states that the vaccine was administered in Petitioner’s left deltoid by “Christy LaPlante, Intern.” Exs. 14 at 2; 15 at 3. However, on both Exhibits 14 and 15, “Left Deltoid” is crossed off by hand and “Right” is handwritten above it. Id. Also on both Exhibits 14 and 15, the name of Ms. LaPlante is crossed off and “Kososki Rph” is handwritten below. Id. Both are signed by hand by the administering immunizer; however the signature is illegible. Id. Both are also signed by hand by Petitioner. Id. Additionally, Exhibit 14 has the word “Copy” handwritten in green 4 Exhibits 1 and 13 each have a legend at the top with the terms a “Request Nbr,” “Run Date,” and stating the dates searched. Exs. 1 at 3; 13 at 2. 5 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 6 of 14 diagonally across both pages; Exhibits 14 and 15 otherwise appear to be virtually identical to one another. Ex. 14 at 1-2. b. Post-vaccination Medical Records Over three months after vaccination, on January 22, 2018, Petitioner saw nurse practitioner (“NP”) Michelle Allyn. Ex. 3 at 22. Petitioner reported that he had right upper arm pain that had begun after a flu shot in October. Id. He described the pain as a sharp, stabbing pain, at a level of eight out of ten. Id. On examination, his right lateral deltoid was tender, and testing of his range of motion was limited due to pain. Id. at 23. He had limited right shoulder active range of motion in forward flexion and arm elevation, with pain at 45 degrees. Id. His right shoulder active elevation/abduction was 45 degrees and painful. Id. He had negative impingement signs on both shoulders. Id. Petitioner was assessed with right shoulder pain, and sent for an ultrasound of his rotator cuff to determine if there was any injury from the flu shot. Id. NP Allyn explained that it “may be coincidental that [Petitioner] received the shot in this arm and is having this pain in the right arm.” Id. A week later (January 29, 2018), Petitioner underwent a right shoulder ultrasound. Ex. 4 at 22. The ultrasound revealed possible tendinosis or tendinopathy of the supraspinatus tendon, with an MRI advised for a more sensitive evaluation. Id. There was no evidence of fluid collection or joint effusion. Id. The following week, on February 5, 2018, Petitioner saw orthopedist Dr. James Mazzara. Ex. 3 at 112. Petitioner told Dr. Mazzara that he had right shoulder pain that began on October 11, 2017 after a flu shot. Id. The pain had gradually and progressively worsened, and was worse with forward elevation. Id. at 112-13. The pain ranged up to seven or eight out of ten. Id. at 113. He now had some stiffness and aching in his shoulder. Id. Dr. Mazzara determined that Petitioner had impingement syndrome of the right shoulder with a glenohumeral internal rotation deficit. Id. He recommended a steroid injection, but Petitioner wanted to try oral anti-inflammatory medication instead. Id. Dr. Mazzara recommended home exercises and formal physical therapy (“PT”). Id. Four days later (February 9, 2018), Petitioner underwent a PT initial evaluation for his right shoulder. Ex. 5 at 57. The record from this evaluation has an injury date of October 11, 2017, with the onset of pain occurring after a flu shot. Id. Petitioner’s pain ranged between five and seven out of ten. Id. Petitioner continued PT through December 6 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 7 of 14 10, 2018. Ex. 5 at 21-60. Petitioner continued to treat with an orthopedist in 2018-19, ultimately undergoing right shoulder surgery in April 2019. Exs. 3 at 83-95; 7 at 31-33. After surgery, he completed another round of PT. Ex. 5 at 3-19. 2. Affidavits Petitioner has submitted two affidavits and two declarations in support of his claim. Exs. 8, 9, 12. Petitioner states that he received the flu vaccine in his right shoulder. Ex. 8 at ¶ 2. The vaccine was administered by pharmacist Michelle Kososki, who he knows because he works at Target Optical next to CVS. Ex. 16 at ¶ 2. Michelle asked which arm he preferred, and he chose the right arm. Id. at ¶ 3. She approached from behind and administered the vaccine in his right shoulder. Id. He recalled it being administered too high and at an awkward angle. Id. Petitioner purports to have experienced immediate pain and discomfort in his right arm. Ex. 8 at ¶ 4. About a week after his vaccination, he walked next door to express his concerns to the pharmacist. Id. She told him that some people have residual soreness for longer periods of time, but the discomfort would eventually subside. Id. About a month after vaccination, he consulted a doctor at his workplace about his continued right arm pain. Id. at ¶ 5. The doctor told him that his father had a similar problem, and the pain took a long time to recede. Id. By December 2017, the pain in Petitioner’s right arm and shoulder had “worsened significantly,” and he realized this was not a normal reaction to a vaccine. Ex. 8 at ¶ 6. The pain became unbearable, and he was unable to brush his hair, perform tasks at work, or change an oil filter in his car. Id. Petitioner stated that he went to CVS in person to request a copy of his vaccine record. Ex. 16 at ¶ 4. A male pharmacist gave him the document that was filed as Exhibit 14, with the word “copy” written across both pages. Id. Petitioner states, “Michelle had crossed out the words ‘left deltoid,’ written in the word ‘right,’ and signed her name.” Id. He returned to CVS on March 10, 2022 to request the original copy of his vaccine consent form. Id. at ¶ 5. He was given the same document, this time without the word “copy” written across the pages. Id. 7 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 8 of 14 Petitioner submitted an affidavit from Marangelis Diaz, his wife. Ex. 9. Ms. Diaz stated that when Petitioner came home after getting his flu vaccine on October 11, 2017, he had a bandage on his right shoulder. Ex. 9 at ¶ 3. “[A] few days” after receiving the vaccine, he began to complain that his right arm pain from the injection had not subsided. Id. at ¶ 4. He could not lift his arm or sleep on his right side. Id. After about a week, he returned to the pharmacy to report his concerns, and was told that the pain would eventually subside. Id. at ¶ 5. However, his pain and limited mobility continued for months, leading Petitioner to realize it would not resolve without medical intervention. Id. Petitioner filed a declaration from Dawn Tyler, his coworker at Target Optical, which whom he shares a desk. Ex. 12. Ms. Tyler stated that a day or two after Mr. Diaz’s vaccination he began complaining of right shoulder pain. Id. at ¶ 3. Petitioner is right handed, and she noted that he became increasingly concerned that his pain was interfering with his daily activities. Id. C. The Parties’ Arguments Petitioner relies on Exhibit 15, as well as treatment records and testimony in the form of affidavits and declarations, to establish his right arm as situs of vaccine administration. Petitioner’s Brief in Support of Motion for a Ruling on the Record, filed Oct. 18, 2023, at *2 (ECF No.42) (“Br.”). The sole mention of a left shoulder administration situs is “the computer-generated immunization history provided by CVS Pharmacy.” Br. at *7. But, Petitioner argues, this kind of administration record does not contain information supplied to facilitate diagnosis and treatment, and therefore should not benefit from the presumption of accuracy given to typical treatment records. Id. Indeed, administration records are created without input or verification from the patient, and cannot always be taken at face value. Id. In addition, Petitioner notes that the vaccine consent form (Ex. 15) “features a hand-written correction to the site of vaccine administration which was signed by the pharmacist . . . a disinterested party to this matter.” Br. at *7. Petitioner views this notation as “cast[ing] significant doubt onto the validity of the site listed on the computer-generated vaccination record and effectively weaken[ing] the evidentiary weight of the record itself.” Id. at *7-8. The remaining treatment records are consistent, however, mentioning Petitioner’s right shoulder injury in the context of his flu vaccination. Id. at *8. No other evidence suggests that the flu vaccine was administered in Petitioner’s left deltoid. Id. 8 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 9 of 14 Affidavit and declaration evidence from Petitioner’s wife and coworker further support a finding that the vaccine was administered in Petitioner’s right deltoid. Id. As to the onset of his shoulder pain, Petitioner argues that the “collective evidence suggests that Petitioner experienced immediate, post-vaccination pain that lasted several days following the immunization and continued to worsen for weeks and then months.” Br. at *10. Although he did not seek medical attention for his shoulder pain until three months later, he also did not see any medical provider for any other ailment during that interim period. Id. at *9-10. And a delay in treatment does not necessarily defeat a Table SIRVA claim, citing Winkle v. Sec’y of Health & Human Servs., No. 20-0485V, 2021 WL 2808993 (Fed. Cl. Spec. Mstr. June 3, 2021). Petitioner argues that it is not required that a petitioner specify the date of vaccination when reporting onset of pain. Br. at *11 (citing Williams v. Sec’y of Health & Human Servs., No. 17-1046V, 2020 WL 3579763, at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2020). He thus maintains that he has established the remaining criteria for a Table SIRVA claim, as well as all statutory requirements, and I should therefore rule that he is entitled to compensation. Br. at *9-13. Respondent counters that Petitioner has failed to present persuasive evidence that he received the flu vaccine in his right arm. Respondent’s Response to Petitioner’s Motion, filed Oct 13, 2022, at *11-12 (ECF No. 40) (“Resp.”). Petitioner’s situs allegations are not supported by contemporaneous medical records, and are contradicted by the vaccination record. Id. Respondent notes that the vaccination record filed as Exhibit 1 is certified, while the vaccination records filed as Exhibits 14 and 15 are not, nor were they produced in response to the subpoena. Id. at *12. Instead, they were filed by Petitioner without an affidavit or other statement from any individual or CVS pharmacy representative explaining the alterations to the records. Id. at *12-13. Respondent also distinguishes cases cited by Petitioner, asserting that the vaccine records in this case “do not appear to be the product of a computer-generated record created from ‘drop-down’ menus,” as was present in the cases Petitioner cites. Resp. at *13. He instead points to other cases in which petitioners presented additional evidence, including a statement from the pharmacist who administered the vaccine, in support of their position that the vaccination record was incorrect. Resp. at *13. Here, Petitioner has not filed “objective evidence” supporting his assertions, and the altered vaccination records filed by Petitioner “are not reliable evidence.” Id. at *13-14. Petitioner has not presented any evidence from CVS, Michelle Kososki, Christy LaPlante, or the male pharmacist mentioned in his affidavit that would explain the change in vaccination situs on Exhibits 14 and 15. Id. at *14. Respondent also argues that Petitioner has not stated 9 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 10 of 14 when he received the first altered record, or explained why the altered records were not filed with the petition. Id. Moreover, Petitioner has not provided objective evidence that the handwritten edits to Exhibits 14 and 15 were actually made by “Michelle.” Id. The two records that are consistent with each other are Exhibits 1 and 13. Id. at *15. Exhibit 1 contains a certificate of authenticity, while Exhibit 13 was produced pursuant to a court order. Id. Respondent acknowledges that subsequent medical records do memorialize a reported correlation between Petitioner’s flu vaccine and the development of his right shoulder pain (thus corroborating a right arm situs of administration), but argues that “those records appear to be based solely on the histories provided by petitioner.” Resp. at *16. As such, Respondent views such evidence as being “based on petitioner’s assertion alone,” suggesting that this falls within the prohibition on a special master making a finding of entitlement to compensation based on a petitioner’s claims alone, unsubstantiated by medical records pursuant to Section 13(a)(1). Id. Respondent also argues that Petitioner has failed to demonstrate that the onset of his symptoms occurred within 48 hours of vaccination. Resp. at *16. Petitioner first reported his injury three months and eleven days after vaccination, at which time he “was vague as to the timing of the onset of his symptoms.” Id. at *16-17. Respondent adds that the impression of Petitioner’s treating physician was that it could have been a coincidence that he received the vaccine in his right arm and later experienced pain in that arm. Id. at *17. Respondent argues that “[n]o additional medical documentation provided by petitioner specifically identifies the timing of the onset of petitioner’s right shoulder pain relative to petitioner’s vaccination,” which in Respondent’s view defeats the claim and warrants dismissal. Id. D. Factual Finding Regarding QAI Criteria for Table SIRVA 1. Situs of Vaccine Administration It is undisputed that Petitioner received a flu vaccine intramuscularly at a CVS Pharmacy in Connecticut. Br. at *2; Resp. at *5. However, the record contains evidence 10 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 11 of 14 that could suggest that the vaccine was administered in either Petitioner’s left deltoid or his right deltoid. Two vaccine records state that the vaccine was administered in Petitioner’s left deltoid. One of these is a certified record, while the other was produced in response to a subpoena. Exs. 1, 13. And there are two vaccine records that appear to have originally stated the vaccine was administered in Petitioner’s left deltoid, but were later altered. Exs. 14, 15. While affidavit evidence asserts these alterations were made by the pharmacist who administered the vaccine, there is nothing from the pharmacist herself to this effect. Moreover, the altered records themselves contain additional alterations as to who administered the vaccines. Given that the purpose of requiring certified records is to ensure that records filed in a case are accurate and complete,5 I determine that the certified vaccine record – Exhibit 1 – should be given somewhat more weight than the other vaccine records. But that does not mean this specific document is definitively correct. I still must weigh all of the evidence and determine what conclusion is supported by a preponderance. Here, several pieces of evidence in Petitioner’s treatment records and affidavit and declaration evidence support a finding that the October 11, 2017 flu vaccine was administered in Petitioner’s right arm, as he alleges, while only Exhibits 1 and 13 suggest that it was not. Thus, when Petitioner first sought care for his right shoulder pain, he reported that the pain began after his October flu shot. Ex. 3 at 22. At his first orthopedist appointment, he again related his right shoulder pain to his October 11, 2017 flu shot. Ex. 3 at 112. And at his PT evaluation for right shoulder pain, he reported an injury date of October 11, 2017 and stated that the onset of his pain occurred after a flu shot. Ex. 5 at 57. In addition, Petitioner’s witness statements provide some additional details about the circumstances of the vaccination. Petitioner has maintained that the pharmacist who administered the vaccine asked which arm he preferred, and he chose the right arm. Ex. 16 at ¶ 2. He further explained that the vaccine was injected into his right arm at an awkward angle, and higher than he thought it should have been. Ex. 8 at ¶ 2; Ex. 16 at 5 Vaccine Guidelines, Section II, Ch.3 (A), available at https://www.uscfc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf (visited Nov. 1, 2023). 11 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 12 of 14 ¶ 3. And Petitioner’s wife stated that when he came home on the day of his flu shot, he had a bandage on his right shoulder. Ex. 9 at ¶ 3. Together, the treatment records and affidavit evidence are sufficient to outweigh the certified vaccine record, and I find that they preponderantly establish that, more likely than not, the flu vaccine was administered into Petitioner’s right arm. This finding is not based on Petitioner’s claims alone, as they are supported by medical records. Ultimately, the fact that the first temporal record sets forth a situs contrary to the Petitioner’s allegations does not mean it deserves the most weight – and enough other trustworthy evidence (discounting the corrected or uncertified records) exists in support of Petitioner’s situs argument to accept it as preponderantly supported. 2. Onset After a review of the entire record, I find, based on a preponderance of the evidence, that more likely than not the onset of Petitioner’s shoulder pain began on the day of vaccination, which is well within the time required for a Table SIRVA. When Mr. Diaz first sought medical care for his shoulder, he related his right upper arm pain to his October flu shot. Ex. 3 at 22. He told his orthopedist that his right shoulder pain began on October 11, 2017 – the date of vaccination – after his flu shot. Ex. 3 at 112. At Petitioner’s PT evaluation, he reported an injury date of October 11, 2017 and stated that the onset of his pain occurred after a flu shot. Ex. 5 at 57. Petitioner stated that he had immediate pain and discomfort in his right arm. Ex. 8 at ¶ 4. About a week after vaccination, he spoke to the pharmacist about his shoulder pain, and was told that some people have residual soreness but that it would eventually subside. Id. About a month after his vaccination, he informally consulted a doctor at his workplace, who told him that the doctor’s father had a similar problem and it took a long time to go away. Id. at ¶ 5. Petitioner’s wife states that a few days after vaccination, Mr. Diaz started to complain that the pain had not subsided – which suggests that the pain was present before that time, and had not gone away as expected. Ex. 9 at ¶ 3. And Petitioner’s coworker stated that he began complaining of right shoulder pain about a day or two after vaccination. Ex. 12 at ¶ 3. While Petitioner delayed seeking care for over three months after vaccination, this is not uncommon in SIRVA cases, and he has provided a reasonable explanation for the delay – that he informally consulted with the pharmacist and a doctor, both of whom told 12 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 13 of 14 him that it may take time for the pain to go away. (He also did not in that intervening time seek other medical care – and thus the record in this case does not establish instances in which he could have obtained medical assistance for his shoulder injury). A treatment delay does not per se outweigh the other evidence supporting a finding that the onset of Petitioner’s right shoulder pain occurred on the day of vaccination. See Buck v. Sec’y of Health & Human Servs., No. 19-1301V, 2023 WL 6213423, at *7 (Fed. Cl. Spec. Mstr. Aug. 23, 2023) (finding onset of pain occurred within 48 hours where the petitioner did not seek care for over three months and noting that a delay in seeking care is relevant to onset, but not dispositive). 3. Other SIRVA QAI Criteria Respondent does not contest the remaining SIRVA QAI criteria, and I find that the record contains preponderant evidence that they are satisfied. Petitioner did not have a history of right arm pain or injury prior to vaccination that would explain his symptoms after vaccination. See Exs. 3 at 1; 11 at 6-8. His pain and reduced range of motion were limited to his right shoulder, where the flu vaccine was administered, and no other condition or abnormality has been identified that would explain his post-vaccination symptoms. See Exs. 3 at 112-13; 4 at 22; 11 at 9-10. E. Other Requirements for Entitlement The record contains preponderant evidence that other requirements for entitlement are satisfied as well. Petitioner received a covered vaccine in the United States. Ex. 1 at 3; 15 at 1-3. He experienced the residual effects of his condition for more than six months. Ex. 3 at 93. He averred that he has not previously collected an award or settlement of a civil action for damages, and there are no civil actions pending. Ex. 8 at ¶ 9. Conclusion Based on my review of the record as a whole, I find that it is more likely than not that Petitioner’s October 11, 2017 flu vaccine was administered in his right arm and the onset of Petitioner’s shoulder pain occurred on the day of vaccination. I find that all other SIRVA Table requirements are met, as are other requirements for entitlement. Therefore, Petitioner’s motion for a ruling on the record that he is entitled to compensation is GRANTED. 13 Case 1:20-vv-01003-UNJ Document 46 Filed 12/05/23 Page 14 of 14 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 14 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01003-1 Date issued/filed: 2025-03-28 Pages: 13 Docket text: PUBLIC DECISION (Originally filed: 02/24/2025) regarding 54 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 1 of 13 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1003V CARLOS DIAZ, Chief Special Master Corcoran Petitioner, Filed: February 24, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 12, 2020, Carlos Diaz filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on October 11, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. Although I ruled in Petitioner’s favor on entitlement (ECF No. 43), the parties were unable to resolve damages. The question of damages has been fully briefed and is ripe for resolution (ECF Nos. 50, 51, 52). For the reasons set forth below, I find that Petitioner 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 (2018). Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 2 of 13 is entitled to a damages award of $115,000.00 for actual pain and suffering, plus $2,992.88 for out of pocket expenses. I. Relevant Facts3 A. Medical Records On October 11, 2017, Petitioner received an intramuscular flu vaccine in his right arm at a CVS pharmacy.4 Ex. 1 at 3-4; Ex. 13 at 2; Ex. 14 at 1-2; Ex. 15 at 1-3. Over three months later (January 22, 2018), Petitioner saw nurse practitioner (“NP”) Michelle Allyn. Ex. 3 at 22. Petitioner complained of right upper arm pain that began after vaccination. Id. He described a sharp, stabbing pain that he rated as eight out of ten. Id. On examination, his right lateral deltoid was tender and he had limited right shoulder active range of motion (“ROM”). Id. at 23. His right shoulder active elevation/abduction was 45 degrees and painful. Id. He had negative impingement signs on both shoulders. Id. Petitioner was assessed with right shoulder pain and sent for an ultrasound of his rotator cuff to determine if there was any injury from the flu shot. Id. NP Allyn explained that it “may be coincidental that [Petitioner] received the shot in this arm and is having this pain in the right arm.” Id. A week later (January 29, 2018), Petitioner underwent a right shoulder ultrasound. Ex. 4 at 22. The ultrasound revealed possible tendinosis or tendinopathy of the supraspinatus tendon, with an MRI advised for a more sensitive evaluation. Id. There was no evidence of fluid collection or joint effusion. Id. The following week, on February 5, 2018, Petitioner saw orthopedist Dr. James Mazzara. Ex. 3 at 112. Petitioner told Dr. Mazzara that he had right shoulder pain that began on October 11, 2017, after vaccination. Id. The pain had gradually and progressively worsened, up to seven or eight out of ten, and was worse with forward elevation. Id. at 112-13. He now had some stiffness and aching in his shoulder. Id. Dr. Mazzara determined that Petitioner had impingement syndrome of the right shoulder with deficits in internal rotation. Id. He recommended a steroid injection, but Petitioner opted to try oral anti-inflammatory medication instead, and home exercises and formal physical therapy (“PT”) were also proposed. Id. Four days later (February 9, 2018), Petitioner underwent a PT evaluation for his right shoulder. Ex. 5 at 57. Petitioner complained of pain in his lateral shoulder that ranged between five and seven out of ten. Id. Activities such as donning a shirt, reaching 3 While I have reviewed the entire record, this decision discusses only the evidence relevant to the parties’ dispute. 4 Although the vaccination records were inconsistent concerning which arm the vaccine was administered in, I previously found that it was most likely administered in Petitioner’s right arm. Diaz v. Sec’y of Health & Human Servs., No. 20-1003, 2023 WL8440873 (Fed. Cl. Spec. Mstr. Nov. 1, 2023). 2 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 3 of 13 overhead, and sleep made his pain worse. Id. On examination, his active ROM was 170 degrees in flexion and abduction for both shoulders. Id. at 58. His right shoulder had reduced strength and positive Neer’s and Hawkins impingement signs. Id. At a PT session ten days later, Petitioner’s right shoulder ROM had worsened to 130 degrees in abduction. Id. at 28. Petitioner attended a total of 20 PT sessions between February 9 and April 30, 2018. Id. at 24-57. At discharge (April 30th), he still rated his pain as seven out of ten, with sharp pains at night, as well as stiffness. Id. at 41. His right shoulder active ROM had improved to 180 degrees in flexion and abduction and 90 degrees in external rotation – which is considered normal ROM for an adult.5 Id. Petitioner continued to follow up with orthopedic physician assistant (“PA”) Karl Neubecker for his right shoulder pain between February and May, 2018. Ex. 3 at 100, 104, 108. On May 7, 2018 – a week after being discharged from PT with normal ROM, but still reporting a pain level of seven out of ten – Petitioner now reported that he was 85-90% improved, and there was “no longer any pain, just a sensation of mild stiffness on occasion.” Id. at 100. There are no treatment records relating to Petitioner’s shoulder between May and September 2018. On July 23, 2018, Petitioner was transported to the emergency department by ambulance, complaining of back pain. Ex. 4 at 1. He explained that he was lifting a truck hitch that morning and believed he lifted it wrong and felt a “pop” in his back. Id. at 4. Since then, he had constant lower right back pain that was worse with movement and bending. Id. That evening he bent down to pick something up and felt increased pain, then had difficulty standing up straight. Id. He did not report any problems with his arm or shoulder. On examination, he had normal ROM in all four extremities, which were non- tender to palpation. Id. He was diagnosed with lumbar strain and discharged with medication. Id. at 5. On October 1, 2018, Petitioner returned to PA Karl Neubecker for his right shoulder adhesive capsulitis. Ex. 3 at 93. PA Neubecker administered a steroid injection in Petitioner’s right glenohumeral joint.6 Id. at 95. Two weeks later (October 15, 2018), Petitioner underwent another PT evaluation for right shoulder pain and stiffness. Ex. 5 at 33. He now reported a pain level of eight out of ten. Id. His right shoulder active ROM had worsened to 90 degrees in flexion and 60 degrees in abduction. Id. at 34. His right shoulder passive ROM was 110 degrees in 5 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in abduction, and 90 to 100 degrees in external rotation. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 88 (F. A. Davis Co., 5th ed. 2016) 6 The October 1st record states that this was Petitioner’s second cortisone injection. Ex. 3 at 95. However, Petitioner’s brief states that he received only one cortisone injection (Br. at 7), and no record of a previous cortisone injection has been filed. 3 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 4 of 13 flexion, 80 degrees in abduction, 35 degrees in external rotation, and 30 degrees in internal rotation. Id. Petitioner attended ten PT sessions between October 15 and December 17, 2018. Ex. 5 at 21-33. At discharge on December 17th, he rated his pain as seven out of ten. Id. at 30. His right shoulder active ROM was 95 degrees in flexion and 80 degrees in abduction. His right shoulder passive ROM was 130 degrees in flexion, 120 degrees in abduction, and 55 degrees in external and internal rotation. Id. Petitioner continued to treat with an orthopedist in 2018-19. Ex. 3 at 83-95. A right shoulder MRI on February 11, 2019 showed mild supraspinatus, infraspinatus, and subscapularis tendinosis, suspected mild biceps tendinosis, and mild arthritis. Ex. 6 at 1- 2. Petitioner decided to undergo surgery for his shoulder. On April 5, 2019, Petitioner underwent a right shoulder arthroscopy with distal clavicle excision, lysis of adhesions, manipulation under anesthesia, and open biceps tenodesis. Ex. 7 at 31-33. There were no complications. Id. at 33. Petitioner attended a post-operative PT evaluation on April 8, 2019. Ex. 5 at 19. He rated his pain as eight out of ten. Id. On examination, his right shoulder passive ROM was 80 degrees in flexion, 60 degrees in abduction, 10 degrees in external rotation, and 40 degrees in internal rotation. Id. By May 24, 2019, Petitioner’s ROM was improving. His right shoulder active ROM was now 125 degrees in flexion, 90 degrees in abduction, 43 degrees in external rotation, and his passive ROM was 155 degrees in flexion, 150 degrees in abduction, 80 degrees in external rotation, and 50 degrees in internal rotation. Id. at 15. Petitioner attended 24 PT sessions between April 8 and July 29, 2019. Ex. 5 at 3- 19. At discharge (July 29, 2019), his right shoulder active ROM was 175 degrees in flexion and abduction and 90 degrees in external rotation, and his shoulder strength was five out of five. Id. at 12. The physical therapist checked a box indicating “Goals Met” as the reason for discharge. Id. However, as to five specific treatment goals, the therapist wrote that four were met, while one (related to active ROM) was only partially met.7 Id. B. Testimonial Statements Petitioner filed two affidavits and two declarations in support of his claim. Exs. 8, 9, 12, 16. Petitioner describes feeling “immediate pain and discomfort” in his right arm after vaccination. Ex. 8 at ¶ 4. When the pain remained after a week, he returned to the pharmacist, who told him that people sometimes have residual soreness, but it would eventually subside. Id. After a month, he consulted a doctor in his office, who told 7 The PT records for this date are silent on Petitioner’s pain level. Ex. 5 at 3, 12. 4 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 5 of 13 Petitioner that the doctor’s father had a similar problem and the pain took a long time to subside. Id. at ¶ 5. By December 2017, Petitioner’s shoulder pain had “worsened significantly” and he knew it was not a normal vaccine reaction. Ex. 8 at ¶ 6. He was unable to brush his hair, perform tasks at work, or change an oil filter in his car. Id. As of June 2020 (when he signed his affidavit), he stated that his shoulder had “not reached its pre-vaccine state and likely never will.” Id. at ¶ 8. He still felt pain and had to be careful how he performed certain tasks, and his range of motion was “not what it used to be.” Id. Marangelis Diaz, Petitioner’s wife, filed an affidavit on his behalf. Ex. 9. Ms. Diaz states that a few days after vaccination, Petitioner began to complain that his arm pain had not subsided. Id. at ¶ 4. He could not lift his arm or sleep on his right side. Id. His pain and limited mobility continued “for months.” Id. at ¶ 5. Dawn Tyler, Petitioner’s coworker, submitted a declaration in support of his claim. Ex. 12. Ms. Tyler states that Petitioner began complaining of right shoulder pain a day or two after vaccination. Id. at ¶ 3. His shoulder worsened to where his motion was restricted, and the pain interfered with his daily activities. Id. She recalls him wearing a sling to work for several weeks after his surgery. Id. at ¶ 4. II. The Parties’ Arguments Petitioner acknowledges that he did not seek care until approximately three months after vaccination, but notes that he complained of moderate to severe pain that he rated as eight out of ten. Petitioner’s Brief in Support of Damages, filed Feb. 8, 2024, at *7 (ECF No. 50) (“Br.”). He continued to have high pain levels ranging from five to eight throughout his treatment course. Br. at *7. He received one steroid injection, was prescribed pain medication, underwent several diagnostic examinations, and attended approximately 29 PT sessions prior to surgery. Id. He underwent surgery about 18 months after vaccination, after which he attended 24 more PT sessions, and ultimately had a good recovery. Id. Petitioner relies on Kestner, Smith, and Monson to justify his requested award.8 He argues that he attended more PT sessions, and had a longer duration of symptoms and higher pain levels, than the petitioner in Kestner. Br. at *6-7. Even considering his initial treatment delay, Petitioner asserts his pain and suffering award should be 8 Kestner v. Sec’y of Health & Human Servs., No. 20-0025V, 2023 WL 2447499 (Fed. Cl. Spec. Mstr. Feb. 3, 2023) (pain and suffering award of $115,000.00); Smith v. Sec’y of Health & Human Servs., No.19- 0745V, 2021 WL 2652688 (Fed. Cl. Spec. Mstr. May 28, 2021) (pain and suffering award of $125,000.00); and Monson v. Sec’y of Health & Human Servs., No. 20-1350V, 2023 WL 2524059 (Fed. Cl. Spec. Mstr. Feb. 8, 2023) (pain and suffering award of $155,000.00). 5 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 6 of 13 comparable to the Smith award. Id. Petitioner acknowledges that he should receive less than the Monson award because, although both cases involved similar initial treatment delays, the Monson petitioner treated for approximately twice the length of time and underwent more cortisone injections (though fewer PT sessions). Id. Respondent cites Hunt, Shelton, and Crawford in support of his proposed award. Respondent’s Response, filed April 10, 2024, at *11 (ECF No. 51) (“Resp.”).9 Respondent asserts that in resolving damages, I should consider Petitioner’s personal circumstances (including his age, other conditions, treatment gaps, pain levels, and impact of injury on his life); physical examination and MRI findings; and the extent and nature of treatment and prognosis. Resp. at *10-11. On the basis of these factors, Respondent argues that I have typically awarded $105,000.00 or less in comparable cases also involving moderate SIRVAs treated by surgery. Id. at *11.10 Respondent also emphasizes that Petitioner waited three months and 11 days before seeking medical care for his shoulder, and that Petitioner’s initial treatment was very conservative. Resp. at *11. By April 30, 2018 – six months after vaccination – Petitioner had “full and pain free ROM,” although the PT records (Ex. 5 at 41) document that Petitioner still reported a pain level of seven on that date.11 Id. And Petitioner reported an 85-90% improvement in his symptoms and no pain (with continuing occasional stiffness) on May 7, 2018. Id. (citing Ex. 3 at 100-02). Petitioner then did not seek care again until nearly five months later. In the interim, he was seen at the emergency department for an injury which Respondent asserts “call[s] into question whether the petitioner’s subsequent pain and treatment was related solely to his vaccine injury.” Resp. at *12. Respondent adds that when Petitioner again sought shoulder treatment in October 2018, his ROM was worse than it had been previously. Id. 9 Hunt v. Sec’y of Health & Human Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (pain and suffering award of $95,000.00); Shelton v. Sec’y of Health & Human Servs., No.19- 0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021) (pain and suffering award of $97,500.00); and Crawford v. Sec’y of Health & Human Servs., No.19-0544V, 2024 WL 1045147 (Fed. Cl. Spec. Mstr. Feb. 5, 2024) (pain and suffering award of $105,000.00). 10 Respondent provides a chart listing his three cited cases and their circumstances, physical findings, and treatment/prognosis. Resp. at *11. Respondent states that unlike the petitioners in Hunt, Shelton, and Crawford, who each had three steroid injections, Mr. Diaz’s “initial course was very conservative, consisting of twenty PT sessions, one prescription for an anti-inflammatory medication, and one steroid injection” – but does not otherwise provide much analysis as to how Petitioner’s case compares to Respondent’s cited cases. Id. 11 The PT records are handwritten and, admittedly, difficult to read. However, the PT discharge summary of April 30, 2018 states that Petitioner reported a pain level of seven out of ten, had “partially met” a goal of pain-free ROM, and had NOT met a goal of having pain at or lower than three out of ten. Ex. 5 at 41. 6 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 7 of 13 Respondent contends that Petitioner’s cases are distinguishable. Resp. at *12-13. The Smith petitioner, for example, sought care for severe pain just three days after vaccination and experienced moderate to severe pain and limitations in motion for approximately eight months before undergoing surgery. Id. at *13. And the Kestner petitioner was seen for shoulder pain just 16 days after vaccination. Id. Respondent adds that the Monson petitioner’s treatment course was more extensive than that of Mr. Diaz, continuing for over four years with 42 PT sessions, four steroid injections, and two MRIs before surgery. Id. at *13-14. Petitioner replies that his treatment course was lengthy, and he exhausted all conservative measures before deciding to move forward with surgery. Petitioner’s Reply Brief, filed April 24, 2024, at *2 (ECF No. 52) (“Reply”). Petitioner distinguishes Respondent’s cases, arguing that Hunt involves a petitioner with a mild to moderate SIRVA who treated for approximately 15 months – with periods of little to no pain – with surgery, 19 PT sessions, an MRI, and three steroid injections. Reply at *3. Although the Hunt petitioner initially reported a high pain level of eight, after her first cortisone injection she often reported milder pain levels between two and five. Id. at *3-4. Petitioner adds that his treatment continued longer than, and he attended double the number of PT sessions as, the Hunt petitioner. Id. at *4. Petitioner disagrees with Respondent’s argument that he should receive less than the Shelton petitioner. Reply at *4. The Shelton petitioner delayed seeking care for much longer – approximately five months – after which that petitioner did not obtain any additional treatment until over three months later. Id. And the Shelton petitioner had met all treatment goals and milestones by 14 months after vaccination – compared to Mr. Diaz, who Petitioner argues not met his goals at discharge over 21 months after vaccination (although I note that the PT discharge record, Ex. 5 at 12, shows that Petitioner had fully met four of his five goals, and partially met the fifth goal). Id. Finally, Petitioner argues that Crawford does little to support Respondent’s suggested damages award and instead shows that an award at or above $105,000.00 is justified, despite an initial treatment delay or even lengthy treatment gap later. Reply at *4-5. III. 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 award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks 7 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 8 of 13 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 compensation requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). 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 & Human 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 & Human 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 (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). 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 & Human 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 my predecessor Chief Special Masters) adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated 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 a Court of Federal Claims decision several years ago. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves 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 590. 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 595. Under this approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although Graves is not controlling of the outcome in this case, it provides reasoned guidance in calculating pain 8 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 9 of 13 and suffering awards – and properly emphasizes the importance in each case of basing damages on the specific injured party’s circumstances. IV. Prior SIRVA Compensation Within SPU12 A. Data Regarding Compensation in SPU SIRVA Cases SIRVA cases have an extensive history of informal resolution within the SPU. As of January 1, 2025, 4,545 SPU SIRVA cases have resolved since the inception of SPU ten years before. Compensation has been awarded in the vast majority of cases (4,397), with the remaining 148 cases dismissed. 2,506 of the compensated SPU SIRVA cases were the result of a ruling that the petitioner was entitled to compensation (as opposed to an informal settlement), and therefore reflect full compensation.13 In only 270 of these cases, however, was the amount of damages determined by a special master in a reasoned decision.14 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 guidance in deciding what similarly-situated claimants should also receive.15 The data for all categories of damages decisions described above reflect the expected differences in outcome, summarized as follows: 12 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. 13 The remaining 1,891 compensated SIRVA cases were resolved via stipulated agreement of the parties without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements, and thus represent a reduced percentage of the compensation which otherwise would be awarded. Because multiple competing factors may cause the parties to settle a case (with some having little to do with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge of the appropriate amount of compensation to be awarded in other SPU SIRVA cases. 14 The rest of these cases resulting in damages after concession were either reflective of a proffer by Respondent (2,206 cases) or stipulation (30 cases). Although all proposed amounts denote some form of agreement reached by the parties, those presented by stipulation derive more from compromise than instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of damages. 15 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or proffer) must still be approved by a special master, such 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 v. Sec’y of Health & Human 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). 9 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 10 of 13 Damages Proffered Stipulated Stipulated16 Decisions by Damages Damages Agreement Special Master Total Cases 270 2,206 30 1,891 Lowest $30,000.00 $5,000.00 $45,000.00 $1,500.00 1st Quartile $67,305.16 $60,000.00 $90,000.00 $32,500.00 Median $89,500.00 $80,000.00 $122,866.42 $50,000.00 3rd Quartile $125,000.00 $107,987.07 $162,000.60 $75,000.00 Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00 B. Pain and Suffering Awards in Reasoned Decisions In the 270 SPU SIRVA cases in which damages were the result of a reasoned decision, compensation for a petitioner’s actual or past pain and suffering varied from $30,000.00 to $215,000.00, with $87,000.00 as the median amount. Only ten of these cases involved an award for future pain and suffering, with yearly awards ranging from $250.00 to $1,500.00.17 In one of these cases, the future pain and suffering award was limited by the statutory pain and suffering cap.18 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 usually experienced this greater pain for three months or less. Most 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 less of physical therapy (“PT”). None required surgery. Except in one 16 Two awards were for an annuity only, the exact amounts which were not determined at the time of judgment. 17 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018). 18 Joyce v. Sec’y of Health & Human Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr. Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A)); see Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the application of the statutory cap before any projected pain and suffering award is reduced to net present value). 10 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 11 of 13 case involving very mild pain levels, the duration of the SIRVA 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. 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 133 PT sessions - occasionally spanning several years, and multiple cortisone injections, were required in these cases. In nine cases, petitioners provided sufficient evidence of permanent injuries to warrant yearly compensation for future or projected pain and suffering. Analysis Overall, Petitioner appears to have suffered a moderate SIRVA. Initially, he experienced pain levels of five to eight out of ten, with moderate ROM restrictions. He treated conservatively with PT and, by approximately seven months after vaccination, he reported an 85-90% improvement with no pain, just lingering stiffness. Ex. 3 at 100. He then did not seek care again for almost five months. However, when he resumed care for his shoulder injury in October 2018, he again complained of moderate to severe pain levels, and now his ROM restrictions were comparable in severity. And this time, PT alone was not sufficient to resolve his condition. Ultimately, he underwent surgery 18 months after vaccination. After surgery, he continued to have moderate to severe pain and ROM limitations. With almost four months of PT, however, his condition improved and he met nearly all of his treatment goals. His treatment ended 21 months after vaccination, and included surgery, a cortisone injection, approximately 54 PT sessions, an ultrasound, MRI, and medication. I find that the evidence does not preponderantly support a finding that Petitioner’s July 2018 emergency department visit had any impact on his shoulder condition. He did not complain of shoulder pain at this visit, and on examination all extremities – including his right shoulder – had normal ROM. However, the fact that his shoulder was asymptomatic at this time is relevant to damages in that it bolsters the evidence that he had a period of relief from pain and ROM limitations. After reviewing the record, the parties’ submissions, and cited cases, I find that the most similar cases cited by the parties are Smith and Crawford. Both of those petitioners underwent surgery and one cortisone injection, as well as similar amounts of PT. 11 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 12 of 13 However, the Smith petitioner’s injury was more immediately severe, as evidenced by Ms. Smith seeking care from her PCP only three days after vaccination, her PCP characterizing her injury as “urgent,” and Ms. Smith repeatedly being placed on medical leave or restricted duty from work. Smith, 2021 WL 2652688, at *4. On the other hand, Mr. Diaz’s injury continued for a longer overall duration than the Smith petitioner – 21 months compared to 13 months. Mr. Diaz and the Crawford petitioner delayed seeking care for similar amounts of time, with Mr. Diaz seeking care a couple of weeks sooner than the Crawford petitioner. Both petitioners underwent surgery and relatively similar amounts of PT. And the petitioners had somewhat similar treatment courses, in that both initially improved with conservative care, but their symptoms returned after a period of time without treatment. The Crawford petitioner did attend somewhat more PT, and had two additional cortisone injections and overall a longer injury duration compared to Mr. Diaz. On the other hand, the Crawford petitioner had lengthy treatment gaps, while Mr. Diaz had only one treatment gap of just under five months. Mr. Diaz’s moderate to severe ROM limitations are noteworthy, and warrant a somewhat greater award. However, his delay in seeking care and overall treatment course (with a lengthy period of relief) tip the scale toward a slightly lower award. Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $115,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering.19 Additionally, I find that Petitioner is entitled to $2,992.88 in out of pocket expenses.20 Based on consideration of the record as a whole and arguments of the parties, I award Petitioner a lump sum of $117,992.88, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). 19 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552 (Fed. Cir. 1994)). 20 The parties jointly concur on the calculation of this sum. Br. at *1; Resp. at 2 n. 1. 12 Case 1:20-vv-01003-UNJ Document 59 Filed 03/28/25 Page 13 of 13 The Clerk of Court is directed to enter judgment in accordance with this Decision.21 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 21 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. 13 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01003-cl-extra-11123242 Date issued/filed: 2025-08-19 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10656655 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1003V CARLOS DIAZ, Chief Special Master Corcoran Petitioner, Filed: July 18, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 12, 2020, Carlos Diaz filed a Petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine administration resulting from an influenza vaccine received on October 11, 2017.Petition at 1. On February 24, 2025, I issued a decision awarding damages to Petitioner following briefing by the parties. ECF No. 54. 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 inf ormation, 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 f rom 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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $35,305.28 (representing $34,677.70 in fees plus $627.58 in attorney’s costs). Application for Attorneys’ Fees, filed Mar. 21, 2025, ECF No. 58. Furthermore, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on April 1, 2025, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 60. Petitioner has not filed a reply. I have reviewed the billing records submitted with Petitioner’s request and find reductions in the amount of fees to be awarded appropriate, for the reasons stated below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. 2 ATTORNEY FEES a. Attorney Hourly Rates The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations and will therefore be adopted. However, attorney Finfer was previously awarded the lesser rate of $330.00 per hour for work performed in 2025. See Olszanicky v. Sec’y of Health & Hum. Servs., No. 23-1026V, Slip Op. 32 (Fed. Cl. Spec. Mstr. April 22, 2025). I find no reason to deviate from the previously awarded rate. Accordingly, I reduce attorney Finfer’s rate to $330.00 per hour for all time billed in 2025, to be consistent with the aforementioned decision. Application of the foregoing reduces the amount of fees to be awarded by $52.00. 3 b. Billing Entries for Administrative Tasks Additionally, a review of the billing records reveals several entries billed on tasks considered administrative in nature. 4 But billing for administrative tasks is not permitted in the Vaccine Program. See Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989) (noting that tasks “primarily of a secretarial and clerical nature ... should be considered as normal overhead office costs included within the attorneys’ fee rates.”). Tasks that are “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Attorneys, thus, may not separately charge for clerical or secretarial work because those charges are overhead for which the hourly rate accounts. See Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983). See also Floyd v. Sec'y of Health & Human Servs., No. 13-556V, 2017 WL 1344623, at *5 (Fed. Cl. Spec. Mstr. Mar. 2, 2017); (stating that secretarial tasks include “scheduling status conferences, organizing exhibits, preparing compact discs, revising a short motion after an attorney’s review, and filing documents through the CM/ECF system”); Silver v. Sec'y of Health & Human Servs., No. 16-1019V, 2018 U.S. 3 This amount consists of reducing attorney Finf er’s rate to what she was previously awarded f or time billed in 2025 and is calculated as f ollows: ($350.00 - $330.00 = $20.00 x 2.60 hours billed in 2025) = $52.00. 4 Billing entries reflecting tasks considered administrative in nature are dated as follows: 2/1/21: “E-file SR.” 5/14/21: “E-File MFE.” 5/20/21 (f our entries: memos to f ile regarding court orders and f iling exhibits); 6/14/21; 7/14/21; 8/13/21; 9/13/21 (two entries); 12/7/21; 12/17/21 (two entries); 2/16/22; 3/29/22 (two entries); 3/31/22; 6/15/22; 7/28/22; 8/29/22; 8/31/22; 10/18/23; 12/1/23; 12/5/23; 1/8/24; 1/9/24; 2/8/24 (two entries); 2/9/24; 2/3/25; 2/25/25 (two entries); 2/27/25 (two entries). These billing entries reflect a cumulative total of $566.70 in f ees claimed f or administrative tasks. See ECF No. 58 at 10 -23. 3 Claims LEXIS 1058, at *15 (Fed. Cl. Spec. Mstr. July 31, 2018) (noting that “‘receiv[ing], review[ing,] and process[ing]’ records and court orders, and noting deadlines, are all clerical tasks.”). Accordingly, fees incurred for such tasks will not be reimbursed. Application of the foregoing reduces the amount of fees to be awarded by $566.70. c. Billing Entries for Briefing on Entitlement and Damages I also note this case required separate briefing regarding entitlement (specifically situs and onset) and damages. See Petitioner’s Motion for a Ruling on the Record, filed Aug. 29, 2022, ECF No. 39; Petitioner’s Brief in Support of Petitioner’s Motion for Ruling on the Record, filed Oct. 18, 2023, ECF No. 42; Status Report, filed Jan. 9, 2024, ECF No. 48 (noting impasse in damages discussions); Petitioner’s Brief in Support of Damages, filed Feb. 8, 2024, ECF No. 50; Petitioner’s Reply Brief in Support of Damages, filed Apr. 24, 2024, ECF No. 52. Petitioner’s counsel expended approximately 13.7 hours drafting the motion for ruling on the record and 13.4 hours drafting the entitlement reply, for a combined total of 27.1 hours briefing entitlement. ECF No. 58 at 17-19. Petitioner’s counsel also expended approximately 14.2 hours drafting the damages brief and 7.6 hours drafting the reply damages brief, for a combined total of 21.8 hours briefing damages. ECF No. 58 at 21-22. Although a greater number of hours than I would usually approve, given that there was little overlap between the entitlement and damages issues which were separately briefed, that the subtotals for the entitlement and damages briefing would be deemed to be reasonable if considered separately, that the amount of compensation awarded was greater than the usual SIRVA case – signaling the more complicated nature of Petitioner’s injury, and that the overall amount of attorney’s fees requested in this case was reasonable, I find this time to have been reasonably incurred. ATTORNEY COSTS Petitioner has otherwise provided supporting documentation for all claimed costs, ECF No. 58 at 25-29. And Respondent offered no specific objection to the rates or amounts sought. ECF No. 60. I have reviewed the requested costs and find them to be reasonable. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT, in part, Petitioner’s Motion for attorney’s fees and costs. I award a total of $34,686.58 (representing 4 $34,059.00 in fees plus $627.58 in attorney’s costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 5