VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01471
Package ID: USCOURTS-cofc-1_20-vv-01471
Petitioner: Nicole Fortney
Filed: 2020-10-27
Decided: 2025-04-21
Vaccine: Hepatitis A/B
Vaccination date: 2018-06-06
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 85913

AI-assisted case summary:
Nicole Fortney filed a petition for compensation under the National Vaccine Injury Compensation Program alleging she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of a combined Hepatitis A and Hepatitis B vaccination on June 6, 2018. The respondent conceded that Ms. Fortney satisfied the criteria set forth in the Vaccine Injury Table and the statutory six-month sequelae requirement. A ruling on entitlement was issued on August 1, 2022, finding Ms. Fortney entitled to compensation. The parties were unable to resolve damages on their own, leading to a ruling on damages on April 21, 2025. The court awarded Ms. Fortney a total of $85,913.36, which included $75,000.00 for actual pain and suffering, $7,043.44 for past unreimbursable expenses, and $3,869.92 for lost wages after accounting for applicable tax offsets. This award represents compensation for all damages available under Section 15(a) of the Vaccine Act.

Theory of causation field:
Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-01471-0
Date issued/filed: 2022-09-01
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/01/2022) regarding 48 Ruling on Entitlement, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01471-UNJ Document 53 Filed 09/01/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1471V
UNPUBLISHED
NICOLE FORTNEY, Chief Special Master Corcoran
Petitioner, Filed: August 1, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Combined Hepatitis A
and Hepatitis B (Hep A/Hep B)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On October 27, 2020, Nicole Fortney filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a combined Hepatitis A and Hepatitis B (“Hep
A/Hep B”) vaccination that was administered on June 6, 2018. Petition at 1. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On July 29, 2022, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Specifically, “it is respondent’s position that petitioner has satisfied the criteria set forth in
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-01471-UNJ Document 53 Filed 09/01/22 Page 2 of 2
the Vaccine Injury Table.” Id. at 8. Respondent further agrees that Petitioner has satisfied
the statutory six-month sequelae requirement. Id. (citing § 300aa-11(c)(D)(I).
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-01471-1
Date issued/filed: 2025-03-14
Pages: 15
Docket text: PUBLIC ORDER/RULING (Originally filed: 01/29/2025) regarding 80 Findings of Fact & Conclusions of Law, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1471V
UNPUBLISHED
NICOLE FORTNEY, Chief Special Master Corcoran
Petitioner, Filed: January 29, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON DAMAGES1
On October 27, 2020, Nicole Fortney filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she developed a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Hepatitis A/B (“Hep A/Hep B”) vaccine
administered to her on June 6, 2018. Petition at 1. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters. Although a ruling on entitlement
in Petitioner’s favor was issued in early August 2022, the parties have been unable to
resolve damages on their own.
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 (2012).

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 2 of 15
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount of $82,043.44, representing $75,000.00 for actual pain and
suffering and $7,043.44 for past unreimbursed expenses. I also find that Petitioner
is entitled to $4,948.11 for her lost wages (although this sum must be adjusted by
the parties to account for taxes).
I. Relevant Procedural History
Almost two years after the case was filed, Respondent filed his Rule 4(c) Report
in July 2022 conceding that Petitioner was entitled to compensation. Respondent’s Report
at 1. ECF No. 47. In view of Respondent’s position, a Ruling on Entitlement was entered
in Petitioner’s favor. ECF No. 48. Thereafter, the parties attempted to informally resolve
the issue of damages, but reached an impasse on an appropriate award and asked me
to issue a briefing schedule. ECF No. 61.
Petitioner filed her damages brief on August 21, 2023 requesting that I award (a)
$120,000.00 for actual/past pain and suffering; (b) $7,534.44 for unreimbursable
expenses; and (c) $9,321.20 in lost wages. Petitioner’s Damages Brief (“Brief”) at 22, 24,
34. ECF No. 69.
On November 9, 2023, Respondent filed a damages brief proposing the lesser
award of $61,000.00 for Petitioner’s actual/past pain and suffering, $1,856.15 for her
unreimbursable expenses, and no award for lost wages. Respondent’s Damages Brief
(“Opp.”) at 1, 20. ECF No. 72. Petitioner filed her reply on December 22, 2023. ECF No.
74.
II. Pain and Suffering
A. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include an award “[f]or
actual and projected pain and suffering, and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may
recover “actual unreimbursable expenses incurred before the date of judgment awarding
such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). Petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
2

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 3 of 15
There is no precise 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) (“Awards 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 in the resolution of the
appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own experience
adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961
(Fed. Cir. 1993) (noting that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
claims). Importantly, however, it must also be stressed that pain and suffering is not
determined based on a continuum. See Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 579 (2013).
B. 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 Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury. That analysis relies on review of the record as a whole, including the
medical records, affidavits, and written briefs. I have also considered prior awards for pain
and suffering in both SPU and non-SPU SIRVA cases, and I take into account my
experience adjudicating these cases. Based upon the above, I note and find the following:
• In her affidavit, signed on December 7, 2020, Petitioner states that she graduated
from massage therapy school and passed the licensure examination in May 2017.
Ex. 20 at 1. She goes on to say that “in October 2017, I began working part-time
as an independent contractor. Then in November 2017, I was hired to work as a
part-time employee for a massage business. My work was just beginning to take
off, and I was in very good health.” Id. at 2.
3

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 4 of 15
• On June 6, 2018, Petitioner received the Hep A/B vaccine in her left deltoid. Ex. 1
at 1; Ex. 7 at 7. She was 35 years old. Id.
• Petitioner submitted additional written testimony indicating that when the vaccine
was injected into her arm on June 6, 2018, “I felt a tremendously intense sensation
in my shoulder joint . . . I looked at my bleeding shoulder and said that I felt faint
and began to lower my head forward. A strange feeling came over me. When I
regained consciousness, I expected to be in my bed awaking from a dream, but
quickly realized that I was at the pharmacy and had passed out. Intense pain and
pressure were felt in my left shoulder.” Ex. 20 at 3.
• On June 8, 2018 (two days post-vaccination), Petitioner called Patient First and
reported that “she had Hep A/B vaccination in her left deltoid muscle . . . passed
out at the time, and then had feeling of pins/needles in arm/hand/fingers which has
improved; however, today [Petitioner] noticed when raising her arm she has
numbness in the forearm, pinky finger has feeling of pins/needles and left hand
feels cool.” Ex. 6 at 5.
• Later on June 8, 2018, Petitioner presented for an examination at Patient First. Ex.
6 at 2. Her chief complaint was a “2-day history of arm numbness . . . after a
hepatitis B injection.” Id. Petitioner was prescribed a Medrol dose pack. Id.
• A representative from Patient First telephoned Petitioner on June 11, 2018 to
“follow up” on her report of injury. Ex. 6 at 2. Petitioner reported “still having some
pain/stiffness when raising arms above head” and noted that she continued to take
the Medrol dose pack. Id.
• Also on June 11, 2018, Petitioner was seen at UPMC Pinnacle Health, Bone and
Joint Center (“UPMC”) for “pain in her left shoulder after an injection. Ex. 12 at 9.
The notes documenting this appointment indicate that Petitioner “passed out and
she had some numbness and tingling . . . [the symptoms are] only in her left arm
and spreading to her chest and neck. [Petitioner] states she hasn’t been using her
arm as much since it’s painful . . . [s]he was given a prednisone pack which did
help her.” Id.
• Petitioner maintains that “[t]he condition of my shoulder caused me to reduce the
number of clients that I would see in a day at the massage business. I also did not
try to gain more clients than the couple I had at the independent contractor
position.” Ex. 20 at 4.
• Petitioner visited orthopedic surgeon Dr. Timothy S. Ackerman on July 12, 2018 (1
month, 6 days post-vaccination), at Arlington Orthopedics. Ex. 5 at 4-5. Petitioner
reported that her “shoulder pain started on June 6, 2018 [after] she received an
4

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 5 of 15
injection . . . she passed out.” Id. at 4. It was further noted that Petitioner’s pain
“increases with abduction, flexion, pulling and pushing weight . . . She is unable to
fold her laundry due to increased pain . . . she is doing home exercises.” Id.
Petitioner rated her pain as a two on a ten-point pain scale. Id. Dr. Ackerman’s
assessment was “[l]eft shoulder rotator cuff tear, acute strain, incomplete,
traumatic.” Id.
• In her affidavit, Petitioner states that although Dr. Ackerman recommended that
she participate in formal physical therapy, “due to the cost, I chose to perform
exercises on my own.” Ex. 20 at 5.
• Petitioner underwent an MRI on July 24, 2018. Ex. 5 at 12-13. The test revealed
moderate supraspinatus tendinosis and a “[t]iny insertional tear of the infraspinatus
tendon.” Id. at 13.
• On August 2, 2018, Petitioner consulted with Jacqueline Hirsch, PA-C, at Arlington
Orthopedics, regarding her left shoulder pain. Ex. 5 at 6-7. The medical notes
document that Petitioner rated her pain as a three on a ten-point pain scale and
that the physical exam “reveal[ed] tenderness to palpation anteriorly, laterally and
posteriorly.” Id. at 6. Petitioner was assessed with left shoulder rotator cuff
tendinitis, given a cortisone shot, and instructed to take ibuprofen for pain. Id. at 6-
7.
• Petitioner states “my shoulder impacted my ability to do work, and for the
massages that I was able to perform, I received some poor feedback from clients
. . . It was very difficult to manage the irritable and depressed feelings that came
up as I tried to navigate my activities of daily living while being a good mom to my
eight- and ten-year-old children. Due to the pain, my independent activities of daily
living were omitted as much as possible or performed by my husband.” Ex. 20 at
5.
• Petitioner attended a medical appointment at UPMC to establish care on August
15, 2018. Ex. 15 at 11-14. The medical notes do not reflect any report of shoulder
pain. Id.
• Petitioner reported to UPMC on August 28, 2018 for an annual examination. Ex.
15 at 17-20. The medical notes documenting this visit do not mention Petitioner’s
shoulder pain. Id.
• Petitioner returned to Dr. Ackerman for an evaluation of her left shoulder on
September 6, 2018 (3 months post-vaccination). Ex. 5 at 8-9. Petitioner rated her
pain as a two on a ten-point pain scale and stated that she worked as a massage
therapist and “had to cut back her hours.” Id. at 8. Petitioner also stated that she
5

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 6 of 15
recently increased her workload and that her shoulder pain was improving. Id.
Petitioner was assessed with left shoulder rotator cuff tendinitis and left shoulder
impingement syndrome and was given her second cortisone injection. Id.
• On December 6, 2018 (now six months post-vaccination), Petitioner returned to
Dr. Ackerman for a recheck of her left shoulder. Ex. 5 at 10-11. Noting her
occupation as a massage therapist, Petitioner stated that “direct pressure with her
arm bent gives increased pain” and rated her pain as a two on a ten-point scale.
Id. at 10. Dr. Ackerman’s diagnoses included left shoulder subacromial bursitis,
impingement, and rotator cuff tendinitis as well as “left upper extremity cubital
tunnel syndrome versus cervical radiculopathy.” Id. Petitioner was administered
her third cortisone injection at this visit. Id. at 11.
• Petitioner underwent a nerve conduction study and electromyography on
December 20, 2018. Ex. 14 at 7-8. While no evidence of cervical radiculopathy,
brachial plexopathy or peripheral neuropathy was found, it was determined that
Petitioner “may have SIRVA…” Id. at 8.
• On January 14, 2019, Petitioner returned to UPMC for a follow-up examination
regarding “cellulitis of right medial upper leg.” Ex. 15 at 25-27. The medical notes
documenting this appointment indicate that Petitioner underwent acupuncture and
“since about one week after [this treatment,] her arm no longer goes numb.” Id. at
25.
• Petitioner received acupuncture treatment for matters that included left shoulder
pain from Dr. Edwin Aquino on March 12, 2019. Ex. 14 at 4-5. Her assessment
included “left shoulder pain, SIRVA.” Id. at 4.
• Petitioner visited Dr. Aquino for acupuncture treatment again on March 26, 2019.
Ex. 14 at 6. He noted that Petitioner’s left shoulder was “significantly improved with
increased functional level,” with active range of motion “close to full without any
pain complaint” on examination. Id.
• On May 2, 2019 (almost 11 months post-vaccination), Petitioner attended a
medical appointment with Dr. Gregory Willis concerning her cervical dysplasia. Ex.
17 at 39-45. The medical notes indicate that she reported right hip pain “since
approximately March [but] is not sure what happened” and that she “did have fall
and a trauma to her left shoulder and neck.” Id. at 39. The medical notes do not
indicate that Petitioner reported ongoing issues with her left shoulder during this
visit. Id. at 39-45.
• In her supplemental affidavit, signed on August 20, 2023, Petitioner states that the
“fall and neck trauma to my left shoulder and neck” referenced in Dr. Willis’ May 2,
6

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 7 of 15
2019 medical note was “the loss of consciousness I experienced when I received
my vaccination on June 6, 2018.” Ex. 33 at 1-2.
• On May 28, 2019, Petitioner returned to UPMC with a complaint of leg pain. Ex.
19 at 15-18. There is no indication that Petitioner’s left shoulder was discussed. Id.
• On June 6, 2019, Petitioner reported to her dermatologist for evaluation of her
acne. Ex. 23 at 15-19. There is no indication that Petitioner’s left shoulder was
discussed. Id.
• Petitioner testified that, “[t]hroughout 2019, my husband continued to help with the
housework, as well as being the primary source of income for our family . . . My
shoulder limited the number of clients I could see at work and the activities I could
do in the rest of my life. I began to develop right elbow tenderness and pain from
using it to perform as much of my activities as possible to avoid pain in my left
shoulder and arm.” Ex. 20 at 6-7.
• On February 29, 2020, Petitioner visited AllBetterCare Urgent Care Center for a
tuberculosis screening. Ex. 22 at 2-4. There is no indication that Petitioner’s left
shoulder pain was discussed during the screening. Id.
• Petitioner attended a follow-up medical appointment concerning her cervical
dysplasia on September 11, 2020 (a little over 2 years post-vaccination, and
approximately 1.5 years since her last report of left shoulder symptoms in March
2019). Ex. 25 at 7-14. The notes reflect that Petitioner “has some ongoing
discomfort related to a left shoulder injury and a 3/10 today.” Id. at 7.
• In her supplemental affidavit, signed on August 20, 2023, Petitioner states that “as
I entered 2021, I continued to experience residual left shoulder pain and limited
function related to my SIRVA. As time went on, it became apparent that I was going
to need additional treatment . . . However, the cost of treatment, my busy schedule
with family and work, and the ongoing pandemic, all impacted my plans to seek
further care for my left shoulder. In fact, due to concerns for the pandemic affecting
my young family, I limited my medical care in 2020 and 2021 to my annual
gynecologic oncology follow up related to my history of cervical cancer.” Ex. 33 at
2.
• Petitioner further maintains that “[t]hroughout 2021, my left shoulder pain
increased with activity, including cooking, driving, cleaning, showering, and my
work as a massage therapist.” Ex. 33 at 2.
7

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 8 of 15
• The notes documenting Petitioner’s November 15, 2021 medical appointment
concerning her cervical dysplasia indicate that she “has some musculoskeletal
complaints involving her left shoulder.” Ex. 28 at 8.
• Petitioner returned to Dr. Ackerman on December 14, 2021 (approximately 3.5
years post-vaccination and almost 3 years since she last sought treatment for her
left shoulder). Ex. 26 at 9-13. Petitioner now reported that “the pain [in her left
shoulder] has been going on . . . since June 2018 and was possibly caused by an
immunization injection for travelling.” Id. at 9. Petitioner further reported that, at its
worst, her pain was a six on a ten-point pain scale and described it as a burning,
dull ache. Id. On exam, Petitioner had good range of motion, pain with abduction,
tenderness to palpation posteriorly, a positive impingement test, and some
weakness of the supraspinatus and infraspinatus muscles. Id. at 12. She was
assessed with left shoulder tendinitis, bursitis, impingement syndrome, and a
nontraumatic incomplete rotator cuff tear. Id.
• Petitioner underwent a second MRI of her left shoulder on January 10, 2022. Ex.
27 at 1-2. It revealed “[m]ild supraspinatus and crossover tendinopathy with
partial-thickness interstitial tearing involving the posterior supraspinatus and
crossover tendon peri-insertional fibers” and “[m]ild subacromial/subdeltoid
bursitis.” Id.
• Petitioner returned to UPMC for an orthopedic evaluation and treatment on
February 14, 2022. Ex. 30 at 8-12. She again reported that her left shoulder pain
began in 2018, rated her discomfort as a six on a ten-point pain scale, and noted
that her injury had impacted her ability to work. Id. at 8. Petitioner was assessed
with left rotator cuff tendinitis, bursitis of the left shoulder and impingement
syndrome of the left shoulder. Id. at 11. It was further noted that Petitioner “failed
multiple conservative treatments including physical therapy, injections,
medications, and massage.” Id. at 12. “Due to her continued symptoms and
interference with her activities of daily living and quality of life,” surgical arthroscopy
of the left shoulder was recommended. Id.
• Petitioner underwent a left shoulder diagnostic and operative arthroscopy with
debridement on March 18, 2022 (3 years, 9 months and 12 days post-vaccination).
Ex. 29 at 5-6. The operative report states that Petitioner had experienced left
shoulder pain since 2018 and that she attributed her symptoms to “an
immunization injection for traveling.” Id. at 5. It was also noted that Petitioner’s
injury impacted her ability to work. Id. Although Dr. Ackerman, the operating
physician, pulled Petitioner’s rotator cuff into full range of motion, he found no
evidence of a rotator cuff tear, subscapularis tear or bursitis. Id. at 6. His
postoperative diagnosis was “[l]eft shoulder torn labrum.” Id. at 5.
8

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 9 of 15
• Petitioner next visited Dr. Ackerman on March 28, 2022. Ex. 30 at 14-17. He noted
that Petitioner’s “shoulder has been quite achy and sore since the surgery,
although pain is decreasing. She has been wearing the shoulder immobilizer
faithfully, of course coming out of the immobilizer to do her exercises. The pain is
rated as a 1/10, on a 0-10 pain scale.” Id. at 14.
• Petitioner began a post-operative course of physical therapy on April 7, 2022. Ex.
31 at 39-43. The initial evaluation states that Petitioner’s pain ranged from a one
through eight on a ten-point pain scale and that “she had no left shoulder pain or
dysfunction prior to receiving a vaccination in her left arm in June 2018. Her goal
is to be able to return to her work as a massage therapist.” Id. at 39-40. Her current
functional status was described as “Max Difficulty” for her activities of daily living,
and she was noted to be “[u]nable to perform recreational and work activities.” Id.
at 39.
• On April 25, 2022, Petitioner returned to UPMC for a follow-up visit regarding her
left shoulder. Ex. 30 at 19-22. She reported that her “shoulder feels great and pain
has overall been decreasing.” Id. at 19. Petitioner rated her pain as a zero on a
ten-point scale. Id. at 19.
• Petitioner was discharged from post-operative physical therapy after nine sessions
on May 5, 2022. Ex. 31 at 10-13. She reported that her shoulder felt “90% better,”
noted that her pain ranged between zero and two on a ten-point pain scale, and
stated that she was “thinking about trying to do some massage again.” Ex. 31 at
10.
• Petitioner returned to UPMC on May 23, 2022. Ex. 32 at 6-9. The medical notes
documenting this visit indicate that Petitioner was following a home exercise plan
and that she was able to perform activities of daily living “with more ease.” Id. at 6.
Petitioner rated her left shoulder pain as a zero on a ten-point pain scale and
indicated that her pre-operative symptoms had completely resolved. Id.
• Petitioner was examined by Dr. Ackerman on July 14, 2022. Ex. 32 at 11-14.
During this visit, Petitioner reported that her shoulder was “still quite achy and sore
but pain overall been decreasing.” Id. at 11. Dr. Ackerman noted that Petitioner “is
back to yoga and gardening, feeling much better. She states her pain as a 0/10 on
the pain scale. She has been doing [activities of daily living] with more ease.” Id.
The plan was for Petitioner to “continue working on strengthening and range of
motion to the left shoulder with formal physical therapy.” Id. at 14.
• In her affidavit, Petitioner states that her shoulder injury “has been tremendously
stressful and painful, and regrettably, I could not garden or do yoga to cope. I
9

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 10 of 15
purchased a car that was easier to drive . . . [f]or a long time, I could not hug my
children without pain in my left arm.” Ex. 20 at 7.
The case record overall establishes that Petitioner experienced a moderate SIRVA
injury in the ten months after her June 6, 2018 vaccination. During this period, she
consistently sought treatment from both her orthopedist and acupuncturist, received three
cortisone injections, and underwent one MRI. See generally Ex. 5; Ex. 14. Her diagnoses
included tendinitis, impingement, and bursitis – all occurring in her left shoulder. Ex. 5 at
6-8, 11. However, she did not participate in physical therapy (choosing to perform self-
directed exercises due to a lack of insurance) and only rated her pain as high as “three”
on a ten-point pain scale. Ex. 5 at 4, 6, 8; Ex. 20 at 5; Ex. 25 at 7. And by March 26, 2019
(almost ten months post-vaccination), it was determined that Petitioner’s left shoulder had
“significantly improved with increased functional level” and that she exhibited close to full
range of motion. Ex. 14 at 6. This record thus corroborated the mild character of
Petitioner’s injury.
Although Petitioner mentioned “trauma to her left shoulder” during a medical
appointment concerning an unrelated issue in May 2019, her injury is not again
referenced in the medical records until September 11, 2020 – almost 2.5 years post-
vaccination. Ex. 17 at 39. By this time, Petitioner was reporting “some ongoing discomfort
related to a left shoulder injury,” and rated her pain as a “three” on a ten-point pain scale.
Ex. 25 at 7. But she then waited almost another year – until November 15, 2021 – before
again mentioning any issues with her shoulder, and did not obtain formal treatment for
this injury until December 14, 2021 (around 3.5 years post-vaccination). Ex. 26 at 9-13;
Ex. 28 at 8. Although her diagnoses remained consistent (Petitioner was assessed with
tendinitis, bursitis, impingement syndrome and a nontraumatic incomplete tear of the left
rotator cuff), her pain had increased to a “six” on a ten-point pain scale. Ex. 26 at 9; Id. at
12.
After undergoing a second MRI on January 10, 2022 (which revealed “[m]ild
supraspinatus and crossover tendinopathy with a partial-thickness interstitial tearing
involving the posterior supraspinatus and crossover tendon peri-insertional fibers” and
“[m]ild subacromial/subdeltoid bursitis”) and following up with Dr. Ackerman on February
14, 2022, Petitioner underwent left shoulder diagnostic and operative arthroscopy with
debridement on March 18, 2022 (almost four years post-vaccination). Ex. 27 at 1-2; Ex.
30 at 8-12; Ex. 29 at 5-6. By her first post-operative appointment only ten days later,
Petitioner rated her pain as a “one” on a ten-point pain scale. Ex. 30 at 14. And while
Petitioner noted that her pain ranged between one and eight at her initial physical therapy
session, after attending nine additional sessions over the course of one month, she
reported that her left shoulder felt “90% better” and that her pain ranged between a zero
and two. Ex. 32 at 11-14. The final medical record is dated July 14, 2022 (over four years
10

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 11 of 15
post-vaccination). Although Petitioner reported that her shoulder was “still quite achy and
sore,” she was performing activities of daily living “with more ease,” and she rated her
pain as a “zero” on a ten-point scale. Id. at 11.
Petitioner argues that she “endured an extensive course of treatment,” and that
“[h]er pain, suffering, and emotional distress extending through the conclusion of her
treatment course in 2022 was all vaccine-related.” Reply at 18. In contrast, Respondent
asserts that Petitioner only experienced a “mild-to-moderate SIRVA initially with long gaps
in treatment, and a markedly different presentation after the treatment gap, demonstrating
an unrelated injury.” Reply at 9-10. For this reason, Respondent concludes that any award
should be limited to the first nine months of Petitioner’s treatment course.
Petitioner has provided some reasonable explanations for the substantial lapses
in seeking care for her shoulder. In her supplemental affidavit, for example, Petitioner
states that she “limited [her] medical care in 2020 and 2021 due to concerns for the
[COVID] pandemic.” Ex. 33 at 2. And there is no evidence other than the treatment gap
that Petitioner's symptoms completely resolved within nine months. Nevertheless, I deem
the decision to forego treatment for so many extended periods of time as evidence of the
mildness or stability of her injury, since it could be endured without medical assistance.
However, while Respondent correctly observes that Petitioner reported “higher
pain levels, no radiating pain and no numbness or paresthesias” when she resumed
treatment in December 2021, these traits do not represent a “markedly different
presentation” of her shoulder injury. As noted by Petitioner, “Dr. Ackerman’s physical
examination notes from December 6, 2018 . . . are nearly identical to [his] examination
notes on December 14, 2021.” Reply at 9. I also agree that Petitioner’s July 2018 and
January 2022 MRIs are consistent with one another as they both “revealed injury involving
the supraspinatus tendon” and bursitis. Compare Ex. 5 at 12-13 (finding “[m]oderate
supraspinatus tendinosis” and a “[t]iny insertional tear of the infraspinatus tendon” as well
as “trace fluid within the subacromial subdeltoid bursa”) with Ex. 27 at 1 (finding “[m]ild
supraspinatus and crossover tendinopathy with partial-thickness interstitial tearing” and
“[m]ild subacromial/subdeltoid bursitis.”). And the recommendation to pursue surgery was
based on the continuity of Petitioner’s symptoms. Indeed, on February 14, 2022, Dr.
Ackerman noted that “[d]ue to [Petitioner’s] continued symptoms . . . I recommend
surgical arthroscopy of the left shoulder.” Ex. 30 at 12.
Nevertheless, while Petitioner’s preoperative diagnoses were “[l]eft shoulder
rotator cuff tear” and “torn superior labrum,” Dr. Ackerman postoperatively determined
that “[t]here was no evidence of any rotator cuff tear” and “no evidence of bursitis.” Ex. 29
at 5-6. Petitioner was ultimately diagnosed with a torn superior labrum (“SLAP tear”). Id.
at 5. And this is not the kind of injury that can be SIRVA-attributed. For, as Respondent
11

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 12 of 15
observes, “[t]he causes of SLAP tears are excessive forces and loads . . . due to trauma,
overuse, and wear and tear,” and “[t]here is no literature to support that vaccine
administration can physiologically cause such excessive forces in this area far removed
from the site of injection.” Response at 11-12.
Petitioner’s arguments to the contrary and unavailing. In her Reply, Petitioner
essentially argues that because Respondent conceded entitlement, his contention that
SLAP tears “should not be compensated under the umbrella of SIRVA” has been waived.
Reply at 15. But this contention lacks legal force. Claimants are never entitled to all
damages stemming from post-injury medical treatment unless the treatment is associated
with the injury. Robuck v. Sec’y of Health & Human Servs., No. 20-0465V, 2023 WL
6214986, at *6 (Fed. Cl. Spec. Mstr. Aug. 21, 2023)(“unrelated conditions must be
separated out from the damages attributable for a Table SIRVA”). And it has not been
established on this record that this aspect of Petitioner’s treatment was so associated.
Indeed, Dr. Ackerman’s records are silent on the matter, and Petitioner’s self-reporting of
an association do not prove it so. See, e.g., Ex. 31 at 39 (reporting “left shoulder trauma
with a vaccine injection.”).
The case record thus establishes that Petitioner experienced a moderate SIRVA
injury within a year of vaccination, progressing to far more mild symptoms that did not
warrant significant treatment for a longer period of time. Although the initial SIRVA may
well have somewhat exacerbated unrelated injuries, it cannot be concluded on this record
that the SIRVA lead directly to the surgical procedure performed so much later.
Respondent’s contention that all of Petitioner’s symptoms after her initial nine-
month course are completely unrelated to her claim is not wholly persuasive. But the
$120,000.00 sum requested by Petitioner is too high. However, the comparison of her
own case to the circumstances present in Langdon v. Sec’y of Health & Human Servs.,
No. 20-1311, 2023 WL 3411103 (Fed. Cl. Spec. Mstr. Apr. 7, 2023)(awarding $99,000.00
for pain and suffering) is useful. The Langdon petitioner underwent nine months of
treatment for his SIRVA, including six sessions of physical therapy, two therapeutic
injections, and two MRI scans. Id. at *2. He then waited over two years before seeking
care for his shoulder, at which time it was recommended that he proceed with surgery.
Id. at *3. Over three years after vaccination, that petitioner underwent left shoulder
arthroscopy, subacromial decompression and mini-open biceps tenodesis, and had a
good subsequent outcome. Id.
While the sum awarded in Langdon overall seems to provide an apt and fair
measure of what is appropriate herein, these two cases are not wholly congruent: That
petitioner endured more physical therapy and experienced a shorter gap in treatment.
Moreover – and perhaps most importantly -there was no question that the Langdon
petitioner’s sequelae were related to his SIRVA. Accordingly, balancing the severity and
12

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 13 of 15
overall course of Petitioner’s SIRVA injury and considering the arguments presented by
both parties, a review of cited cases, and the record as a whole, I find that $75,000.00
represents a fair and appropriate amount of compensation for Petitioner’s past or actual
pain and suffering.
III. Appropriate Compensation for Past Unreimbursed Expenses
A petitioner may recover “actual unreimbursable expenses incurred before the
date of judgment awarding such expenses which (i) resulted from the vaccine-related
injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the
person who suffered such injury, and (iii) were for diagnosis, medical or other remedial
care, rehabilitation ... determined to be reasonably necessary.” Section 15(a)(1)(B).
Petitioner bears the burden of proof with respect to each element of compensation
requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722,
at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
A. Unreimbursed Expenses
Although Petitioner seeks $7,391.35 for unreimbursed out-of-pocket expenses
incurred between June 8, 2018 and June 20, 2022, Respondent argues that Petitioner is
only entitled to “medical expenses [incurred] between June 8, 2018 and May 24, 2019
([P]etitioner’s last visit prior to the treatment gap),” totaling $1,824.59. Brief at 22;
Response at 15. As I noted, the medical records provide evidence that Petitioner’s
vaccination injury had not resolved within nine months of vaccination and that surgery
had been recommended “[d]ue to her continued [left shoulder] symptoms.” While the
March 18, 2022 operative findings revealed only a SLAP tear, there is no evidence that
this injury was wholly unrelated to Petitioner’s SIRVA. I have taken into account my doubts
about the ultimate relationship between the surgery and the SIRVA in my pain and
suffering award – but those same doubts counsel me to be more lenient when it comes
to actual medical costs (which are of lesser magnitude in any event).
Therefore, Petitioner is awarded $6,900.35 - the requested amount for her past
unreimbursed expenses save for $491.00 for a “mattress topper” (a purchase that
Petitioner did not substantiate as medically necessary under the standards applied in the
Program).
B. Mileage
Petitioner also seeks $143.09 for travel expenses, in particular mileage associated
with her care, which was calculated using the business rate. Brief at 22; Ex. 34, Tab B.
Respondent argues that the appropriate calculation should rely on a tax code-related
13

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 14 of 15
“medical rate,” which would result in an award of $31.56. Response at 16-19. As set forth
in my recent decision, Gibson v. Sec'y of Health & Hum. Servs., No. 20-0243V, 2022 WL
17820891, at *12 (Fed. Cl. Nov. 16, 2022), however, it remains the determination of the
Vaccine Program that the higher business rate is properly applied in the context of
Vaccine Act cases. Therefore, based on the above, I award $143.09 for Petitioner's travel
expenses.
IV. Award for Lost Wages
The Vaccine Act provides for an award of a petitioner's “actual and anticipated loss
of earnings,” where “earning capacity is or has been impaired by reason of such person's
vaccine-related injury.” Section 15(a)(3)(A). Compensation for lost wages “may not be
based on speculation.” Moreland v. Sec'y of Health & Human Servs., No. 18-1319V, 2022
WL 10469047, at *3 (Fed. Cl. Spec. Mstr. Sept. 2, 2022).
Petitioner seeks reimbursement for lost wages for the nineteen weeks following
her March 18, 2022 shoulder surgery. She states that she “took [this] time off from her
work as a massage therapist to recover.” Brief at 23. To determine her proposed sum,
Petitioner has filed banking statements that establish that she earned approximately
$5,773.15 from her massage therapy work during the eleven weeks preceding surgery –
averaging approximately $524.80 per week.3 Petitioner thus (based on a rate of $524.80
times nineteen weeks, “minus $650.00 deposited in April 2022, which was earned prior
to her surgery, but deposited later,”) calculates that she would have received $9.321.20,
pre-tax. Respondent contends that an award for lost wages is not appropriate in this case
because “[P]etitioner’s presentation after the treatment gap is unrelated to [P]etitioner’s
SIRVA.” Response at 20.
As previously noted, there is evidentiary support for the conclusion that Petitioner’s
surgery had some relationship to the SIRVA. Dr. Ackerman’s findings in December 2021
were consistent with the conclusions he made three years earlier, and the results of
Petitioner’s 2018 and 2022 MRIs revealed the same issues. Moreover, the
recommendation to pursue surgery was based on Petitioner’s “continued symptoms,”
even if those symptoms were a mix of SIRVA and other shoulder deficits not attributable
to it.
Nevertheless, the medical record does not fully corroborate Petitioner’s implied
contention that her ability to work in the nineteen weeks following surgery was impaired.
By May 5, 2022 – around seven weeks after surgery – Petitioner reported feeling “90%
3Petitioner indicates that she earned $5,772.25 during this period; however, the correct figure is $5,773.15
– a difference of .09¢.
14

Case 1:20-vv-01471-UNJ Document 82 Filed 03/14/25 Page 15 of 15
better,” indicated that her pain ranged between a zero and a two on a ten-point pain scale,
and stated that she was “thinking about trying to do some massage again.” Ex. 31 at 10.
And on May 23, 2022 – nine weeks and three days after her surgery - Petitioner rated her
left shoulder pain as a zero on a ten-point pain scale, adding that her pre-operative
symptoms had completely resolved. Ex. 32 at 6.
Petitioner is therefore entitled to an award for her lost wages based on a post-
surgical convalesce of nine weeks and three days, totaling $4,948.114 minus applicable
taxes that would have been deducted from these earnings. The parties will be ordered
to submit a specific amount for past lost wages that includes applicable deductions.
Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner a
lump sum payment of $82,043.44, (representing $75,000.00 for Petitioner’s actual
pain and suffering and $7,034.44 for past unreimbursable expenses).
I also find that Petitioner is entitled to a pre-tax award of $4,948.11 for her
lost wage claim. By no later than Friday, February 22, 2025, the parties shall submit
a joint status report setting forth a specific amount for Petitioner’s lost wages
minus the applicable taxes that would have been deducted from these earnings.
Once the issue of Petitioner’s lost wage claim is resolved, I will issue a final
damages decision
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 This figure is based on a weekly rate of $524.80 ($524.80 x 9) and daily rate of $74.97 ($74.97 x 3).
15

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_20-vv-01471-2
Date issued/filed: 2025-04-21
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 03/18/2025) regarding 83 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01471-UNJ Document 87 Filed 04/21/25 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1471V
UNPUBLISHED
NICOLE FORTNEY, Chief Special Master Corcoran
Petitioner, Filed: March 18, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 27, 2020, Nicole Fortney filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a Table injury – shoulder injury related
to vaccine administration as a result of a Hepatitis A/B vaccine administered to her on
June 6, 2018. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”)
of the Office of Special Masters.
On August 1, 2022, a ruling on entitlement was issued, finding Petitioner entitled
to compensation. ECF No. 48. The parties were unable to resolve damages on their own,
however, and on January 29, 2025 (after briefing of the issues by the parties), I issued a
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-01471-UNJ Document 87 Filed 04/21/25 Page 2 of 2
Ruling on Damages finding that Petitioner was entitled to an award of damages in the
amount of $82,043.44, representing $75,000.00 for actual pain and suffering and
$7,043.443 for past unreimbursed expenses. I also found that Petitioner is entitled to a
pre-tax award of $4,948.11 for her lost wages. ECF No. 80 at 15. However, it was
necessary to adjust the lost wages sum to account for the applicable taxes that would
have been deducted from these earnings. Id.
On February 21, 2025, the parties filed a Joint Status Report stating that they
“agree that $3,869.92 is an appropriate amount for [P]etitioner’s lost earnings, taking into
account the applicable tax offsets.” ECF No. 81. This matter is therefore resolved, and a
damages decision may issue.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $85,913.36, (representing $75,000.00 for actual pain and
suffering, $7,043.44 for past unreimbursable expenses, and $3,869.92 for lost
wages) 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).
The Clerk of Court is directed to enter judgment in accordance with this Decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 The Damages Ruling contains a typographical error at page 15, stating that Petitioner’s awarded past
unreimbursed expenses are $7,034.44, however the correct amount is $7,043.44 ($6,900.35 for medical
expenses, plus $143.09 for mileage associated with Petitioner’s medical care). ECF No. 80 at 13-14.
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2