VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01246
Package ID: USCOURTS-cofc-1_20-vv-01246
Petitioner: Kara Couch
Filed: 2020-09-22
Decided: 2022-09-23
Vaccine: influenza
Vaccination date: 2019-09-24
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 55088

AI-assisted case summary:
Kara Couch filed a petition for compensation under the National Vaccine Injury Compensation Program on September 22, 2020, alleging that an influenza vaccine administered on September 24, 2019, caused a shoulder injury related to vaccine administration (SIRVA). The petition was assigned to the Special Processing Unit. Respondent initially suggested the shoulder injury predated the vaccination. Petitioner filed a motion asserting that the SIRVA Table elements were satisfied, which the Special Master initially deemed premature but noted that pre-vaccination shoulder pain appeared temporally remote and unlikely to be fatal to the claim. Settlement discussions reached an impasse. Respondent filed a report opposing compensation, citing prior pain and onset issues. Petitioner filed a reply, and the matter proceeded to adjudication. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on April 7, 2022, finding that Petitioner's shoulder injury was not explained by her prior medical history, that she suffered the onset of shoulder pain within 48 hours of vaccination, and was otherwise entitled to compensation. The ruling noted that Petitioner, then 35 years old, had experienced intermittent chest and shoulder pain in the two years prior to vaccination, attributed to anxiety following her father's death. However, medical records indicated these symptoms resolved by December 2017 and did not recur in the 21 months leading up to the vaccination. Petitioner's post-vaccination pain was localized to her left shoulder and upper arm, persistent, and aggravated by movement, leading to an assessment of localized inflammation. The Special Master found no nexus between the prior pain and the post-vaccination injury. Regarding onset, the ruling acknowledged a medical encounter 14 days post-vaccination that did not mention shoulder pain, but this was for an annual gynecological exam and not expected to address musculoskeletal complaints. A 15-week delay before seeking treatment was noted but did not disprove onset, as Petitioner explained she initially hoped the pain would resolve on its own. Witness affidavits corroborated that the pain began on the day of vaccination and persisted. The Special Master found that the vaccine was administered into the left deltoid, the pain and reduced range of motion were limited to the affected shoulder, residual effects lasted more than six months, and Petitioner had not pursued civil action. All requirements for entitlement under the Vaccine Act were met. Following the entitlement ruling, the parties could not agree on damages. Chief Special Master Corcoran issued a decision awarding damages on August 24, 2022. Petitioner argued for $55,000.00 for actual pain and suffering, citing comparable cases. Respondent argued for no more than $37,500.00, finding Petitioner's experience most analogous to another case but less severe. The Special Master awarded Kara Couch $55,000.00 for actual pain and suffering and $88.38 for unreimbursed expenses, totaling $55,088.38. The decision noted that the injury was considered mild overall, with improvement within the first year after vaccination. The delay in seeking treatment was attributed to the emerging COVID-19 pandemic, which the Special Master found to be a reasonable explanation for Petitioner's choice to perform home-based physical therapy rather than formal physical therapy, especially given the availability of a steroid injection and home exercises. The Special Master found Petitioner's case comparable to prior cases where similar awards were made, considering the initial treatment delay, the course of treatment including a steroid injection and MRI, and the recovery within the first year. Petitioner was represented by John Robert Howie of Howie Law, PC, and Respondent was represented by Alexa Roggenkamp of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran presided over the case.

Theory of causation field:
Kara Couch, age 35, received an influenza vaccine on September 24, 2019. She alleged a shoulder injury related to vaccine administration (SIRVA) as defined by the Vaccine Injury Table. The Special Master found that Petitioner's prior intermittent chest and shoulder pain, attributed to anxiety following her father's death in 2017, resolved by December 2017 and did not explain the post-vaccination left shoulder pain. The Special Master determined that Petitioner experienced the onset of left shoulder pain within 48 hours of vaccination, with pain increasing over subsequent hours, and that this pain persisted. Medical records documented tenderness, pain with movement, and deltoid atrophy, leading to an assessment of rotator cuff tendinitis and subacromial bursitis, later confirmed by MRI showing inflammation. The Special Master found that Petitioner met the Table requirements for SIRVA, including onset within 48 hours, residual effects lasting more than six months, and no civil action pursued. Petitioner was awarded $55,000.00 for pain and suffering and $88.38 for unreimbursed expenses, totaling $55,088.38. The public decision does not describe the specific mechanism of injury or name any medical experts. Petitioner was represented by John Robert Howie and Respondent by Alexa Roggenkamp. Chief Special Master Brian H. Corcoran issued the entitlement ruling on April 7, 2022, and the damages decision on August 24, 2022.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-01246-0
Date issued/filed: 2022-05-20
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/07/2022) regarding 38 Ruling on Entitlement, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1246V
UNPUBLISHED
KARA COUCH, Chief Special Master Corcoran
Petitioner,
v. Filed: April 7, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Ruling on Entitlement; Findings of
Fact; Prior Pain; Onset; Influenza
Respondent. (Flu); Shoulder Injury Related to
Vaccine Administration (SIRVA).
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On September 22, 2020, Kara Couch 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 as a result of an influenza (“flu”) vaccine received
on September 24, 2019, she suffered a shoulder injury related to vaccine administration
(“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at
Preamble. The case was assigned to the Special Processing Unit (“SPU”) of the Office of
Special Masters.
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-01246-UNJ Document 39 Filed 05/20/22 Page 2 of 11
For the reasons discussed below, I find it most likely that Petitioner’s shoulder
injury would not be explained by her prior medical history, that she suffered the onset of
shoulder pain specifically within 48 hours, and that she is otherwise entitled to
compensation. Accordingly, Petitioner’s Motion to Deem the SIRVA Table Elements are
Satisfied (ECF No. 23) is granted.
I. Relevant Procedural History
The petition was filed with all required medical records as well as affidavits from
Petitioner and two other witnesses. The claim was quickly determined to be sufficiently
complete and assigned to the SPU in October 2020.
In February 2021, Respondent provided a preliminary review of the case, asserting
that the medical records suggested that the shoulder injury at issue pre-dated vaccination.
Status Report (ECF No. 19). Petitioner promptly filed a response. Petitioner’s
Memorandum (ECF No. 20). I confirmed that the case would remain in SPU for that time.
Scheduling Order (ECF No. 21).
In April 2021, Petitioner duly transmitted a demand to Respondent (see ECF No.
22), and additionally filed a “Motion to Deem SIRVA Table Elements Are Satisfied.”
Petitioner’s Motion (ECF No. 20). At an April 26, 2021, status conference, the parties were
informed that I would deny the motion without prejudice, since I deemed it somewhat
premature. However, I also noted that from my preliminary review of the case, it appeared
that the pre-vaccination records of shoulder pain were temporally remote, and thus
unlikely to be fatal to that element of her Table SIRVA claim. Additionally, although
Petitioner initially delayed treatment for her post-vaccination shoulder pain, there was
evidence indicating onset within 48 hours. Scheduling Order (ECF No. 25).
Respondent entered into settlement discussions on October 21, 2021, but the
parties reached an impasse just two weeks later. Status Reports (ECF Nos. 31-32). On
December 23, 2021, Respondent filed his formal report opposing compensation based
on the issues mentioned above (prior pain and onset). Rule 4(c) Report (ECF No. 33). I
allowed Respondent to file a supplemental Response addressing Petitioner’s earlier
briefing as well as the affidavits, which were not acknowledged in his report. See
Scheduling Order (ECF No. 34); Response (ECF No. 35). On February 10, 2022,
Petitioner filed a Reply (ECF No. 36). The matter is now ripe for adjudication.
2

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 3 of 11
II. 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). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “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 & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has 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 & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
3

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 4 of 11
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
III. Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits. The
evidence most relevant to my analysis is presented below:
• Petitioner Kara Couch was 35 years old upon receiving the subject vaccination on
September 24, 2019. In the preceding three years, she periodically sought medical
care, which is largely irrelevant (but for what is specifically addressed herein). See
generally Ex. 5, 7.
• On November 12, 2017 (and hence two years prior to the relevant vaccination),
Petitioner attended a primary care appointment to address “anxiety.” Ex. 4 at 4.
Petitioner reported pain that “seemed to shift location – sometimes it is in her
shoulders, sometimes in her throat, sometimes under her ribs, sometimes in the
front of her chest.” Id. The pain was “intermittent… occur[ring] daily or… several
times a week,” and “seem[ed] to last most of the day when [it did] occur.” Id. The
pain had been present “for the past couple of months… since her father died
suddenly of a heart attack at the age of 55.” Id. She denied symptoms with
exercise. Id.
• The physician’s assistant (“PA”) recorded an unremarkable physical exam, without
specifically addressing the shoulders or the musculoskeletal system. Ex. 4 at 4.
The initial assessment was “chest pain, unspecified type.” Id. The PA and a
supervising physician reviewed an EKG, deeming its results inconclusive (“reads
4

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 5 of 11
ST junction depression… we are not seeing this when we read it…”). Id. at 5.
Petitioner was referred to cardiology “due to her family hx [history],” prescribed
Celexa “for anxiety,” and instructed to follow up in four to six weeks. Id.
• On December 1, 2017, Petitioner saw a cardiologist. Ex. 6 at 3. There is no patient
questionnaire or history of present illness; the appointment reason was “chest
discomfort.” Id. The record notes that Petitioner had never smoked cigarettes, but
her father had suffered from premature coronary artery disease. Id. at 4. On a
treadmill exercise test, Petitioner walked for eleven minutes, escalating to 4.2 miles
per hour at a grade of 16%, then stopped either due to fatigue or because she
achieved the target heart rate. Id. at 8, 27. There is no physical exam, assessment,
or plan. The cardiologist instructed Petitioner to follow up in three months, but there
are no further records. Id. at 6.
• At the next medical encounter (a December 20th primary care follow-up
appointment), the same PA recorded that Petitioner’s chest pain, “sensation of
lump in throat,” and stress were improving, without starting the prescription for
Celexa. Ex. 4 at 6. Petitioner opted to “monitor sx [symptoms] for now.” Id. The PA
maintained the assessment of “Chest pain, unspecified type.” Id.
• There is no evidence that Petitioner experienced any of the above complaints, or
left shoulder pain, inflammation, or dysfunction, over the next 21 months.3
• On Tuesday, September 24, 2019, a pharmacy employee administered the subject
flu vaccine into Petitioner’s left deltoid muscle. Ex. 2 at 3.4
• The next medical encounter is from 14 days later, on Tuesday, October 8th, when
Petitioner presented for an annual gynecological examination. Ex. 8 at 8. She
provided a history pertaining to the listed categories of “bowels/ bladder, gyn, sex,
bc, mamm, and pap.” Id. She “denie[d] complaints today” and requested a refill of
one prescription medication. Id. The gynecologist examined her neck, heart, lower
extremities, breasts, abdomen, and pelvis. Id. The encounter was unremarkable
overall and lacked any reference to the left upper extremity. Id. at 8-9.
• The next medical encounter is from 15 weeks and two days post-vaccination, on
Thursday, February 10, 2020, when Petitioner presented to the primary care PA5
to address left shoulder pain present “since the end of September… immediately
following a flu vaccine that was given close to the shoulder joint.” Ex. 4 at 8. The
pain was “constant and occasionally sharp… worse with trying to raise her arm up
3 See, e.g., Ex. 7 at 7-8 (April 27, 2018, urgent care encounter for assessment of upper respiratory
infections); Ex. 8 at 5-7 (July 23, 2018, annual gynecological examination).
4 During the same encounter, the pharmacy employee administered a hepatitis A vaccination into
Petitioner’s right deltoid muscle. Ex. 2 at 2.
5 The same PA saw Petitioner in November 2017 and in February 2020. Ex. 4 at 4-5, 6-7, and 8-9.
5

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 6 of 11
or trying to lift or grab things… pain does not improve much with ibuprofen. She
feels like there is atrophy of the shoulder.” Id.
• On exam, the PA documented tenderness on palpation of the left upper trapezius
and rotator cuff tendons, as well as deltoid atrophy. Ex. 4 at 8. External and internal
rotation of the left shoulder elicited pain. Id. The PA suspected rotator cuff tendinitis
and subacromial bursitis. Id. at 9. She prescribed the non-steroidal anti-
inflammatory drug (“NSAID”) meloxicam; printed materials on exercises for
Petitioner to perform at home; and planned imaging and potentially EMG/NCV
studies if the pain did not improve. Id. That same day, an x-ray of the left shoulder
was unremarkable. Id. at 10.
• The PA ordered a February 18th MRI of the left shoulder which visualized intact
tendons, no abnormal fluid in the subacromial/ subdeltoid bursa, and an intact
acromioclavicular joint. Ex. 10 at 11. The MRI did visualize “a 7 mm osteochondral
lesion involving the lateral aspect of the greater tuberosity with extensive
surrounding marrow edema,” which required clinical correlation. Id.
• On referral from the primary care practice, on March 9th, Petitioner had an initial
consult at Bluegrass Orthopedics. Ex. 9 at 3. Petitioner reported “lateral left
shoulder pain since September… since being injected with a flu shot.” Id.6 On
exam, the left shoulder was painful with movement. Id. at 4. Ryan Patrick Donegan,
M.D., reviewed the MRI and ordered lab work including a rheumatoid panel to rule
out “infection of [or?] any inflammatory process that may be causing this.” Id. at 5.
• One week later, Dr. Donegan recorded that Petitioner was doing about the same,
and that the lab work had been unremarkable. Ex. 9 at 4. He asked a colleague,
Owen McGonigle, M.D., for a second opinion. Id.
• At the second orthopedics consult on March 18th, Petitioner reported that her left
shoulder injury resulted from the September 24th flu vaccination, which was
“administered very proximal on her shoulder.” Ex. 9 at 9, 11. Petitioner reported
that she had pain “immediately after the administration [which…] gradually
increase[ed] over the next several hours until she had significant symptoms.” Id.
Petitioner denied numbness or tingling down the arm. Id.
On exam, Dr. McGonigle recorded mild tenderness to palpation over the bicipital
groove and positive impingement signs. Id. at 12. Dr. McGonigle recorded that the
MRI “show[ed] significant inflammation along the greater tuberosity laterally,” and
that Petitioner’s left shoulder pain was “consistent with shoulder injury related to
6 Within the orthopedics records, the active problems and chief complaint sections refer to the right upper
arm and humerus. Ex. 9 at 3, 7. This is likely incorrect, because the rest of this record, like the rest of the
case file, reflects only concerns and treatment pertaining to Petitioner’s left vaccinated arm.
6

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 7 of 11
vaccine administration (SIRVA).”7 Id. Dr. McGonigle recorded that the limited
available literature supported that this injury can be prolonged, but cortisone
injections may help – and therefore, he proceeded to administer a cortisone
injection to Petitioner. Id. Dr. McGonigle reviewed case reports of arthroscopic
debridement sometimes being beneficial, but he did not believe Petitioner to be a
candidate at that point. Id. Petitioner would follow up in three months. Id.
• At the June 17th follow-up with Dr. McGonigle, Petitioner reported that since
receiving the cortisone injection and performing home exercises, her symptoms
had been “gradually improving.” Ex. 13 at 4. She was currently “about 65 – 70
percent better.” Id. Dr. McGonigle documented improved range of motion and
strength, with decreased pain. Id.
• At the next and final follow-up appointment on September 18th, Dr. McGonigle
reviewed that Petitioner had “not changed much since her last visit.” Ex. 14 at 8.
She had full range of motion and good strength, but persistent aching pain. Id.
After a long discussion about the treatment options including further cortisone
injections, surgical intervention, and formal physical therapy, Petitioner expressed
that she was “managing okay” with home-based therapy. Id. Dr. McGonigle
recorded that according to the available literature on SIRVA, “some people never
did fully recover from this.” Id. He directed Petitioner to follow up as needed. Id.
• Petitioner has not filed any further records, from the orthopedics practice or any
other medical providers, that would evidence any further complaints or treatment
for the injury alleged.
• In an affidavit dated September 22, 2020, Petitioner recalls that her “diffuse chest
pain was radiated into my bilateral shoulders subsided after I began to be able to
manage the profound grief and overwhelming stress I was experiencing from
having just lost my father” in 2017. Ex. 1 at ¶ 3. She states that these symptoms
in 2017 were “entirely different” than her post-vaccination left shoulder pain. Id.
• Petitioner recalls that her pain began immediately upon vaccination and increased
to the point that she left work early that day. Ex. 1 at ¶ 4.8 She initially assumed
that the pain was “routine, albeit much worse” and would “eventually resolve on its
own.” Id. After trying to manage the pain on her own and relying on family members
for assistance with household tasks, after over four months, she finally decided to
7 The available evidence does not demonstrate that Petitioner was aware of SIRVA or the Vaccine Program
at this time. The attorney of record began requesting the medical records on her behalf approximately one
month later. See, e.g., Ex. 4 at 1; Ex. 6 at 2.
8 In his supplemental Response Brief, Respondent requests that Petitioner produce her employment record
from 2019 to verify that she took leave from her employment due to shoulder pain. Response at n. 2.
Respondent also suggests that such evidence would “easily corroborate” her shoulder pain.” Id. at 7. I do
not find such evidence to be material towards resolving entitlement (or for that matter, damages, given that
Petitioner is not seeking reimbursement for lost wages).
7

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 8 of 11
seek medical attention. Id. at ¶¶ 4-7. She also states that she did not discuss her
left shoulder with her gynecologist because such appointments “typically only
discussed female health issues,” and because this encounter occurred only two
weeks after vaccination, at which point she believed the pain would resolve on its
own. Id. at ¶ 5.
• One of Petitioner’s coworkers also filed an affidavit, dated September 13, 2020.
Ex. 10. She recalls that a local pharmacy provided vaccinations at their place of
employment on September 24, 2019. Id. at ¶ 2. She recalls that afterwards,
Petitioner discussed how badly her flu vaccination hurt; how much pain she was
experiencing at the site; and that the vaccination was administered unusually high
on her arm. Id. The coworker also recalls that Petitioner’s pain persisted for “days
and weeks” until she eventually sought medical attention. Id. at ¶ 5.
• Petitioner’s mother, in an affidavit dated September 17, 2020, recalls speaking on
the phone on the day of vaccination about her “excruciating” pain, and helping her
sometime thereafter with household cleaning. Ex. 11.
• In Petitioner’s second affidavit dated January 4, 2021, she avers that she cannot
locate any further non-medical evidence relevant to onset. Ex. 15 at ¶ 15.
IV. First Issue
The first issue to be resolved is whether Petitioner had a “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 administration.” 42 C.F.R. §
100.3(c)(3)(10)(i).
The medical records reflect that prior to vaccination, Petitioner had a several-
month history of intermittent pain which was recorded as being primarily in her chest, but
also “shifted” to her ribs, throat, and bilateral shoulders There is no evidence of
accompanying shoulder “dysfunction,” however. Within the contemporaneous medical
records, Petitioner attributed the pain to acute anxiety following her father’s unexpected
death. Her medical providers accepted that explanation. The very limited medical records
relating to this pre-vaccination health condition suggest that the symptoms resolved in or
around December 2017 and did not resume in the 21 months leading up to her
vaccination. Petitioner’s affidavit merely provides additional support for that conclusion.
In comparison, Petitioner’s post-vaccination pain was limited to her left shoulder
and upper arm, persistent, and worse with movement. She was documented to have
tenderness to palpation and positive impingement signs. The clinical findings coupled
with an MRI of the left shoulder led to an assessment of localized inflammation. She was
8

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 9 of 11
treated with meloxicam and a cortisone injection. Finally, I note that the same primary
care provider treated both complaints and viewed them distinctly – contrary to
Respondent’s contentions that the two complaints are “similar,” Rule 4(c) Report at 5, and
that there is “no medical evidence” to distinguish them, Supplemental Response at 6.
Accordingly, and after reviewing the evidence, there is preponderant support for
Petitioner’s argument that no “nexus” exists between these two isolated medical events -
and therefore the prior pain “would not explain” her post-vaccination injury. Petitioner’s
Motion at 6.
Similarly, Respondent contends that the prior history “suggests” the presence of
another “condition or abnormality… (e.g., NCS/ EMG or clinical evidence or
radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy).” Rule 4(c)
Report at 6; 42 C.F.R. § 100.3(c)(3)(10)(iv). But there is insufficient evidence of such a
condition, let alone one “that would explain” Petitioner’s post-vaccination injury. 42 C.F.R.
§ 100.3(c)(3)(10)(iv). Rather, this set of symptoms is distinguishable.
V. Second Issue
The second issue for resolution is whether Petitioner’s left shoulder pain began
within 48 hours after vaccination, as required for a Table SIRVA. 42 C.F.R. §§
100.3(a)(XIV)(B); (c)(10)(ii).
There is a medical record from 14 days after vaccination that does not document
left shoulder pain – but it pertains to an encounter for an annual gynecological
examination. It would not normally be expected that a medical specialist would check for
complaints well outside of his or her expertise. An “intervening medical encounter with a
specialist (whose practice is generally unrelated to the musculoskeletal system or pain
management) is not enough to disprove onset”. Dempsey v. Sec’y of Health & Hum.
Servs., No. 18-0970, 2021 WL 1080563, at *4 (Fed. Cl. Spec. Mstr. Feb. 17, 2021)
(emphasis in the original), cited in Petitioner’s Reply at 11. In Ms. Couch’s case, this
particular record reflects a focused exam that does not address the shoulder. Thus, this
particular record is not strong proof rebutting Petitioner’s onset allegations.
The fact of a 15-week delay before seeking medical treatment is more troubling –
but it does not disprove onset per se. Petitioner’s Reply at 12 (citing, e.g., O’Leary v.
Sec’y of Health & Hum. Servs., No. 18-584V, 2021 WL 3046617, at *11 (Fed. Cl. Spec.
Mstr. June 24, 2021) and Smallwood v. Sec’y of Health & Hum. Servs., No. 18-291, 2020
WL 2954958, at *10 (Fed. Cl. Spec. Mstr. Apr. 29, 2020) (“[i]t is often common for a SIRVA
petitioner to delay treatment, thinking his/ her injury will resolve on its own.”)). Ms. Couch
explained that she initially hoped that her symptoms would self-resolve. This behavior is
9

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 10 of 11
similar to her waiting “several months” before seeking medical treatment for her chest
pain in 2017. Although this delay does weigh against total injury severity (for purposes of
calculating damages), it does not prevent a favorable onset determination, absent
additional evidence (for example, a medical record identifying onset outside the 48-hour
period, or a much longer delay, punctuated by repeated treater visits where shoulder pain
could more arguably have been addressed).
The medical records consistently reflect a history of left shoulder pain which began
immediately upon vaccination, worsened over the subsequent hours, and persisted for
months. It has been recognized that information contained within medical records,
including “information supplied to… health professionals” is trustworthy, because it is
intended to facilitate diagnosis and treatment and it is generally supplied shortly after the
events in question. Cucuras, 993 F.2d at 1528.9 And Petitioner has provided additional
support by way of supporting witness affidavits, particularly from the coworker who recalls
her complaints beginning on the same day the vaccinations were administered in their
workplace. In the absence of any evidence supporting a contrary onset, I find that onset
was most likely within 48 hours. 42 C.F.R. § 100.3(c)(10)(iii).
VI. Other Table Requirements and Entitlement
In light of the lack of additional objections and my own review of the record, I find
that Petitioner has established the other requirements for a Table SIRVA claim.
Specifically, the vaccine administration record reflects the site of administration as the left
deltoid. Sections 11(c)(1)(A) and (B)(i); Ex. 2 at 3, 4. Petitioner’s pain and reduced range
of motion were limited to the affected shoulder. C.F.R. § 100.3(c)(3)(10)(iii). She suffered
residual effects of the injury for more than six months. Section 11(c)(1)(D)(i); Ex. 14 at 8.
She has not pursued a civil action or other compensation. Ex. 1 at ¶ 12; Section
11(c)(1)(E). Thus, she has satisfied all requirements for entitlement under the Vaccine
Act.
9 Respondent also suggests that Petitioner must produce “objective findings from a physician documenting
the presence of shoulder pain in the days immediately following vaccination.” Response at 7. I have
previously rejected this argument. See, e.g., Niemi v Sec’y of Health & Hum. Servs., 19-1535, 2021 WL
4146940, at *4 (Fed. Cl. Spec. Mstr. Aug. 10, 2021) (reasoning that the Vaccine Act “clearly does not
require” such evidence).
10

Case 1:20-vv-01246-UNJ Document 39 Filed 05/20/22 Page 11 of 11
VII. Conclusion and Damages Order
Based on the entire record, I find that Petitioner has provided preponderant
evidence satisfying all requirements for a Table SIRVA. Petitioner is entitled to
compensation. Thus, this case is now in the damages phase.10
Petitioner shall file a status report updating on the parties’ progress towards
informally resolving damages by no later than Monday, May 23, 2022.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 The parties are reminded that in Vaccine Act cases, damages issues are typically resolved
collaboratively. Therefore, the parties should begin actively discussing the appropriate amount of
compensation in this case. In many cases, damages can be resolved by Petitioners communicating a
demand to Respondent, who may agree to the demand or may make a counter-offer.
The parties shall not retain a medical expert, life care planner, or other expert without consulting with
each other and the Chief Special Master. If counsel retains an expert without so consulting in advance,
reimbursement of those costs may be affected.
11 Petitioner previously confirmed that the case does not involve a lost wages claim, a worker’s
compensation claim, or a Medicaid lien. ECF No. 15. On April 5, 2021, she conveyed a demand for pain
and suffering and out of pocket expenses. ECF No. 22. The parties briefly engaged in settlement
discussions before reaching an impasse in fall 2021. Respondent’s attorney of record has since changed.
11

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-01246-1
Date issued/filed: 2022-09-23
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 08/24/2022) regarding 46 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1246V
UNPUBLISHED
KARA COUCH, Chief Special Master Corcoran
Petitioner,
v. Filed: August 24, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 22, 2020, Kara Couch 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 as a result of an influenza (“flu”) vaccine received
on September 24, 2019, she suffered a shoulder injury related to vaccine administration
(“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at
Preamble. The case was assigned to the Special Processing Unit (“SPU”) of the Office of
Special Masters.
1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the opinion will be available to anyone with access to the internet.
In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 2 of 8
Following my ruling on entitlement in Petitioner’s favor in June 2022, the parties
reached an impasse concerning the appropriate award of damages, and thus have
submitted that issue to my final determination. For the following reasons, I find that
Petitioner is entitled to a damages award of $55,088.38 (representing $55,000.00 for
actual pain and suffering, plus $88.38 for actual unreimbursed expenses).
I. Relevant Procedural History and Summary of Parties’ Positions
On April 7, 2022, I found that Petitioner had established that she had suffered a
Table SIRVA. Entitlement Ruling (ECF No. 38).3 After it was determined that the parties
could not resolve damages on their own, I adopted their proposed schedule to brief the
issue – with the focus on an appropriate award for actual pain and suffering. Status Report
(ECF No. 41); Scheduling Order (Non-PDF).
Petitioner argues that her actual pain and suffering merits an award of $55,000.00.
In seeking that amount, she avers that her experience was most similar to that of the
petitioner in Rayborn and more severe than that of the petitioners in Mejias and Ramos.
Brief (ECF No. 43) at 2, 16-23;4 see also Exs. 16-18. Respondent, by contrast, maintains
that the record supports an actual pain and suffering award of no more than $37,500.00.
In proposing this figure, Respondent avers that Ms. Couch’s experience is most
analogous to that of the Ramos petitioner, but less severe. Response (ECF No. 44) at 1,
7-8. On August 1, 2022, Petitioner filed a reply maintaining her previously-stated position.
Reply (ECF No. 45) and accompanying Damages Exhibits 1-4.5 The matter is now ripe
for adjudication.
II. Authority
In a recent decision, I discussed at length the legal standard to be considered in
determining damages and prior SIRVA compensation within SPU. I fully adopt and hereby
3 My prior summary of the prior procedural history and the underlying facts, as set forth in the Ruling on
Entitlement, are fully incorporated and relied upon herein. This decision includes further discussion of facts
that are relevant to the parties’ arguments, as well as my ultimate determination, of the appropriate
damages award.
4 Rayborn v. Sec’y of Health & Hum. Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug.
14, 2020) (awarding $55,000.00 for actual pain and suffering); Mejias v. Sec’y of Health & Hum. Servs.,
No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov. 10, 2021) ($45,000.00); Ramos v. Sec’y of
Health & Hum. Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021) (awarding
$40,000.00).
5 The parties stipulate that Petitioner should be awarded $88.38 for actual unreimbursed expenses. Brief
at 2; Response at 9.
2

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 3 of 8
incorporate my prior discussion in Sections II and III of Friberg v. Sec’y Health & Hum.
Servs., No. 19-1727, 2022 WL 3152827, at *1-4 (Fed. Cl. Spec. Mstr. July 6, 2022).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.6
In her Reply, Petitioner states that the parties’ most significant disagreement is:
“Was the emergence of the COVID-19 pandemic reasonable and sufficient explanation
for Petitioner to perform a self-guided physical therapy course, rather than attending
formal physical therapy, assuming one was even available?” Reply at 1-2; see also
Response at 6-9 and n. 9 (noting the lack of formal PT).
Past cases in the Program have recognized the pandemic as a potentially relevant
factor in assessing severity. See, e.g., Wilson v. Sec’y of Health & Hum. Servs., No. 109-
0035V, 2021 WL 1530731, at n.12 (Fed. Cl. Spec. Mstr. Mar. 18, 2021) (finding that
concerns about the pandemic during 2020 were “reasonable”); M.W. v. Sec’y of Health &
Hum. Servs., No. 18-267V, 2021 3618177, at *4 (Fed. Cl. Spec. Mstr. Mar. 17, 2021)
(recognizing that as a result of the pandemic, “many individuals did not, or could not, seek
medical treatment for many months”); Coli v. Sec’y of Health & Hum. Servs., No. 20-543V,
2022 WL 706882, at *3 (Fed. Cl. Spec. Mstr. Feb. 4, 2022) (in which the petitioner
attended in-person PT until March 2020, after which her therapist offered a virtual forum).
However, even where the pandemic is invoked, my analysis is likely to start with
the contemporaneous medical records and other case-specific evidence. See, e.g.,
Wilson, 2021 WL 1530731, at n.12 (observing that despite asserted concerns about the
pandemic, the petitioner attended one in-person evaluation in the spring of 2020 and did
not pursue further treatment by email or telemedicine); Lavigne v. Sec’y of Health & Hum.
Servs., No. 19-1298V, 2022 WL 2275853, at *6 (Fed. Cl. Spec. Mstr. May 12, 2022)
(“even accounting for COVID, which I credit, there was not an ongoing effort of Petitioner
seeking treatment”).
6 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
3

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 4 of 8
III. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Ms. Couch was a competent adult, with no impairments that would impact his
awareness of her injury. Therefore, I analyze principally the severity and duration of her
injury. In performing this analysis, I have reviewed the record as a whole, including all
medical records, affidavits, declarations, and all other filed evidence, plus the parties’
briefs and other pleadings. I also have taken into account prior awards for pain and
suffering in both SPU and non-SPU SIRVA cases, and I rely upon my experience
adjudicating these cases. However, I base my ultimate determination on the specific
circumstances of this case.
The record establishes that Ms. Couch’s injury was mild overall. At 35 years old,
she was in her “usual state of excellent health.” Brief at 2, quoting Ex. 1 at ¶ 3.7 She
developed pain in her dominant left shoulder within 48 hours after the September 24,
2019, vaccination.
Petitioner did not immediately seek treatment for her injury. But she has noted that
14 days after vaccination, she attended an annual gynecological examination, during
which “it would not normally be expected that a medical specialist would check for
complaints well outside of his or her expertise.” Entitlement Ruling at 9. I also accept
Petitioner’s explanation that she did not alert her gynecologist to what she believed was
“routine, albeit worse, post-vaccination pain which would eventually resolve on its own.”
Ex. 1 at ¶ 5. However, that prevents acceptance of Petitioner’s characterization that the
pain was already “excruciating.” Id. at ¶ 4. Rather, the record establishes that Petitioner’s
pain was persistent but comparatively mild, becoming moderately “sharp” and “wors[e]”
when she tried to raise her arm or lift of grab things. This conclusion is supported by her
initial attempt to self-manage with ibuprofen, coupled with the expectation that the pain
would resolve for over four months, before presenting to her primary care practice on
September 10, 2020. The delay in seeking treatment “weighs against total injury severity.”
Entitlement Ruling at 10.
7 Respondent maintains that Petitioner had a “history of left shoulder pain and dysfunction.” Rule 4(c) Report
at 2; see also Response at 2. In previously reviewing the evidence on this point, I found no evidence of
such “dysfunction.” Ruling on Entitlement at 8. I recognized that Petitioner had a “several month history of
intermittent pain that was recorded as being primarily in her chest, but also ‘shifted’ to her ribs, throat, and
bilateral shoulder,” which she attributed to anxiety. Id. The medical records “suggest[ed] that the symptoms
resolved in or around December 2017 and did not resume in the 21 months leading up to her vaccination.”
Id. I concluded that this earlier history did not establish another condition or abnormality, it and did not
explain Petitioner’s post-vaccination injury. Id. at 8-9. I moreover find that this limited prior history does not
bear on the damages determination.
4

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 5 of 8
At that first primary care encounter, the PA documented tenderness on palpation,
and painful external and internal rotation, but no specific measures of range of motion.
The PA suspected rotator cuff tendonitis and subacromial bursitis. Petitioner was
prescribed a limited course of meloxicam (7.5 mg once per day, for 14 days) and given
home exercises. Ex. 4 at 8-9.
After the initial delay in treatment, Petitioner complied with her treaters’
recommendations including undergoing an x-ray of the left shoulder, which was
unremarkable. Id. at 10. The February 18, 2020, MRI of the left shoulder visualized “a 7
mm osteochondral lesion involving the lateral aspect of the greater tuberosity with
extensive surrounding marrow edema.” Id., with “significant inflammation” according to
an orthopedist’s later interpretation. Ex. 9 at 11.
In March 2020, Petitioner promptly undertook referrals to one orthopedist, Dr.
Donegan, and then to his colleague Dr. McGonigle approximately one week later. Ex. 9
at 3-13. The orthopedic records repeatedly state that Petitioner had “constant” pain rated
at 7/10. Ex. 9 at 3; id. at 10; Ex. 13 at 3; Ex. 14 at 3. But in contrast on her March 18,
2020, new patient questionnaire, Petitioner wrote that the pain was currently 1 – 2/10 and
“at times” rose to 8/10. Id. at 9. Of note at this point, Petitioner’s prescription for meloxicam
had run out. Ex. 4 at 9 (providing a 14-day prescription without refills). Thus, at this point,
Petitioner’s symptoms were moderate at best.
At the March 18, 2020, initial evaluation, the orthopedist Dr. McGonigle
documented that Petitioner’s left shoulder was “mild[ly]” tender on palpation. Ex. 9 at 11.
Active range of motion on abduction was 160 degrees, forward flexion was 170 degrees,
external rotation was 40 degrees, and internal rotation was to T12. Id. at 12. Passive
range of motion and stability were not limited. Strength was 5/5 on internal rotation, but -
5/5 on external rotation and forward flexion (“appear[ing] to be limited by pain; there is
discomfort and pain with impingement sign”). Id. There was also pain and weakness on
a Speed’s test. Id.
Dr. McGonigle summarized that Petitioner currently had “relatively good motion
and strength,” but that the findings were consistent with SIRVA, which could be
prolonged. Ex. 9 at 12. He did not believe Petitioner to be a candidate for arthroscopic
debridement “at this point, but [she] could be considered in the future if symptoms persist.”
Id. Dr. McGonigle recorded that Petitioner would “do some self-guided physical therapy
exercises.” Id. In addition, we will proceed with cortisone injection today… Plan will be to
follow up in 3 months.” Id.; see also Ex. 17 (home exercise worksheets). I accept
Petitioner’s recollection that she “strictly adhered” to the home exercises, performing them
approximately two to three days per week. Ex. 16 at ¶ 5.
5

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 6 of 8
I also accept Petitioner’s explanation that she and Dr. McGonigle did not pursue
formal PT, at least initially, due to the emerging COVID-19 pandemic. Ex. 16 at ¶ 5 (citing
concerns for herself, her husband, and their two small children); see also Ex. 18 and
Damages Exs. 1-4 (evidencing restrictions on non-essential services in her state of
Kentucky and the United States more generally). I find that decision to be reasonable
under the circumstances – but also that Petitioner was not left without recourse, since
she had alternative measures (namely, a steroid injection and a specific home exercise
program) available to her.
At the June 17, 2020, orthopedics follow-up, Petitioner reported that her left
shoulder symptoms had been “gradually improving” and that she was currently “about 65-
70 percent better.” Ex. 13 at 4. She had been “much more active with the shoulder” but
“still [had] some symptoms with reaching away from the body or overhead with any
weight.” Id. Upon examination, the left shoulder’s active abduction had improved to 170
degrees, forward flexion to 180 degrees, and internal rotation to T12. Id. at 5. On forward
flexion and external rotation, strength was restored to 5/5, now with “no significant pain.”
Id. An impingement sign did “reproduce some mild symptoms.” Id. There was no longer
“significant pain and weakness with Speed’s test.” Id. Dr. McGonigle summarized that her
range of motion, strength, and pain level had improved and would likely continue to prove
over time. Id. He did not identify any new specific treatment and recorded: “She will
continue with home-based physical therapy. If she wishes to trial an outpatient-based
program, she can always call for prescription.” Id. Dr. McGonigle did not see any current
“indicat[ion]” for surgery but was willing to reconsider “if symptoms worsen.” Id.
At the final orthopedics follow-up appointment on September 18, 2020, Petitioner
reported her left shoulder had “not changed much since her last visit.” Ex. 14 at 8. The
physical exam findings were unchanged – and largely normal, as noted above. Id. Dr.
McGonigle summarized: “She does have full range of motion and good strength in the
shoulder however, she has persistent aching pain that limits her daily quality of life.” Id.
Petitioner “felt that she is managing okay and does not wish to consider surgery at this
point. She also does not feel that the symptoms warrant a repeat cortisone injection.” Id.
Dr. McGonigle also repeated from the last appointment: “She will continue with home-
based physical therapy. If she wishes to trial an outpatient-based program, she can
always call for prescription.” Id. However, there are no further medical records. In her
affidavit, Petitioner recalls adhering to the home exercise program “all the way through”
to September 18, 2020 – allowing for a conclusion that she did not continue the exercises
beyond that date. Ex. 16 at ¶ 5. The record reflects a limited treatment course and a
general recovery from her injury within one year of vaccination.
6

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 7 of 8
I have also reviewed Petitioner’s assertion that she has not pursued further
treatment, such as further steroid injections and/or surgical interventions, based on her
orthopedist’s advice. Ex. 16 at ¶ 7. However, the medical records do not support such a
conclusion. Instead, they establish that Petitioner herself felt that she was “managing
okay” and opted against any further treatment – including continued home exercises or
for that matter, formal PT as offered by her orthopedist in June and again in September
2020.
Both parties are commended for identifying relevant past reasoned decisions
awarding damages that are comparable to the present case. While cited by both parties,
I agree with Petitioner that Mejias presents an inapposite fact pattern supporting an
“initially high severity of pain” followed by a significant gap in treatment without sufficient
explanation, supporting a finding of lower severity over time. In contrast, Ms. Couch’s
injury worsened over the first four months, before treatment with a cortisone injection and
a structured home exercise program (in lieu of formal PT as reasonably explained by the
emerging pandemic) followed by improvement within the first year.
Like this case, Ramos involved an initial treatment delay of approximately four
months. While Respondent contends that this petitioner’s emergency department
encounter indicates a more severe injury, Petitioner correctly notes that the Ramos
petitioner left the ER quickly, without undergoing an evaluation or receiving treatment.
Moreover, Ramos did not put much weight on the emergency encounter – noting that the
claimed flare of pain “appears to have been short-lived.” 2021 WL 688576, at *5. The
Ramos petitioner attended only four formal occupational/physical therapy sessions, then
self-managed with over-the counter pain medications for an additional five months before
returning for mild pain of 2/10. I also emphasized that the “entirely conservative” treatment
course in that case did not include any cortisone injections or imaging, unlike in Ms.
Couch’s case. Id.
Petitioner’s case is more comparable to Rayborn, which involved an initial
treatment delay of approximately four months, followed by primary care and orthopedics
consultations, one steroid injection, an MRI, and substantial recovery within the first year
after vaccination. While the Rayborn petitioner also attended 14 occupational therapy
sessions over the course of seven weeks, I find that Ms. Couch’s pandemic-induced
alternative of home exercise, performed two to three times per week for months, is
sufficiently equivalent. Respondent’s other “key difference” between the cases is that the
Rayborn petitioner was documented to have more limited range of motion, weakness,
7

Case 1:20-vv-01246-UNJ Document 53 Filed 09/23/22 Page 8 of 8
and loss of grip strength. Response at 8. But in another case, Welch,8 I awarded
$55,000.00 to a petitioner repeatedly documented to have pain, but normal range of
motion, throughout her course of treatment. Based on similarities to the petitioners in both
Rayborn and Welch, I find that Ms. Couch is entitled to $55,000.00 for her actual pain and
suffering.
IV. Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $55,088.38 (representing $55,000.00 for actual pain and
suffering, plus $88.38 for actual unreimbursed expenses).
This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Welch v. Sec’y of Health & Hum. Servs., No. 18-660V, 2021 WL 4612654 (Fed. Cl. Spec. Mstr. Sept. 2,
2021) (awarding $55,000.00 for actual pain and suffering).
9 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.
8