VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01504 Package ID: USCOURTS-cofc-1_20-vv-01504 Petitioner: Helen Anglewicz Filed: 2020-10-30 Decided: 2024-05-24 Vaccine: influenza Vaccination date: 2019-09-16 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 134085 AI-assisted case summary: Helen Anglewicz, a 61-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on October 30, 2020. She alleged that after receiving an influenza vaccine on September 16, 2019, she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA), a condition listed on the Vaccine Injury Table. The case was initially handled in the Special Processing Unit (SPU). The respondent initially disputed whether the onset of pain occurred within 48 hours and whether the pain was limited to the shoulder. However, after briefing on entitlement, Chief Special Master Brian H. Corcoran found that Petitioner was entitled to compensation for a Table SIRVA in a ruling dated August 2, 2023. The resolution of damages was deferred to allow parties to attempt informal resolution, but they were unable to reach a settlement. The case was then transferred out of SPU for further proceedings. On February 8, 2024, Chief Special Master Corcoran issued a decision awarding damages. The public decision does not name petitioner counsel or respondent counsel. The medical records indicate that Ms. Anglewicz received the flu vaccine in her right arm on September 16, 2019. On September 18, 2019, she presented for a pneumonia vaccine, and while the flu vaccine was mentioned, no complaints or findings related to her right arm were recorded. On October 11, 2019, she reported arm pain and limited range of motion in her right arm since the flu shot, with pain radiating down her arm, starting as soon as she received the injection. She was prescribed steroids. By October 29, 2019, her pain had slightly improved, but she still had limited range of motion and pain on movement of her right shoulder. She was referred to orthopedics. On November 8, 2019, an orthopedic PA noted pain since the flu shot, rated 5-6/10, and positive impingement signs. An X-ray was unremarkable, and she received a steroid injection with excellent pain relief. She was recommended activity modification and physical therapy. Follow-up on December 19, 2019, showed improved symptoms. On February 3, 2020, an orthopedic surgeon noted pain rated 7/10, decreased range of motion, positive impingement tests, and assessed bursitis and adhesive capsulitis, suggesting the flu shot may have aggravated the muscle. A steroid injection did not help. An MRI on February 20, 2020, showed a complete supraspinatus tendon tear and mild osteoarthritis. On March 9, 2020, her condition had not changed, and the assessment was updated to include a complete rotator cuff tear and a bone spur. She underwent surgery on March 20, 2020, for acromioplasty, ligament release, Mumford procedure, and bursa excision. Post-surgery, she was prescribed pain medication. By April 21, 2020, her pain was rated 3/10, with limited range of motion, and she was doing home exercises. She began formal physical therapy on April 24, 2020, but expressed concerns about COVID-19 and spaced out sessions. By May 19, 2020, her pain was rated 5/10, with normal range of motion. She was discharged from physical therapy on July 21, 2020, with her pain having subsided, though she still had difficulty reaching overhead. She was advised to continue home exercises. Further primary care encounters did not address shoulder complaints until January 5, 2022, when she sought a referral for right shoulder/upper arm pain. She attended physical therapy from January to March 2022. On April 26, 2022, an orthopedist noted right shoulder pain present for "6 months, 2 years" with a recurrence, assessing early arthritis and post-surgical tightness, and administered a steroid injection. The Special Master found that the Petitioner's injury met the criteria for a Table SIRVA, including onset of pain within 48 hours and pain limited to the shoulder, despite radiating pain down the arm, which was considered part of the shoulder pain. The claim for lost wages was denied due to insufficient evidence and potential confounding factors like the COVID-19 pandemic. The Special Master awarded Helen Anglewicz $134,085.12, comprising $130,000.00 for pain and suffering and $4,085.12 for unreimbursable expenses. The decision date for the damages award was February 8, 2024. Theory of causation field: Helen Anglewicz, age 61, received an influenza vaccine on September 16, 2019. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) as a Table injury. The Special Master found that Petitioner met the criteria for a Table SIRVA, including onset of pain within 48 hours of vaccination, despite a lack of contemporaneous documentation of pain on September 18, 2019, finding that the omission was credible and supported by circumstantial evidence (pneumonia vaccine administered in the left arm) and later, more focused medical records. The Special Master also found that pain radiating down the arm was consistent with a SIRVA, citing precedent. The Petitioner was awarded $130,000.00 for pain and suffering and $4,085.12 for unreimbursable expenses, totaling $134,085.12. The claim for lost wages was denied. The decision was issued by Chief Special Master Brian H. Corcoran on February 8, 2024. Petitioner counsel was Nancy Routh Meyers, and Respondent counsel was Alexa Roggenkamp. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01504-0 Date issued/filed: 2024-05-23 Pages: 14 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/02/2023) regarding 44 Ruling on Entitlement, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 1 of 14 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1504V HELEN ANGLEWICZ, Chief Special Master Corcoran Petitioner, v. Filed: August 2, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 30, 2020, Helen Anglewicz 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 following her receipt of an influenza (“flu”) vaccine on September 16, 2019, she suffered a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. Petition at ¶¶ 1, 24-25. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters. For the foregoing reasons described below, I find that Petitioner is entitled to compensation for a Table SIRVA. I am however deferring resolution of Petitioner’s damages claim (which includes past lost earnings associated with partial ownership of a 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-01504-UNJ Document 61 Filed 05/23/24 Page 2 of 14 small business; past pain and suffering; and past unreimbursable expenses) to allow for further discussion between the parties - and if necessary, transfer out of SPU. I. Relevant Procedural History Petitioner filed the medical records and the signed declaration required under the Vaccine Act at the outset of the case. Exs. 1-5 filed October 30, 2020 (ECF No. 1). On December 8, 2020, the case was deemed to be substantially complete and assigned to the SPU. Activation and Reassignment Order (ECF No. 8). Afterwards, Petitioner periodically updated the medical record file. Ex. 7 filed July 29, 2021 (ECF No. 16); Ex. 9 filed April 25, 2022 (ECF No. 29); Ex. 10 filed Oct. 18, 2022 (ECF No. 34) Ex. 12 filed Nov. 1, 2022 (ECF No. 37). She also filed two affidavits. Ex. 8 dated and filed in August 2021 (ECF No. 18); Ex. 11 dated and filed in October 2022 (ECF No. 35). On December 3, 2021, Petitioner conveyed a demand for pain and suffering; lost wages; and unreimbursed medical expenses. Status Report (ECF No. 22). On January 14, 2022, Respondent reported his willingness to discuss damages. Status Report (ECF No. 23). However, on March 15, 2022, Respondent provided his formal report and shifted to a settlement posture. See Rule 4(c) Report (ECF No. 25) at 6-7 (disputing the Table SIRVA requirements regarding onset and localization of the pain); see also Respondent’s Status Report (ECF No. 26) (stating that the case “may be appropriate for settlement”). Despite my initial reaction and encouragement (see, e.g., Scheduling Order filed March 28, 2022 (ECF No. 27)), the parties were unable to reach an informal resolution. Therefore, they duly briefed entitlement for the alleged Table SIRVA, and if it proved to be necessary, the appropriate award of compensation for said injury. Scheduling Order filed Sept. 8, 2022 (ECF No. 33); Petitioner’s Brief filed Oct. 24, 2022 (ECF No. 36); Respondent’s Response filed Dec. 16, 2022 (ECF No. 39); Petitioner’s Reply filed Jan. 6, 2023 (ECF No. 41). The matter is now ripe for adjudication.3 3 I also conclude that the medical records are sufficiently complete. Respondent initially requested “any additional records from Back to Work Physical Therapy or any other… physical therapy records.” Status Report filed June 11, 2021 (ECF No. 12). Petitioner subsequently filed Back to Work Physical Therapy’s response to her request for all medical records from the vaccination date (September 16, 2019) through to July 8, 2021. Exhibit 7 (ECF No. 16) at 2-3; see also Status Report filed Aug. 25, 2021 (ECF No. 19). Respondent again requested any outstanding PT records, specifically any that pre-dated Petitioner’s March 20, 2020, shoulder surgery. Rule 4(c) Report filed March 15, 2022 (ECF No. 25) at n. 2; see also Response filed December 16, 2022 (ECF No. 39) at n. 2. But Petitioner confirmed that she did not receive any formal PT prior to the surgery. Status Report filed April 21, 2022 (ECF No. 28); see also Reply at n. 3; accord Ex. 3 at 14-19 (indicating that Petitioner initially followed home exercises provided by an orthopedics PA). 2 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 3 of 14 II. Relevant Evidence I have reviewed all of the evidence filed to date, but will only summarize or discuss items directly pertaining to the determinations herein, as informed by the parties’ respective citations to the record and their arguments. Specifically: • Medical Records. Petitioner was 61 years old, with a non-contributory medical history, as reflected in her regular encounters at Land O’Lakes Primary Care in Florida. See generally Ex. 2. • On September 16, 2019, Petitioner received the subject flu vaccine in her right arm, at a Publix Pharmacy. Ex. 1 at 3. • On September 18, 2019, Tara Calise, APRN, at the primary care practice recorded Petitioner’s presentation “to get pneumonia vaccine… She had flu vaccine last week.” Ex. 2 at 54. However, Nurse Calise did not record the site of that prior vaccination, or any complaints or findings pertinent to the right arm. Id. at 54-55. Nurse Calise used Petitioner’s left arm for a blood pressure reading, and for administration of a Prevnar 13 (pneumococcal conjugate) vaccine. Id. at 54-55. Nurse Calise provided follow-up counseling on weight management, and recorded that “[Petitioner] ha[s] been traveling a lot recently and also had some events. She has not been able to focus on diet or exercise, She is thinking of joining a gym.” Ex. 2 at 54; see also id. at 52-53 (previous weight counseling appointment on August 16, 2019). • Next, on October 11, 2019, Stephanie Moore, APRN, at the primary care practice saw Petitioner for a chief complaint of: “Arm pain. Sore right arm since flu shot at Publix... Pain is radiating down her arm and ROM is affected. Pain started as soon as she received the injection.” Ex. 2 at 56. Nurse Moore did not record any physical exam of the right arm; she prescribed a four-day course of steroids to supplement over-the-counter Tylenol and ibuprofen. Id. at 56-57. • On October 29, 2019, Nurse Calise conducted a follow-up appointment for both 1) weight management and 2) right shoulder/ arm pain since the flu vaccine. Ex. 2 at 58 (carrying over history, verbatim, from the last encounter). As of October 29th, Petitioner reported feeling “a little better,” but limited range of motion and inability to recline on the right arm. Id. On physical exam, the right shoulder had painful/ decreased abduction, adduction, external and internal rotation, and flexion. Id. at 3 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 4 of 14 55. The right upper arm was tender on palpation. Id. A neurologic exam was unremarkable. Id. Nurse Calise did not offer any specific assessment or plan – recording that Petitioner would consult orthopedics. Id. • On October 29, 2019, Petitioner completed an intake form for the West Coast Musculoskeletal Institute – disavowing any existing employment, accident, lawsuit, or attorney in connection with her injury. Ex. 3 at 6. • On November 8, 2019, on the orthopedics practice’s more detailed intake form, Petitioner reported that the date of injury was “ever since flu shot on 9/16/19.” Ex. 3 at 7. That same day, Michael Shaver, PA-C, conducted the orthopedics initial evaluation – recording that Petitioner’s injury “began about 7 weeks ago when she received a flu shot with Publix. She saw her PCP who prescribed her steroid medication, which did not help her pain.” Id. at 14. Petitioner reported that the pain was intermittent, sharp to dull, and rated 5 – 6/10. Id. She was “tearful in the office today due to the pain she [was] experiencing.” Id. at 15. On exam, the right shoulder had full range of motion but pain on flexion and internal rotation; full strength; and positive Hawkin’s and Neer’s signs of impingement. Id. PA Shaver also recorded that an x-ray of the right shoulder, obtained that day, was unremarkable. Id. His assessment was right shoulder bursitis. Id. He administered a steroid injection to the right subacromial space “with excellent pain relief on this visit.” Id. at 15. He also recommended activity modification, “continu[ing] normal anti-inflammatory regimen,” and “start[ing] physical therapy for rotator cuff strengthening modalities” – for which he provided “patient education” on the shoulder joint. Id. at 16.4 • At the December 19, 2019, follow-up, PA Shaver recorded that Petitioner had “night pain which wakes her up when sleeping,” but “increased range of motion” and “significantly improved symptoms” overall. Ex. 3 at 18. He maintained the assessment of bursitis and recommended “undergo[ing] a course of physical therapy.” Id. at 18.5 There are no further records from this orthopedics practice. 4 While the November 8th note by PA Shaver references the start of “physical therapy” (Ex. 3 at 16), that could refer to home exercises. There are no corresponding order or records evidencing the start of formal physical therapy in November or December 2019. See also footnote 3 (concluding that the evidentiary record is complete, and that Petitioner did not undergo formal physical therapy prior to her March 2020 shoulder surgery). 5 As noted above, Petitioner did not undergo formal physical therapy prior to her March 2020 shoulder surgery. 4 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 5 of 14 • On January 31, 2020, Petitioner completed an intake form for the Tampa Bay Bone and Joint Center. Ex. 4 at 27-31. She reported a chief complaint of right-sided “upper arm shoulder pain” because of “flu shot.” Id. at 27. • At the February 3, 2020, initial consult, Frederick McClimans, D.O., recorded that Petitioner’s right shoulder injury was “Sharp, aching, unable to reach from behind. Pulling, popping, radiates down arm.” Ex. 4 at 26. Her pain rated 7/10. Id. at 23. The physical exam showed decreased range of motion with extension and internal rotation with pain, plus positive Neer’s and Hawkin’s tests for impingement. Id. Dr. McClimans assessed right shoulder pain, bursitis, and adhesive capsulitis – adding that “the flu shot may have aggravated the muscle which in turn aggravated the shoulder from not using it properly.” Id. at 24. He administered a steroid injection, and “gave a rx for PT exercises.” Id. • On February 18, 2020, Dr. McClimans recorded that the steroid injection had not helped, and Petitioner still rated her right shoulder pain at 7/10. Ex. 4 at 20-22. • Dr. McClimans ordered a February 20, 2020, MRI of the right shoulder, which visualized: “1. Complete, mildly retracted supraspinatus tendon tear. 2. Mild acromioclavicular joint osteoarthritis.” Ex. 4 at 45. • On March 9, 2020, Dr. McClimans recorded that Petitioner’s condition had not changed. Ex. 4 at 19. Her pain still rated 7/10; she had not taken any medications that day “so as not to mask any symptoms.” Id. The exam was largely unchanged, except that the Neer’s test was negative. Id. at 17. Dr. McClimans updated his assessment to right shoulder pain, adhesive capsulitis, impingement syndrome, and complete rotator cuff tear – while adding: “She has a bone spur in the top of her right shoulder causing pain and inflammation.” Id. at 17-18. • On March 20, 2020, Dr. McClimans performed surgery on Petitioner’s right shoulder – which included acromioplasty, release of the coacoacromial ligament; Mumford procedure; and excision of hypertrophied subacromial bursa. Ex. 4 at 32- 33. She was prescribed Levaquin, ibuprofen, and Percocet for post-surgical pain. Id. at 15-16. Her bandage was changed three days later. Id. at 12. • On April 6, 2020, Petitioner canceled a post-operative orthopedics appointment because she “did not feel comfortable coming in” (consistent with subsequent medical records, which reflect her concerns regarding the COVID-19 pandemic). Ex. 4 at 11. 5 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 6 of 14 • On April 21, 2020, Dr. McClimans recorded: “Only doing home program. Still aching, worse at night. Shldr ROM is tight. Has Barrett’s esophagitis. Alternates Aleve, Tylenol, ibuprofen, or ½ oxycodone if lot of activity. Difficulty radiating [raising?] up arm.” Ex. 4 at 10. She rated the pain as 3/10. Id. Dr. McClimans noted Petitioner’s concern about the COVID-19 pandemic upon discussing, and prescribing, formal PT. Id. at 8-9. • On April 24, 2020, Petitioner presented to Back to Work Physical Therapy. Ex. 7 at 5-8 (intake paperwork); id. at 14-17 (initial evaluation record). She reported a constant ache in the posterior and lateral right shoulder; occasional swelling with increased use; increased pain with overhead motions; and difficulty sleeping on back or the right side due to pain. Id. at 14. Her pain ranged from 2 – 8/10, currently 4/10. Id. Petitioner reported limitations in driving, grocery shopping, carrying objects, cleaning, and light meal preparation. Id. at 16. On exam, the right shoulder had decreased range of motion on all measures, and the serratus anterior muscle’s strength was weak (3+/5). Id. at 15. Petitioner “expressed interest in spacing [the recommended formal PT sessions] out to every other week due to concerns about COVID-19.” Id. at 16. The therapist also provided a home exercise program (“HEP”) via an online platform. Id. at 13, 16. • On May 19, 2020, Dr. McClimans recorded that “[Petitioner had performed] some therapy, mostly home exercises.” Ex. 4 at 7. Petitioner reported increased range of motion, “constant soreness,” and decreased pain managed with ice. Id. Her pain rating was 5/10. Id. at 5. On exam, she had normal range of motion with no documented impingement. Id. Dr. McClimans prescribed Voltaren (diclofenac sodium) topical gel. Id. at 5-6. • On July 21, 2020, the physical therapist recorded that Petitioner had not returned to formal PT. Ex. 7 at 13. The therapist had “attempted to reach [Petitioner] for status and to offer continued POC adherence via in clinic or telehealth” – but was apparently unsuccessful. Id. Thus, Petitioner was “considered d/c [discharged] at that time.” Id. Dr. McClimans certified the discharge summary. Id. • On July 22, 2020, Dr. McClimans again recorded that Petitioner was feeling well. Ex. 10 at 61. She could reach behind her back, but still had trouble reaching overhead. Id. She was using ibuprofen as needed for pain. Id. The exam findings were unchanged. Id. Dr. McClimans recorded that “the majority of her right shoulder pain has subsided at this time and… her remaining right shoulder pain is likely due to muscle soreness.” Id. She should continue home exercises, avoid overhead lifting that could aggravate the condition, otherwise return to normal 6 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 7 of 14 activities, and return as needed. Id. However, there are no further records from Dr. McCliman’s practice. • During an August 19, 2020, primary care encounter – focused on unrelated medication refills, and conducted via telemedicine – Nurse Calise recorded that Petitioner “had right shoulder surgery this tear and is getting back into exercise.” Ex. 10 at 8-9. Subsequent primary care encounters do not address the right shoulder, or any musculoskeletal complaints or objective findings. Ex. 10 at 10-20. • On January 5, 2022, Petitioner returned to Nurse Calise. Despite the billing code for “annual physical exam,” no physical examination could be conducted in light of the telemedicine setting. Petitioner obtained a physical therapy referral for 1) “right shoulder/ upper arm pain” and 2) “intermittent right-sided sciatica pain, for which she had “seen urgent care.” Ex. 10 at 21-22.6 • From January 19 – March 3, 2022, Petitioner attended fifteen (15) formal sessions at a new practice, Regional Rehab Physical Therapy Laser Center. See generally Ex. 9. March 22, 2022, is listed as a “cancelled date.” Id. at 4. • At a March 30, 2022, telemedicine encounter, Nurse Calise prescribed Meloxicam for Petitioner’s right shoulder pain. Ex. 10 at 24. • Intervening primary care encounters on April 6 and 24, 2022, do not reference shoulder pain. Ex. 10 at 27-28, 30- 31. • On April 26, 2022, Petitioner presented to the Florida Orthopedic Institute, where she met with Mark Mighell, M.D., for an evaluation of right shoulder pain. Ex. 12 at 16. Dr. Mighell recorded that the pain began with a flu vaccine and had been present for “6 months, 2 years,” but also recorded a “recurrence” of the pain. Id. at 17. He assessed early arthritis and post-surgical tightness, and administered a steroid injection to the right shoulder. Id. at 18; see also Ex. 10 at 41 (x-rays obtained by Dr. Mighell). • Dr. Mighell also noted that Petitioner had “underlying problems” with her lumbar and cervical spine, which were evaluated by his colleague Marc Weinstein, M.D., two days later. Ex. 12 at 13-15, 18. 6 Petitioner has not filed any urgent care records. 7 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 8 of 14 • Petitioner followed up regarding her right shoulder with Dr. Mighell on May 19, 2022, and regarding her back with Dr. Weinstein on July 25, 2022. Ex. 12 at 6-9, 10-12. • Later Recollections. As most relevant to the parties’ entitlement dispute, Petitioner recalls in her August 2021 affidavit that upon receiving the September 16, 2019, flu vaccine, she had “immediate” pain in her right arm. Ex. 8 at ¶ 3. The pharmacist said that sometimes the injection caused a little pain, but only for a few days. Id. Petitioner recalls that two days later, she reported her post-flu vaccine right arm pain to Nurse Calise, thus ensuring that the pneumococcal conjugate vaccine was administered in her left arm. Ex. 8 at ¶ 4. III. Ruling on Entitlement A. Legal Standards Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). Contemporaneous medical records are presumed to be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90– 2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). 8 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 9 of 14 In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,7 a petitioner must establish that she suffered an injury meeting the Table criteria, in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying QAI are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time frame; 7 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E). 9 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 10 of 14 (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10) (2017). B. Disputed QAI Criteria for Table SIRVA The first issue to be resolved is whether Petitioner has established by preponderant evidence that she suffered the onset of shoulder pain within 48 hours post-vaccination. 42 C.F.R. § 100.3(a)(XIV)(B); 42 C.F.R. § 100.3(c)(10)(ii). Respondent avers that Petitioner cannot prevail on this point because a medical record from essentially 48 hours post-vaccination – two days later, on September 16, 2019 – documents Petitioner’s report of receiving the subject vaccine – but does not document shoulder pain. Rule 4(c) Report at 5-6; Response at 7-10 (citing Ex. 2 at 54-55). Respondent avers that if Petitioner was indeed experiencing shoulder pain at the time, she would have reported it – and that the primary care provider, who had previously treated her for various complaints, with no limitation on the number of complaints per encounter, would have recorded it. Rule 4(c) Report at 5-6; Response at 8-9. Respondent avers that the omission of alleged post-vaccination pain is “especially noteworthy” because Petitioner was presenting for another vaccination. Rule 4(c) Report at 6; Response at 9. Respondent avers that later medical records and Petitioner’s recollections – describing pain since the vaccination – are inconsistent with this first record. Rule 4(c) Report at n. 3; Response at 8. In reaction, Petitioner avers that “Arm pain that lasts a few days following a vaccine is normal, if not common.” Brief at n. 4. Post-vaccination shoulder pain just two days later could thus reasonably be viewed as “unremarkable,” id., and not memorialized at a primary care encounter focused on other concerns.8 It is unnecessary to resolve whether Petitioner herself failed to report pain, or whether she reported pain but it was not recorded by the provider, during the encounter. Brief at n. 1. Either explanation is credible and not in conflict with the medical record. And 8 Indeed, the QAI criteria not elaborate on the severity or type of initial pain required within the onset period, to establish a SIRVA – which injury is better confirmed by other details, such as the persistence of the pain – obviously for over six months, to satisfy the statutory severity requirement – and the evolution of decreased range of motion. See Section 11(c)(1)(D)(i) (severity requirement); 42 C.F.R. § 100.3(c)(10)(i- iv) (QAI criteria for Table SIRVA). 10 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 11 of 14 the record contains circumstantial evidence supporting her allegations – specifically, the additional injection that day was not administered in her right arm. Respondent also gives insufficient weight to the subsequent medical records, beginning twenty-five (25) days post-vaccination – which reflect a consistent history of right shoulder pain beginning with the subject vaccination, and not starting at any specific point beyond 48 hours. These subsequent records are also fairly contemporaneous, and more focused on diagnosis and treatment of the right shoulder injury. They are therefore presumed to be accurate, even the history therein provided by Petitioner herself. Based on my review, a preponderance of the evidence supports that Petitioner suffered the onset of shoulder pain within 48 hours post-vaccination. The second issue to be resolved is whether Petitioner’s “pain and reduced range of motion (“ROM”) are limited to the shoulder in which the intramuscular vaccine was administered.” 42 C.F.R. § 100.3(c)10)(iii). In disputing this point, Respondent emphasizes the “reported symptoms outside of her right shoulder, including pain that radiated down her arm.” Rule 4(c) at 7; Response at 10. Respondent makes no further arguments about the significance of these records or how the QAI criteria should be interpreted. Petitioner indeed reported that the pain was “radiating down” her right arm – to her primary care provider approximately one month-post-vaccination (Ex. 2 at 56), and to an orthopedic surgeon over four months post-vaccination (Ex. 4 at 20-22, 23-26). Petitioner reported during those same encounters (and various others) that the pain was primarily in her right shoulder, however. The physical examinations, imaging, diagnoses, and treatments – culminating in surgery – were all focused on the shoulder. Moreover, Petitioner explains that her description was of “shoulder pain that is so intense that it radiates down the arm.” Brief at 9; accord Ex. 2 at 56 (pain warranting prescription steroids); Ex. 4 at 20-22, 23-26 (pain rating of 7/10, not helped by steroid injections). Petitioner maintains: “Radiating shoulder pain is still shoulder pain, and it cannot invalidate an otherwise proper SIRVA claim.” Brief at 9-10, citing Carlow v. Sec’y of Health & Hum. Servs., No. 19-1449V, 2022 WL 3335592, at *3 (Fed. Cl. Spec. Mstr. July 12, 2022) (“At most, instances of complaints of pain in an area outside of the shoulder region are relevant to Petitioner’s damages. But they do not defeat an otherwise- meritorious SIRVA claim – especially where there is ample and preponderant evidence of consistent primary shoulder pain.”). Based on a totality of the circumstances, including the lack of further argument from Respondent, I conclude that Petitioner’s compensable injury fulfills 42 C.F.R. § 100.3(c)(10)(iii). 11 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 12 of 14 There is also sufficient evidence that Petitioner has satisfied the other QAI criteria. See 42 C.F.R. § 100.3(c)(10)(i), (iv). Respondent does not identify any contributory medical history. Rule 4(c) Report at 1; Response at 1. Additionally, when discussing the requirements for a Table SIRVA, he does not mention another condition or abnormality which would explain Petitioner’s right shoulder pain. And a thorough review of the record in this case does not reveal either a prior or current condition which would prevent Petitioner from satisfying these requirements. C. Other Requirements for Entitlement All other elements of a Table SIRVA claim have been preponderantly established. Accordingly, Petitioner need not prove causation-in-fact. Section 11(c)(1)(C). However, she must satisfy the other requirements of Section 11(c) regarding the vaccination received, the duration and severity of her injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D). Respondent does not dispute that Petitioner has satisfied these requirements in this case, and the overall record contains preponderant evidence which fulfills them. IV. Damages First, Petitioner argues that her Table SIRVA caused past pain and suffering warranting an award of $150,000.00. Brief at 12-20; see also Reply at 3-8. Respondent proposes a lower award of $105,000.00 as more reasonable and appropriate based on his assessment of Petitioner’s past pain and suffering. Response at 10-16. Second, Petitioner seeks $28,074.05 for past lost wages resulting from her Table SIRVA. Brief at 10, citing Section 15(a)(1). As stated in her affidavit, she and her husband run a commercial and industrial LED lighting business. Ex. 11 at ¶ 2. She has a 50% ownership stake in the company; and serves as the Vice President, overseeing finances and administrative needs, and also assisting on sales calls and lighting installation jobs. Id. Petitioner avers that at the worst of her shoulder injury and while recovering from the necessary surgery in March 2020, she was not able to work – resulting in a shift of responsibility onto her husband and lost earnings to the business. Id. at ¶ 3. She does not take a traditional salary or regular paychecks, instead taking periodic distributions from the company. Id. at ¶ 4. She avers that 50% of the differential between the business’s gross profits in 2019 and 2020 is “attributable to me and represents a fair approximation of the amount my share of business profits suffered because of my vaccine injury.” Id. at ¶ 9; see also Exhibit 11 – Attachment 1 (ECF No. 35 at 6-9) (business profit and loss statements from 2018 – 2020). That amount is $33,102.59. Id. Accounting for a $12,400.00 standard deduction, the taxable lost income is $20,801.59. Brief at 11. 12 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 13 of 14 Applying offsets for federal income taxes at 12% ($2,496.19) and FICA ($2,532.35), Petitioner’s claim for net lost earnings is $28,074.05. Id. She is a resident of Florida, which has no state individual income tax. Id. Petitioner recognizes that as a business owner, her lost earnings calculation is necessarily “atypical” – but she requests consideration of what she has presented, and she is willing to provide “any additional financial information regarding her business that the Court would view as helpful in assessing her lost wages claim.” Brief at n. 7. Respondent maintains that Petitioner has provided insufficient information to support any award for lost wages – questioning whether the shoulder injury prevented performance of bookkeeping or other administrative tasks; whether any losses attributable to the shoulder injury could have been mitigated; and whether any portion of the losses were due instead to the COVID-19 pandemic. Respondent also argues that the inquiry should focus on net profits after accounting for ordinary business expenses, rather than the gross profit figures presented by Petitioner. Response at 16-18. In her Reply, Petitioner insists that she has documented “as best she could”; she should not be “ineligible” for an award of lost earnings because she is a small business owner; and that the Court may use its discretion in considering the pandemic’s impacts on her business. Reply at 8. Otherwise, the parties are at least close to consensus on an award for past unreimbursable expenses. See Brief at 12 (claiming $5,998.50); Response at 16 and n. 5 (finding adequate documentation for $4,058.12); Reply at 8 (indicating acceptance of Respondent’s figure). Upon consideration of both parties’ positions, I see a possibility for informal resolution of damages. Petitioner recognizes that her lost earnings claim is “atypical” – certainly, for what is typically resolved in SPU. Respondent has raised potentially valid points about whether Petitioner was completely unable to perform any job duties, and during which specific period of time; the option of hiring temporary help; the pandemic’s potential disruption on her business; and the consideration of gross versus net profits. Petitioner should not be penalized due to her status as a business owner – but that is relevant to whether the lost earnings claim can be resolved conclusively within SPU. Moreover, the claimed business impacts could reasonably be considered as part of Petitioner’s pain and suffering. And on that component, the medical records document Petitioner’s initial concerns about any in-person encounters, chiefly formal PT, immediately following her March 20, 2020, shoulder surgery in light of the emerging COVID-19 pandemic. But that is followed by a substantial gap in documentation of her 13 Case 1:20-vv-01504-UNJ Document 61 Filed 05/23/24 Page 14 of 14 shoulder condition – which suggests that her ongoing concerns were not so severe. There may also be outstanding medical records that would be relevant to a comprehensive damages determination. See Ex. 10 at 21 (referencing urgent care encounter, which is not in the existing record). Thus, I will defer a damages determination at this time – to allow for further discussion between the parties and if necessary, transfer out of SPU. Conclusion and Scheduling Order For all the reasons discussed above and based on consideration of the entire record, I find that Petitioner’s right shoulder injury meets the definition for a Table SIRVA. Thus, Petitioner is entitled to compensation in this case. The parties shall explore the potential for informal resolution of damages – recognizing that if a tentative settlement is not reached by the end of calendar year 2023, the case will likely be transferred out of SPU and randomly assigned to a special master for further proceedings. Within 45 days, by no later than Monday, September 18, 2023, the parties shall file a joint status report proposing further proceedings with regard to the resolution of damages. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 14 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01504-1 Date issued/filed: 2024-05-24 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 02/08/2024) regarding 49 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1504V HELEN ANGLEWICZ, Chief Special Master Corcoran Petitioner, v. Filed: February 8, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 30, 2020, Helen Anglewicz 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 following her receipt of an influenza (“flu”) vaccine on September 16, 2019, she suffered a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. Petition at ¶¶ 1, 24-25. I determined Petitioner was entitled to damages, but deferred resolution of that issue, to allow the parties to attempt to resolve it themselves – but they were unable to do so. For the foregoing reasons, I find that Petitioner is entitled to compensation in the total amount of $134,085.12 (representing $130,000.00 for actual pain and suffering, plus $4,085.12 for unreimbursable expenses). 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-01504-UNJ Document 62 Filed 05/24/24 Page 2 of 8 I. Relevant Procedural History The procedural history leading up to the Ruling on Entitlement issued on August 2, 2023 (ECF No. 44)3 is summarized therein – and incorporated by reference here. Afterwards, the parties confirmed that they were unable to informally resolve damages reiterated their request for a decision based on the damages briefing previously submitted. Joint Status Report filed Sept. 14, 2023 (ECF No. 47). In light of the case’s age and the atypical nature of the damages disputes – particularly with respect to lost wages – I transferred the case out of SPU and onto my regular docket for further proceedings. Notice of Reassignment entered on Nov. 29, 2023 (ECF No. 48). Petitioner followed up again, stating that the parties “presume[d] that the Court would enter a damages award based on the briefs previously filed and that nothing further is required of the parties at this time,” noted via Informal Communication entered on Jan. 12, 2024 (Non-PDF). The matter is now ripe for adjudication.4 II. Relevant Evidence After a complete review of the record in this case, I find that Section II of the Ruling on Entitlement (ECF No. 44) at 3 – 8, represents an accurate summary of the relevant facts in this matter. That aspect of the Ruling on Entitlement is fully incorporated and adopted, although additional facts pertinent to the damages determination will be added here. III. Damages Under the Vaccine Act, 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). In another 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 incorporate 3 The Ruling on Entitlement was withheld from public posting in light of Petitioner’s timely Motion of Redaction on Aug. 14, 2023 (ECF No. 45); see also Response filed on Aug. 25, 2023 (ECF No. 46); Order deferring ruling on Nov. 29, 2023 (Non-PDF). 4 I also conclude that the medical records are sufficiently complete for adjudication of damages. The Ruling on Entitlement identified potentially outstanding urgent care records – but upon further review, those seem most likely to be from late 2021 or January 2022 – which is significantly attenuated from both Petitioner’s initial treatment course for SIRVA and the claimed lost wages, and therefore, not crucial for resolving those issues. 2 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 3 of 8 my prior discussion in Sections I and II of McKenna v. Sec’y of Health & Hum. Servs., No. 21-0030V, 2023 WL 5045121, at *1-3 (Fed. Cl. Spec. Mstr. July 7, 2023).5 A. Lost Earnings The Vaccine Act provides, where the injured party’s “earning capacity is or has been impaired by reason of such person’s vaccine-related injury,” for recovery of “actual and anticipated loss of earnings determined in accordance with generally recognized actuarial principles and projections.” Section 15(a)(3)(A). Lost earnings calculations must be performed in a “cautious manner.” Brown v. Sec’y of Health & Hum. Servs., No. 00- 0182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2005). And a lost earnings award “may not be based on speculation.” Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2022 WL 10469047, at *3 (Fed. Cl. Spec. Mstr. Sept. 2, 2022). Here, Petitioner requests $28,074.05 for past lost earnings. Brief at 12. She represents that she and her husband have equal ownership in a commercial and industrial LED lighting business. Ex. 11 at ¶ 2. She serves as Vice President, oversees the finances and administrative needs; and has assisted on sales calls and lighting installation jobs. Id. Her husband is the President, overseeing sales and installations. Id. at ¶ 4. Petitioner avers: “During the worst of my vaccine injury, and while I was recovering from surgery, I was unable to work. My responsibilities necessarily fell to my husband during this time, which took his time and attention away from sales and installations. The business suffered as a result.” Id. at ¶ 3. “As owners, my husband and I do not take a traditional salary and do not receive a paycheck. Instead, we make periodic distributions from the company to ourselves.” Id. at ¶ 4. She also avers that based on her 50% ownership share, 50% of each year’s profits are attributable to her. Id. at ¶¶ 4 – 8; id. at pages 7 – 9 (business’s profit and loss statements in 2018, 2019, 2020); Brief at 11 – 12 (multi-step calculation from gross profits to net loss earnings). In opposing any award for past lost earnings, Respondent questions the extent that Petitioner’s shoulder injury prevented her from working and suggested that the Pandemic also hurt her business’s profits in 2020. Response at 17. Respondent also contends that Petitioner has “provided insufficient information to calculate actual and anticipated loss of earnings in accordance with generally recognized actuarial principles and projections” – which should arguably focus on net profit after deduction for ordinary business expenses, consider whether Petitioner could have mitigated any business impacts by temporarily compensating someone else to perform at least some of her 5 This prior discussion informs my determination of damages notwithstanding that this case was transferred out of SPU. 3 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 4 of 8 responsibilities, and include additional detail about Petitioner’s responsibilities and her hours. Id. at 17 – 18. Petitioner replies that she should not be “ineligible” for an award of lost earnings because she is a small business owner; she has documented her business losses “as best she could”; “there is no way to quantify a percentage of business losses that are attributable to the COVID-19 pandemic,” and that the Court may use its discretion in considering the pandemic’s impacts on her business. Reply at 8. She has offered no additional evidence (not in the record at the time entitlement was decided) in support of this damages component. I first emphasize that Petitioner’s claim is appropriately limited to 2020, coinciding with the acute treatment for her shoulder injury. But as noted in the pain and suffering analysis, I find that the alleged business impacts attributable to her shoulder injury were most likely centered in January – April 2020, and certainly not continuing beyond July 2020, at which point she had achieved a substantial recovery and discontinued treatment. But this still leaves the question of what quantum of damages is justified, given the existing record. In her Reply, Petitioner concedes that the Pandemic caused at least some disruptions to her business in 2020. From a review of the 2019 – 20 annual statements, the most dramatically decreased line item is “Sales – Commissions.” Ex. 11 at 8 – 9. While Petitioner’s affidavit suggests that her vaccine injury took her husband away from sales, it is also reasonable to conclude that they, and potential customers, were avoiding in-person contact during the Pandemic throughout 2020. (Consistent with Petitioner’s own concerns, documented in both the contemporaneous medical records and her later affdiavits.) Respondent has raised additional, not unreasonable questions about how to calculate the business’s profits that can be attributable to Petitioner – but there appears to be limited available documentation on those questions. In the end, in making any damages calculation, I am limited to what is “reasonable,” and specifically what figures proposed have sufficient evidentiary support. Here, Petitioner has both failed to defend the specific sums requested, but also more broadly not demonstrated that the claimed lost wages were in fact lost due to the vaccine injury, as opposed to the negative business impacts of the Pandemic or simply market vagaries. Accordingly, no lost wage award is appropriate. This does not, however, work a great injustice upon the Petitioner, since the pain and suffering award can be calculated to take into account the impact of her SIRVA on her ability to carry out her business interests. 4 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 5 of 8 B. Pain and Suffering 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). 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 this case, awareness of the injury is not disputed. The record reflects that at all times Petitioner was a competent adult, with no impairments to her mental faculties or capacity. I therefore analyze principally the severity and duration of Petitioner’s injury. In performing this analysis, I have reviewed the record as a whole, including all medical records, declarations, affidavits, 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 here. Petitioner maintains an aware of $150,000.00 is appropriate. See Brief at 12 – 20; Reply at 3 – 8.7 In contrast, Respondent argues for the lesser sum of $105,000.00. Response at 10 – 16.8 The medical records reflect that Petitioner’s left shoulder pain began within 48 hours after the September 11, 2019, vaccination. Although the shoulder pain was not itself complained of within that timeframe, it was documented beginning 25 days later, and consistently thereafter. The initial treatment course included two primary care evaluations for shoulder pain especially with movement, prompting a 4-day course of oral steroids (in addition to over-the-counter Tylenol and ibuprofen). Roughly two months post-vaccination, Petitioner’s pain rated 5 – 6/10, particularly 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)). 7 Citing Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for actual pain and suffering); Wilson v. Sec’y of Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. March 18, 2021) ($130,000.00); Nute v. Sec’y of Health & Hum. Servs., No.18-0140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019) ($125,000.00). 8 Wilt v. Sec’y of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020) (awarding $110,000.00 for actual pain and suffering); Wylie v. Sec’y of Health & Hum. Servs., No. 20-1314V, 2022 WL 17968929 (Fed. Cl. Spec. Mstr. Dec. 7, 2022) ($108,000.00); Weed v. Sec’y of Health & Hum. Servs., No. 18-1473V, 2021 WL 1711800 (Fed. Cl. Spec. Mstr. Mar. 30, 2021) ($105,000.00). 5 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 6 of 8 with movement, and she was first documented to have positive Neer’s and Hawkins signs (indicating impingement). Shoulder movement was painful, if not objectively restricted. She was instructed on home exercises. She received a steroid injection (Kenalog) which relieved her pain temporarily. But by about four months post-vaccination, on February 3, 2020, Petitioner’s pain had increased to 7/10, Neers and Hawkins signs remained positive, and she was documented for the first time to have objective limitations in range of motion (specifically extension and internal rotation – although the extent of limitation is not specifically noted) leading to an assessment of adhesive capsulitis. A second steroid injection was administered, which did not provide any relief. The MRI findings also included a complete supraspinatus tear and mild osteoarthritis. About six months post-vaccination, on March 20, 2020, Petitioner underwent surgery on her shoulder, which involved acutely worsened pain as evidenced by the orders for prescription-strength ibuprofen and Percocet.9 She took these medications for approximately one month after surgery (the length of the prescriptions), by which point her pain had decreased to 3/10, and she had “improving” but still “limited” internal and external rotation, and her orthopedic surgeon authorized formal physical therapy (“PT”). At the April 24, 2020, PT initial evaluation, Petitioner had a similar pain rating and objective deficits. While she did not return to PT thereafter, the medical records reflect her discomfort with in-person encounters due to the Pandemic and that the therapist also provided a home exercise program via an online platform. I accept Petitioner’s concerns during the height of the Pandemic as a credible explanation for avoiding in-person treatment. I also accept that her shoulder injury was sufficiently severe to at least partially disrupt her role (primarily between January and April 2020) as vice president of a small business, both “oversee[ing] its finances and administrative needs [and…] assist[ing] on sales calls and lighting installation jobs.” Ex. 11 at ¶ 2. The record similarly establishes that Petitioner followed her home exercise program for roughly three months, coinciding with her last orthopedics evaluation on July 27, 2020. At that time, the majority of her pain had subsided, and she was cleared to return to normal activities. Ex. 10 at 61 - 62.10 Petitioner confirmed that her shoulder was 9 A single medical record includes Petitioner’s apparent report of taking oxycodone post-operatively, see Ex. 4 at 10, but no other references to oxycodone have been identified. This notation is likely incorrect and instead refers to the prescription for Percocet (5-325 mg, 30 tablets total, with no refills) to help manage Petitioner’s post-surgical pain. See e.g., Ex. 4 at 12, 16. 10 Petitioner’s Damages Brief at 4, 14 inaccurately characterizes Ex. 4 at 4 – 7, medical records from approximately eight months after the September 11, 2019, flu vaccine, that is May 19, 2020, as marking 6 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 7 of 8 doing well in subsequent primary care encounters. Ex. 10 at 10 – 20. Based on the medical record evidence, I conclude that Petitioner’s SIRVA was moderately severe for approximately ten months, or through July 2020, at which point she had achieved at least a substantial recovery. There is a question about Petitioner’s status thereafter. Petitioner alleges her right shoulder “continued to deteriorate throughout the remainder of 2020 and 2021 [and…] was especially painful after periods of activity [but…] it was very difficult to obtain treatment for [her shoulder] because of shutdowns and restrictions related to the COVID- 19 Pandemic.” Ex. 11 at ¶¶ 12 – 13. But this account of an ongoing right shoulder injury is inadequately substantiated. The existing medical records indicate at least a substantial recovery, Petitioner did not respond to offers of PT “in clinic or via telehealth” in July 2020, Ex. 7 at 13; her orthopedist noted that she could return “as needed” but she never did so, Ex. 10 at 61; and she attended four primary care encounters for other concerns in August – December 2020. Ex. 10 at 10 – 20. In addition, when Petitioner sought further treatment for her right shoulder in early 2022, she established care with new providers who did not record a history relating back to the September 2019 vaccination. An orthopedist did record such a history – but also that Petitioner had suffered a “recurrence” of right shoulder pain at some unspecified time, and that treater’s assessments were post-surgical tightness, arthritis, and potentially cervical spine pathology. Ex. 12 at 17. The treater also maintained that she “may have some continued pain given her underlying mild arthritis,” Ex. 12 at 12, which is distinguishable from a SIRVA. Overall, there is not preponderant evidence that Petitioner had ongoing right shoulder pain through 2020 – 22 that was at least substantially explained by her SIRVA, as would be necessary to incorporate into the damages award. Petitioner maintains her case is comparable to Reed (awarding $160,000.00), which indeed featured a similar initial course (e.g., relatively prompt treatment and moderately severe pain leading up to surgery approximately six months post-vaccination). I do not assign a significant difference between the formal PT sessions seen in Reed, and this Petitioner’s adherence to a home exercise program during spring – summer 2020. But the Reed opinion accepted that the individual in question had suffered residual pain and reduced range of motion that was attributable to her SIRVA for over two years, which caused long-term pain management issues and significant impacts on her personal life. 2019 WL 1222925, at *15 – 16. The same has not been shown in this case. “the final post-operative follow-up appointment” (emphasis added). Petitioner avers that Ex. 4 at 4 - 7 supports a conclusion that Petitioner was discharged with “constant aching in her shoulder” and pain rating 5/10, which she argues, persisted until she returned for treatment in 2022. But Petitioner’s framing omits the additional and truly final post-operative follow-up appointment on July 27, 2020, see Ex. 10 at 61 – 62. 7 Case 1:20-vv-01504-UNJ Document 62 Filed 05/24/24 Page 8 of 8 Nute (awarding $130,000.00) is also factually distinguishable – because that individual received three cortisone injections during the initial treatment course; suffered moderate pain for a longer period, nine months, before undergoing surgery; and had less severe symptoms for an additional one to two months post-surgery. 2019 WL 6125008, at *11 – 12. And while Petitioner emphasizes that in Nute, a shoulder MRI’s findings were interpreted as normal, see Brief at 20, the subsequent surgery revealed “significant bursitis” requiring a biceps tenodesis and other intervention, roughly comparable to the injury in this case. Id. at *3.11 Respondent correctly observes that like this case, Weed, Wilt, and Wylie (awarding between $105,000.00 - $110,000.00) each featured an initial moderately severe injury, surgical intervention, and substantial recovery within approximately ten months post- vaccination. However, I find that this Petitioner’s initial injury was somewhat more severe, given that it required not only oral pain medications, but two steroid injections prior to surgery – and more post-operative orthopedic management. I also recognize the temporary stress and disruption to Petitioner’s role in running a business as reasonably taken into account in the pain and suffering award. Therefore in my discretion, I find that it is appropriate to make a higher award - $130,000.00 – for Petitioner’s actual pain and suffering. Conclusion For all the reasons discussed above and based on consideration of the entire record, I find that Petitioner is entitled to damages in the form of a lump sum payment of $134,085.12 (representing $130,000.00 for actual pain and suffering, plus $4,085.12 for actual unreimbursable expenses).12 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.13 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 11 Petitioner also cites Wilson (awarding $127,500.00) – but that is not an easy comparison because of factors including the absence of any cortisone injections and the initiation of PT prior to surgery. 2021 WL 1530731 at *3. 12 The parties have stipulated to the expenses. Response at 16; Reply at 8. 13 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 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01504-cl-extra-10735204 Date issued/filed: 2024-05-28 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268614 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1504V HELEN ANGLEWICZ, Chief Special Master Corcoran Petitioner, v. Filed: March 6, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. ORDER DENYING MOTION FOR REDACTION1 On October 30, 2020, Helen Anglewicz 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 following her receipt of an influenza (“flu”) vaccine on September 16, 2019, she suffered a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. Petition at ¶¶ 1, 24-25. The case was assigned to the Office of Special Masters (“OSM”)’s Special Processing Unit (“SPU”). On August 2, 2023, I issued a Ruling on Entitlement which included some discussion of the damages issues that remained to be resolved, including Petitioner’s lost earnings claim. Ruling on Entitlement (ECF No. 44). On August 14, 2023, Petitioner filed a timely Motion for Redaction (ECF No. 45). Respondent did not take a position regarding 1 Because this Order 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). To the extent that Petitioner would seek further redaction, 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. 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). the request for redaction. Response filed Aug. 25, 2023 (ECF No. 46). I deferred ruling on the motion. Accord Order entered Nov. 29, 2023 (Non-PDF). On February 8, 2024, I issued a Decision awarding Damages (ECF No. 49), and also warned that on the showing to date, I was unlikely to find sufficient grounds for redaction. Scheduling Order (ECF No. 50). However, Petitioner was afforded one further opportunity to further substantiate her request – being sure to address the applicable legal standard and to furnish supporting evidence and proposed redacted versions of the filings at issue. Id. Petitioner did not file anything further regarding redaction by the stated deadline of February 22, 2024 (or request any extension to do so).3 For the following reasons, Petitioner’s Motion for Redaction (ECF No. 45) is denied. I. Petitioner’s Motion for Redaction Petitioner requests the redaction of her name to her initials within the case caption. Motion at 1. Her sole rationale, quoted in its entirety, is as follows: “The Court references the Petitioner’s personal financial information, including earnings and income, which the Petitioner would prefer to remain confidential.” Id. As noted above, Petitioner has declined to elaborate on her request. Respondent has not taken a position regarding the request for redaction. II. Legal Standard I have previously discussed in other decisions the Vaccine Act’s treatment of requests to redact Program decisions and rulings. See generally K.L. v. Sec’y of Health & Human Servs., No. 12-0312V, 2015 WL 11387761, at *2-4 (Fed. Cl. Spec. Mstr. Feb. 27, 2015), mot. for review den’d,123 Fed. Cl. 497 (2015) (denying a request to redact petitioner’s name and description of illnesses). Generally, information provided in vaccine proceedings may not be disclosed without the written consent of the party providing the information. Section 12(d)(4)(A); Vaccine Rule 18(a). But the Act also provides: (B) A decision of a special master or the court in a proceeding shall be disclosed, except that if the decision is to include information – (i) Which is trade secret or commercial or financial information which is privileged and confidential, or 3 However, the parties filed a Joint Notice Not to Seek Review on February 14, 2024 (ECF No. 51), enabling entry of judgment for Petitioner’s compensation on February 15, 2024 (ECF No. 52). 2 (ii) Which are medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy, And if the person who submitted such information objects to the inclusion of such information in the decision, the decision shall be disclosed without such information. Section 12(d)(4)(B); accord Vaccine Rule 18(b). Some levels of redaction are explicitly recognized as reasonable in the context of Program cases. In particular, the Vaccine Rules allow the initials of a minor to be used in the petition’s caption when filed. Vaccine Rule 16(b). By contrast, adult petitioners’ names are not afforded automatic protection; instead, adult claimants must affirmatively establish a basis for redaction. Thus, the Act assumes (consistent with the approach in most federal litigation) that an adult claimant’s name will be disclosed in the context of publication of a Vaccine Program decision. Program case law has not established a consistent “rule” for how redaction requests should be analyzed and treated. Compare W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440, 460-61 (Fed. Cl. 2011) aff’d, 704 F.3d 1352 (Fed. Cir. 2013) (analogizing Vaccine Act’s privacy concerns to treatment of similar issues under the Freedom of Information Act, claimant’s name was properly subject to redaction from decision) with Langland v. Sec’y of Health & Human Servs., No. 07-0036V, 2011 WL 802695, at *7-8 (Fed. Cl. Spec. Mstr. Feb. 3, 2011), mot. for rev. denied on non-relevant grounds, 109 Fed. Cl. 421 (2013) (petitioners not entitled to redaction of names from decision where they failed to establish compelling grounds for so doing). Langland adopts a more stringent approach, while W.C. emphasizes a balancing test that weighs a petitioner’s privacy interests against “the public purpose of the Vaccine Act.” W.C.,100 Fed. Cl. at 460-61; K.L., 2015 WL 11387761, at *2-3. In either case, however, a petitioner needs to make some showing to justify the relief of redaction; redaction is not available simply at a petitioner’s beck and call. W.C., 100 Fed. Cl. at 460 (balancing of interests favors redaction “where an objection [to disclosure] is made on reasonable grounds”) (emphasis added). I have permitted redaction in cases where such a specialized showing was made without reconciling these two competing standards or choosing one over the other. See, e.g., K.L. v. Sec’y of Health & Human Servs., No. 12-0312V, 2015 WL 11882259 (Fed. Cl. Spec. Mstr. Oct. 30, 2015) (granting petitioner’s second request to redact only her name to initials which was accompanied by additional information regarding the potential harm she may suffer regarding her employment). 3 The Court of Federal Claims recently confirmed: “Each request for redaction must be made by applying the specifics in the case in which the redaction request is made, and… provide the necessary analysis regarding the current petitioner to explain the specific circumstances which would make redaction inappropriate [or appropriate].” K.N. v. Sec’y of Health & Hum. Servs., No. 17-0722V, 2023 WL 6295167 Fed. Cl. 142, 156 (Fed. Cl. 2023). III. Analysis Under the correct standard, a petitioner’s general concern for privacy, shared by many vaccine case petitioners, is not by itself a sufficient reason for redaction, especially when there is a strong public interest in the information’s disclosure. See W.C., 100 Fed. Cl. at 461. But Petitioner has not offered any particular evidence, information, or argument that her financial information is truly privileged, confidential, and/or an unwarranted invasion of privacy under the Act. Additionally, the public has a legitimate interest in compensation awarded under the Act – and in the nature of disputes that can be expeditiously resolved in SPU. Thus, Petitioner has made an insufficient showing for the redaction she seeks. IV. Conclusion For the reasons set forth above, Petitioner’s Motion (ECF No. 45) is denied. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01504-cl-extra-10734964 Date issued/filed: 2024-06-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268374 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1504V HELEN ANGLEWICZ, Chief Special Master Corcoran Petitioner, v. Filed: May 20, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On October 30, 2020, Helen Anglewicz 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 following her receipt of an influenza vaccine on September 16, 2019, she suffered a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. Petition at ¶¶ 1, 24-25. I issued a ruling finding Petitioner entitled to compensation on August 2, 2023 (ECF No. 44), and a decision awarding compensation to Petitioner on February 8, 2024 (ECF No. 49), following briefing by the parties. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $63,098.78 (representing $62,379.50 for fees and $719.28 for costs). Petitioner’s Motion for Fees and Costs filed Apr. 12, 2024, ECF No. 55; ECF 55-1 at 17. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred no out-of-pocket expenses. ECF No. 55-2. Respondent reacted to the motion on April 22, 2024, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 56. The same day, Petitioner filed a reply stating that Petitioner “concurs with Respondent’s recommendation.” ECF No. 57. Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees to be awarded appropriate, for the reasons set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. 2 Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES A. Hourly Rates Petitioner requests hourly rates for attorneys and paralegals at Turning Point Litigation performing work in this matter as follows: 2020 2021 2022 2023 2024 Nancy Meyers, Esq. $400 $430 $460 $490 $530 L. Cooper Harrell, Esq. X X $430 $470 $510 Paralegals $150 $155 $160 $165 $180 ECF No. 55-1 at 1-17. The hourly rates requested for all work performed by Ms. Meyers and paralegals through 2023, and for Mr. Harrell through 2022 are reasonable and consistent with prior determinations. Additionally, Petitioner has also requested a 2024 attorney hourly rate of $530 for work performed by Nancy Meyers - representing a rate increase of $40,3 and a 2024 paralegal hourly rate of $180 - representing a rate increase of $15. Id. at 1, 15-17. I find these 2024 hourly rates to be reasonable, and will therefore be adopted. However, the 2023 and 2024 attorney hourly rates requested for L. Cooper Harrell require adjustment. For his 2023 work, Mr. Harrell had 21 years of overall experience, but less than one year of experience in the Vaccine Program.4 Thus, his 2023 hourly rate should fall 3 Although this yearly increase is greater than I normally would allow, it is due to the arguably lower hourly rate assigned to Ms. Meyers 2023 work, not because her requested 2024 rate is too high. 4 An attorney’s level of experience is calculated at the beginning of each year and is generally based upon the attorney’s bar date. See McCulluch v. Sec’y of Health & Hum. Servs., No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (providing the framework for determining the appropriate compensation for attorneys' fees based upon the attorneys' experience). No adjustment is made for the exact month when the attorney passed the bar. Because he was first barred in 2001, Mr. Harrell had 21 years of experience at the beginning of 2023. Petitioner appears to be using an incorrect method when calculating levels of experience as she lists Mr. Harrell’s overall level of experience for 2024, as 23 years. ECF No. 52-1 at 1. Likewise, she has listed a level of experience one year greater than is accurate for all attorneys. Id. Petitioner’s counsel should note this error and make the necessary correction in future motions. 3 within the range allowed for attorneys with 20 to 30 years of overall experience ($450 - $534), albeit on the lower end of this range.5 Properly reflecting these levels of experience, Mr. Harrell’s 2022 hourly rate ($430) is close to the minimal for the 2022 range ($427 - $507).6 After obtaining only one more year of experience within this ten year range, Mr. Harrell has requested a 2023 hourly rate of $470 - representing a $40 increase, placing him almost one-fourth of the distance above the 2023 minimal amount ($450). For Mr. Harrell’s 2024 work (when he would have had 22 years of overall experience), Petitioner requested $510 per hour – representing a further $40 increase, placing him at almost the mid-point for the range for 20 to 30 years of experience ($475 - $563).7 Although the quality of Mr. Harrell’s work is good, both his lower overall and vaccine-related experience dictates the application of slightly lower hourly rates. Thus, I will award attorney’s fees for the work performed by Mr. Harrell in 2023, using a rate of $460 per hour and in 2024, using a rate of $490. This results in a reduction of $110.00 from the attorney’s fees.8 B. Hours Billed Regarding the number of hours billed, however, I deem the total amount of time devoted to briefing entitlement and damages to be excessive. See Respondent’s Rule 4(c) Report, filed Mar. 15, 2022, ECF No. 25; Petitioner’s Brief Regarding Entitlement and Damages, filed Oct. 24, 2022, ECF No. 36; Petitioner’s Reply in Further Support of Entitlement and Damages, filed Jan. 6, 2023, ECF No 41. Petitioner’s counsel expended approximately 44.4 hours drafting the entitlement and damages brief, and 21.5 hours drafting the responsive entitlement and damages brief, totaling 65.99 hours. ECF No. 55- 5 See OSM Attorneys’ Forum Hourly Rate Fee Schedule: 2022 which can be found on the Court’s website at www.uscfc.uscourts.gov (last visited May 6, 2024). 6 See OSM Attorneys’ Forum Hourly Rate Fee Schedule: 2023 which can be found on the Court’s website at www.uscfc.uscourts.gov (last visited May 6, 2024). 7 See OSM Attorneys’ Forum Hourly Rate Fee Schedule: 2024 which can be found on the Court’s website at www.uscfc.uscourts.gov (last visited May 6, 2024). 8 This amount is calculated as follows: ($470 - $460) x 10.4 hrs. + ($510 - $490) x 0.3 hrs. = $110.00. 9 This total is calculated as follows: 3.1 hours billed on 10/19/22, 10/20/22, 10/22/22, and 10/24/22, billed by Nancy Meyers at a rate of $460 per hour; 0.5 hours billed on 1/3/23, billed by Nancy Meyers at a rate of $490; 52.2 hours billed on 9/8/22, 9/29/22, 10/7/22, 10/11/22, 10/12/22, 10/14/22, 10/16/22, 10/17/22, 10/18/22, 10/19/22, 10/23/22, 10/24/22, 12/9/22, 12/29/22, 12/30/22, and 12/31/22, billed by L. Cooper Harrell at a rate of $430; and 10.1 hours billed on 1/1/23, 1/2/23, 1/3/23, 1/4/23, and 1/5/23, billed by L. Cooper Harrell at a rate of $460 per hour, after the rate decrease detailed in this Fee Decision. See supra Attorney Fees, Section A. 4 1 at 10-14. My above calculation does not include time spent preparing the initial demand which would have informed this later work, and I am therefore awarding fees associated with that task in full. See, e.g., 55-1 at 5-6 (9.1 hours expended by Ms. Meyers and paralegal identified as JTB). Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., ECF No. 55-1 at 12 (entries dated 10/21/22 and 10/22/21, related to calls with Petitioner). It is unreasonable for counsel to spend so much time briefing the issues of entitlement and damages in this case, once the sum in question is calculated, and where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter),10 in which attorneys have accomplished this task in about half the time.11 See, e.g., McGraw v. Sec’y of Health & Hum. Servs., No. 21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Miller v. Sec’y of Health & Hum. Servs., No. 20-0959V (Feb. 5, 2024) (5.6, 9.6, 6.7, and 6.2 hours billed for drafting an entitlement brief, responsive entitlement brief, a damages brief, and responsive damages brief, respectively); Wilson-Blount v. Sec’y of Health & Hum. Servs., No. 21-1400V (Oct. 25, 2023) (14.2 and 7.4 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Bidlock v. Sec’y of Health & Hum. Servs., No. 20-0093V (Oct. 25, 2023) (9.4 and 6.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Johnson v. Sec’y of Health & Hum. Servs., No. 19-1543V (Aug. 17, 2023) (17.8 and 9.7 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Piccolotti v. Sec’y of Health & Hum. Servs., No. 20-0135V (June 8, 2023) (11.6 and 3.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023) (9.8 hours billed for drafting an entitlement and damages brief – although some time was doubtlessly saved by my March 9, 2020 factual ruling finding an appropriate pain onset); C.H. v. Sec’y of Health & Hum. Servs., No. 20-0249V (May16, 2023) (12.9 and 6.1 hours billed for drafting an entitlement and damages brief and responsive 10 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 11 These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Feb. 7, 2024). 5 entitlement and damages brief, respectively). The circumstances of this case did not warrant devoting so much time to entitlement and damages briefing. Even though the parties disputed whether Petitioner had satisfied both the second and third Qualifications and Aids to Interpretation criteria and differed significantly in their positions regarding the appropriate pain and suffering award and the atypical lost wages Petitioner sought as a partial owner of a business, the case did not warranted expending more than eight full days drafting the two briefs filed in this case. See ECF No. 44 at 10-14 (Ruling on Entitlement). And I ultimately determined that Petitioner had failed to establish that the reduction in sales she experienced in early 2020, was due to her injury, rather than the worldwide COVID Pandemic – further underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality (since I ultimately found that no lost wages award was warranted). ECF No. 49 at 3-4. Of course, having prevailed in this case, a fees award is generally appropriate. See ECF No. 49. But the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for damages briefing (a total of 65.9 hours, or $28,763.00) by thirty percent. Such an across-the-board reduction (which I am empowered to adopt)12 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a further reduction of $8,628.90 from the attorney’s fees.13 ATTORNEY COSTS Petitioner requests $719.28 in overall costs and has provided receipts for all but $5.40 in copying and $1.20 in postage, which I will nevertheless allow. ECF No. 55-1 at 17-40. And Respondent offered no specific objection to the rates or amounts sought. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for 12 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 13 This amount is calculated as follows: (0.5 hrs. x $490 x .30) + (13.2 hrs. x $460 x .30) + (52.2 hrs. x $430 x .30) = $8,628.00. 6 successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $54,359.88 (representing $53,640.60 for fees and $719.28 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel’s current law firm, Turning Point Litigation. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision.14 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 14 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 7