VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01769
Package ID: USCOURTS-cofc-1_20-vv-01769
Petitioner: Theresa Copley-Smith
Filed: 2020-12-04
Decided: 2025-05-22
Vaccine: influenza
Vaccination date: 2019-10-23
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 119594

AI-assisted case summary:
On December 4, 2020, Theresa Copley-Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 23, 2019. Ms. Copley-Smith, who was 62 years old at the time of vaccination, reported experiencing burning pain and decreased range of motion in her left shoulder within days of the injection. Medical records documented tenderness, an abnormal injury involving the infraspinatus with a partial tear, and edema. She underwent a course of treatment that included physical therapy, steroid injections, and eventually arthroscopic surgery and manipulation under anesthesia of her left shoulder. The case proceeded as a Table claim. The Special Master found that Ms. Copley-Smith met all criteria for a SIRVA, including onset within 48 hours of vaccination and no other condition explaining her symptoms, despite a history of diabetes. The Special Master awarded Theresa Copley-Smith $116,000.00 for pain and suffering and $3,594.17 for past unreimbursable medical expenses, totaling $119,594.17. Petitioner was represented by Ronald Craig Homer of Conway, Homer, P.C., and Respondent was represented by Naseem Kourosh of the U.S. Department of Justice. The decision was issued by Chief Special Master Brian H. Corcoran.

Theory of causation field:
Theresa Copley-Smith, age 62, received an influenza vaccine on October 23, 2019, and subsequently developed a shoulder injury related to vaccine administration (SIRVA). The claim proceeded under the Vaccine Injury Table for SIRVA. Petitioner alleged onset of burning pain and decreased range of motion within days of vaccination. Medical records showed tenderness, infraspinatus injury with partial tear, and edema. Treatment included physical therapy, steroid injections, and arthroscopic surgery. The Special Master found that Petitioner met the Table SIRVA criteria: no prior shoulder dysfunction explaining the symptoms, onset within 48 hours of vaccination (despite a 37-day delay in reporting to a medical provider, supported by Petitioner's affidavit and consistent reporting once treatment began), pain and reduced range of motion limited to the left shoulder, and no other condition (specifically, diabetes) sufficiently explaining the symptoms, although diabetes was noted as a risk factor for adhesive capsulitis. The injury required surgical intervention and persisted for approximately ten months. Chief Special Master Brian H. Corcoran issued a decision awarding $116,000.00 for pain and suffering and $3,594.17 for past unreimbursable medical expenses, totaling $119,594.17. Petitioner was represented by Ronald Craig Homer, and Respondent by Naseem Kourosh.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01769-0
Date issued/filed: 2025-05-22
Pages: 17
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/22/2025) regarding 48 Ruling on Entitlement, DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:20-vv-01769-UNJ Document 52 Filed 05/22/25 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1769V
THERESA COPLEY-SMITH, Chief Special Master Corcoran
Petitioner, Filed: April 22, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT
AND DECISION AWARDING DAMAGES1
On December 4, 2020, Theresa Copley-Smith 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 an influenza (“flu”) vaccine that she
received on October 23, 2019. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (“SPU”).
1 Because this Ruling and 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 Ruling will be available to anyone with access to the internet.
In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:20-vv-01769-UNJ Document 52 Filed 05/22/25 Page 2 of 17
Because the parties could not informally resolve the claim, they were ordered to
file briefs setting forth their respective arguments. After a full review of the evidence, I find
it most likely that Petitioner suffered the onset of her shoulder pain within 48 hours of her
October 2019 vaccination, has satisfied all Table requirements for a SIRVA injury, and is
otherwise entitled to compensation for her SIRVA (in the amount specified herein).
I. 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 her claim. Section 13(a)(1)(A).
In making this determination, the special master 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. Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master
must decide what weight to give evidence including oral testimony and contemporaneous
medical records). Contemporaneous medical records are presumed to be accurate.
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To
overcome the presumptive accuracy of medical records testimony, a petitioner may
present testimony which “is consistent, clear, cogent, and compelling.” Sanchez v. Sec’y
of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013) (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808V, 1998
WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and lack of other award or settlement,3 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
3 In summary, a petitioner must establish that she 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 her injury for more than six months, died from her 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 § 11(c)(1)(A)(B)(D)(E).
2

Case 1:20-vv-01769-UNJ Document 52 Filed 05/22/25 Page 3 of 17
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 results 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 (NCV) and/or electromyographic (EMG) studies would
not support SIRVA as a diagnosis (even if the condition causing the
neurological abnormality is not known). A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected
shoulder prior to intramuscular vaccine administration that would
explain the alleged signs, symptoms, examination findings, and/or
diagnostic studies occurring after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g., NCS/EMG or clinical evidence of
radiculopathy, brachial neuritis, mononeuropathies, or any other
neuropath).
42 C.F.R. § 100.3(c)(10).
II. Entitlement
A. Relevant Factual History
On October 23, 2019, Ms. Copley-Smith (then 62-years-old) received a flu vaccine
intramuscularly in her left deltoid at a pharmacy clinic. Ex. 1 at 2–4; Ex. 12 at 1–2. Prior
to the subject vaccination, Ms. Copley-Smith did not have a past medical history for left
shoulder injury. See generally Ex. 2.
3

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A month later, on November 29, 2019,4 Petitioner sent a message to her primary
care physician’s (“PCP”) office, noting that she had received the subject vaccination on
October 23, 2019, and “felt burning pain immediately,” with subsequent pain and
decreased range of motion. Id. at 36. She emphasized that it had been over thirty-five
days “with no relief.” Id.
Several days later, on December 2, 2019, Petitioner saw a treater complaining of
left shoulder pain, weakness, and reduced range of motion (“ROM”). Ex. 32 at 34. Upon
examination, Ms. Copley-Smith exhibited tenderness to palpation of the lateral aspect
and increased discomfort with external rotation. Id. She was prescribed Ultram and a
nine-day taper of Prednisone. Id. at 34.
Petitioner underwent an MRI of her left shoulder on December 6, 2019—the results
of which revealed abnormal injury involving the infraspinatus with partial tear extending
from the insertion and along the bursal aspect, as well as slight edema along the humeral
head. Ex. 2 at 159. Approximately one month later, on January 9, 2020, Petitioner saw
Dr. Daniel Prohaska at Advanced Orthopaedic Associates, and reported persistent pain
following receipt of a flu vaccine on October 23, 2019, with “a constant dull, ache with
intermittent spikes of 8 out of 10 sharp, stabbing, throbbing pain diffusely in the shoulder,
radiating up into her neck and down the arm.” Id. at 132. An exam revealed left shoulder
tenderness and reduced active and passive ROM. Id. at 132–33. Dr. Prohaska diagnosed
Petitioner with left shoulder adhesive capsulitis, administered a steroid and analgesic
injection, and referred Petitioner to physical therapy (“PT”). Id. at 133–34.
On January 29, 2020, Petitioner attended an initial PT evaluation, at which time
she demonstrated “[active] ROM and [passive] ROM deficits in L[eft] shoulder flexion,
abduction, [external rotation], and [internal rotation].” Ex. 7 at 139. Between February 5
to May 19, 2020, Petitioner completed an additional fourteen sessions of PT. Id. at 13–
15, 107–62.
During a visit with Dr. Prohaska on April 9, 2020, Petitioner reported ongoing
stiffness, loss of ROM, and described “an intermittent 3-4 out of 10 aching pain [ ] diffusely
in her shoulder” which “wakes her 4-5 nights weekly.” Ex. 6 at 13–14. On exam, Ms.
Copley-Smith demonstrated decreased ROM and pain in her left shoulder, as well as
4 In the intervening post-vaccination timeframe, the medical records establish that Petitioner messaged her
treater approximately eight times to discuss unrelated issues (i.e., schedule a sonogram for groin pain;
request a prescription for glucometer test strips; diabetes check-up and medication management). See Ex.
2 at 37–50. But as Respondent notes, she did not mention any left shoulder symptoms.
4

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positive Neer5 and Hawkins6 Tests. Id. Following a PT session on May 19, 2020,
Petitioner also saw Dr. Prohaska to discuss surgical options—to which she elected to
proceed with surgery. Id. at 7–9. She reported “intermittent 2 out of 10, aching pain in the
anterior and lateral aspect of [her] shoulder” and continued to complain of reduced range
of motion. Ex. 2 at 127; Ex. 6 at 7–9. Dr. Prohaska gave Petitioner a Quick-Fit shoulder
immobilizer, as well as discussed the association between diabetes and adhesive
capsulitis. Id.
Ms. Copley-Smith underwent arthroscopic surgery and manipulation under
anesthesia of the left shoulder on June 8, 2020. Ex. 6 at 20–22; Ex. 8 at 43. Beginning
June 9 through July 29, 2020, Petitioner completed an additional twenty-two PT sessions.
See Ex. 7 at 57–107, 141–46, 151–55. The note from her last session stated that
Petitioner “demonstrated improvement in [upper extremity passive and active] ROM”;
however, she continued to complain of some tightness and weakness. Ex. 7 at 141–46.
Ms. Copley-Smith was subsequently put on a PT hold for thirty days “to ensure no
increased symptoms.” Id. at 146.
On September 10, 2020, Petitioner suffered a minor stroke affecting her left side.
Ex. 2 at 15–16; Ex. 9 at 7, 13–15, 24–26, 30–32, 44–63, 151, 182, 199–203; Ex. 12 at 4–
5. A month later, she visited her PCP for her annual physical exam. Ex. 2 at 12. At this
time, she reported that “she is recovering well from her left shoulder surgery, continues
to regain mobility,” and that she continues to recover from her stroke. Id.
B. The Parties’ Arguments
1. Petitioner
Petitioner contends that she has fulfilled the criteria for a Table SIRVA. See
Petitioner’s Brief, dated Oct. 6, 2023 (ECF No. 42) (“Br.”).7 First, Petitioner briefly
maintains that she did not have any history of pain, inflammation, or dysfunction in her
left shoulder prior to the subject vaccine administration. Id. at 26. Second, she argues
that the onset of her shoulder symptoms occurred within forty-eight hours of vaccination—
5 A Neer’s test is used to check for the presence of shoulder impingement. The patient is asked to pronate
the forearm fully and then the arm is passively flexed until it is above the patient’s head. By doing so, the
subacromial space is reduced and caused pain if shoulder impingement is present. Stanford Medicine 25,
How to Conduct a Shoulder Exam, https://stanfordmedicine25.stanford.edu/the25/shoulder.html (last
visited Apr. 22, 2025).
6 A Hawkins-Kennedy Test requires the patient’s elbow and shoulder to be flexed at 90 degrees so that the
examiner may internally rotate the shoulder while also performing a cross-body adduction of the arm. If the
patient notes any pain then the test is considered positive. Stanford Medicine 25, How to Conduct a
Shoulder Exam, https://stanfordmedicine25.stanford.edu/the25/shoulder.html (last visited Apr. 22, 2025).
7 Petitioner also argues she can establish a causation-in-fact claim, but because I am finding that the Table
SIRVA elements are met, I do not include discussion of that aspect of the case.
5

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relying on multiple medical record entries which consistently document the onset of her
symptoms with the administration of her October 23, 2019 flu vaccine. Id. at 27–28; see
also Ex. 2 at 36 (discussing 11/29/2019 visit to Dr. Gonzalez and describing immediate
burning sensation post-vaccination); Ex. 6 at 16 (documenting 1/2/2020 visit with Dr.
Prohaska and indicating Petitioner has suffered “persistent” pain since receiving the flu
vaccine).
Believing her pain would heal with time, Petitioner also maintains that she
experienced a symptoms onset within 48 hours, despite only visiting her PCP thirty-
seven-days post-vaccination with specific complaints regarding left shoulder symptoms,
while having eight intervening medical encounters before then. Br. at 34. She similarly
notes the ample record evidence documenting her pain and reduced range of motion as
limited to the left shoulder only. Id. at 35; see also Ex. 2 at 34–35.
Lastly, Petitioner disagrees with Respondent’s assertion that her diabetes
diagnosis—which “pre-disposes [her] to adhesive capsulitis”—prevents her from
demonstrating a Table SIRVA. Br. at 36. In response, she argues that “[p]redisposition or
increased risk may make an individual more susceptible to a develop an injury in the right
circumstances, but [it] do[es] not equate with causation of that injury.” Id. at 37.
2. Respondent
Respondent maintains that the record does not demonstrate that Petitioner’s injury
meets at least two of the criteria set forth by the Table—onset and lack of another
condition or abnormality that would explain her symptoms. See Respondent’s Report,
dated May 25, 2023 (ECF No. 38); Respondent’s Opposition Brief, dated Nov. 16, 2023
(ECF No. 43) (“Opp.”) at 6, 8.
First, Respondent argues that Petitioner has failed to establish that she
experienced onset of shoulder pain within forty-eight hours of the subject vaccination.
Respondent notes that Petitioner did not report shoulder symptoms until thirty-seven days
post-vaccination, and before that she had eight encounters with her PCP to address a
range of issues. Id. The eight intervening medical encounters indicate that Petitioner was
“generally diligent about reporting and seeking treatment for various medical issues,” and
thus could also have addressed her shoulder concerns earlier. Id. at 7.
Second, Respondent contends that Petitioner has failed to establish that no other
condition or abnormality exists that would better explain her symptoms, given her
diabetes diagnosis. Id. Petitioner was initially diagnosed with diabetes “on or around
November 14, 2019, and first reported shoulder pain on November 29, 2019. Opp. at 7–
8; Ex. 2 at 36, 44–50. Respondent also contends that Ms. Copley-Smith’s treating
physicians’ association of her shoulder injury with her receipt of the flu vaccine was
6

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“based entirely on [her] own reporting, [and] not on any reasoned analysis.” Opp. at 8. In
addition, Respondent emphasizes a treater note on May 19, 2020, stating that the
physician “educated [Petitioner] about diabetes and its association with adhesive
capsulitis,” and noting further that “studies suggest that changes in connective tissue due
to uncontrolled blood glucose is a significant risk factor.” Id.; Ex. 2 at 129. Respondent
relies on the American Academy of Orthopaedic Surgeons to bulwark this contention,
emphasizing the greater associated risk for adhesive capsulitis in individuals with
diabetes. Opp. at 8 (citing American Academy of Orthopaedic Surgeons, Frozen
Shoulder, https://orthoinfo.aaos.org/en/diseases--conditions/frozen-shoulder (last visited
Apr. 1, 2025).
C. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that Petitioner has preponderantly satisfied
the Qualifications and Aids Interpretation (“QAI”) requirements for a Table SIRVA.
1. Petitioner has no Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Ms. Copley-Smith’s medical history does not
evidence pre-vaccination explanatory “pain, inflammation, or dysfunction,” and
Respondent does not contend that it does. Therefore, the first SIRVA criterion is met.
2. Pain Occurs with the Specified Timeframe (Onset)
In order to meet the definition of a Table SIRVA, a petitioner must show that she
experienced pain within 48 hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B) and §
100.3(c)(10)(ii) (QAI criteria)).
Respondent’s objection rests on the fact that Ms. Copley-Smith did not report her
shoulder injury to a medical provider until thirty-seven days after vaccination, despite
having eight intervening medical encounters—all addressing other kinds of ailments, but
which suggest Petitioner could have also raised shoulder concerns as well had they
existed. Opp. at 7.
There is no dispute that Petitioner waited a little over a month before being seen
for her left shoulder symptoms. But this is not an inordinately long delay. See, e.g., Larish
v. Sec’y of Health & Hum. Servs., No. 18-20V, 2019 WL 5266886, at *6–10 (Fed. Cl.
Spec. Mstr. July 2, 2019) (finding onset of shoulder pain within 48 hours of vaccination
despite a nine-week delay in treatment because petitioner’s medical records recorded
immediate post-vaccination pain). Moreover, there are a variety of reasons that an
individual may put off complaining of SIRVA-like, post-vaccination symptoms. Many
individuals expect, and are often advised, that there will be pain at the injection site after
7

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vaccination. This can lead to them putting off treatment. An individual’s particular
threshold for pain, or desire to avoid costly or unnecessary medical treatment, are other
reasons.
In addition, it is not always reasonable to expect claimants to complain of shoulder
issues during visits with medical professionals for unrelated matters. Thus, although this
record does suggest Petitioner had the ability and opportunity to seek help with her
shoulder issues sooner than she did, the intervening treatment events do not prevent a
finding that her onset began close-in-time to vaccination.
Petitioner has also supplemented the record with statements supporting her
alleged onset. Thus, she states in her affidavit that “shortly after the vaccination was
injected, [she] began to experience a burning sensation in [her] left arm.” See Petitioner’s
Affidavit, filed as Ex. 12 (ECF No. 32) (“Petitioner’s Aff.”) at 1–2. She also maintains that
“[she] had been in pain since [she] received [her] flu shot [on October 23, 2019] and while
[she] had hoped the pain would improve with time, it was actually worse, so [she] planned
to see [her] physician.” Id. And the record establishes that once she sought treatment,
she consistently reported vaccination-related onset. See Ex. 2 at 36; Ex. 6 at 16); Ex. 7
at 136–37.
Accordingly, the totality of the evidence preponderantly supports the conclusion
that Ms. Copley-Smith’s shoulder pain likely began within 48 hours of her vaccination.
3. Petitioner Experienced Pain and Loss of Range of Motion in her
Left Shoulder
In alleging a SIRVA, it must also be shown that “pain and reduced range of motion
are limited to the shoulder in which the intramuscular vaccine was administered.” 42
C.F.R. § 100.3(c)(10)(iii) (QAI criteria). Not only do the medical records consistently
describe reports from Petitioner regarding pain and reduced range of motion affecting
only her left shoulder, but Respondent has not put forth an argument to suggest
Petitioner’s symptoms extended beyond that of her left shoulder. Therefore, the third
SIRVA criterion is met.
4. Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain Petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent argues that Ms. Copley-Smith’s diabetes diagnosis is a
more likely cause of her adhesive capsulitis, noting that Ms. Copley-Smith “was initially
diagnosed with diabetes on or around November 14, 2019, and first reported shoulder
pain on November 29, 2019”. Opp. at 7. In addition, at Petitioner’s first orthopedist
appointment on January 9, 2020 (when she was diagnosed with adhesive capsulitis), the
8

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relevant record provides “no indication that [Ms. Copley-Smith] discussed her diabetes
with [the orthopedist] at the time.” Id. at 8. And during a visit with Dr. Prohaska on May
19, 2020, she was informed of “diabetes and its association with adhesive capsulitis,”
along with the fact that “studies suggest that changes in connective tissue due to
uncontrolled blood glucose is a significant risk factor.” Id.; see also Ex. 2 at 129.8
In response, Petitioner maintains that Dr. Prohaska and her PCP “were aware that
[Ms. Copley-Smith] was treated for diabetes, and yet associated her left shoulder injury
with her October 23, 2019 flu vaccine.” Br. at 37; Reply at 7. In fact, the record of her
January 9, 2020, visit with Dr. Prohaska notes her history of current “prescription
medications, including Metformin, which is primarily prescribed to treat type 2 diabetes.”
Reply at 7; see also Ex. 6 at 26. Petitioner also notes that Respondent has not “alleg[ed]
[P]etitioner’s diabetes as an overt alternative cause in her analysis of an off-Table SIRVA
claim,” and thus contends that she has sufficiently demonstrated that no other condition
or abnormality is present that would explain her symptoms. Reply at 9.
The issue of Petitioner’s diabetes as explaining her shoulder issues does present
a closer call. Respondent has demonstrated it could be causal of the kinds of symptoms
Petitioner experienced. However, I am able to find on this record that the totality of the
evidence supports Petitioner. First, I have found that onset likely did occur close-in-time
to vaccination, making it more likely the vaccination was associated with her shoulder
pain. Second, Petitioner’s diabetes has not on this record been shown to have manifested
long before vaccination (evidence which would better support it as a causal factor), even
if it was diagnosed close to when she complained (in a record document, notably) of
shoulder pain. In addition, Petitioner has demonstrated that her treaters seemed to favor
the vaccine as causal. And there is no record evidence from later in 2020 that subsequent
medical visits reviewed again the possibility of a diabetic cause for her shoulder issues.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provided
preponderant evidence of the additional requirements of Section 11(c). The overall record
contains preponderant evidence to fulfill these additional requirements.
8 In his Opposition, Respondent includes an excerpt from the American Academy of Orthopaedic Surgeons
which discusses several factors that may increase an individual’s risk for developing frozen shoulder,
including diabetes. Opp. at 8; see also American Academy of Orthopaedic Surgeons, Frozen Shoulder,
https://orthoinfo.aaos.org/en/diseases--conditions/frozen-shoulder (last visited Apr. 22, 2025) (stating that
“[f]rozen shoulder occurs much more often in people with diabetes. The reason for this is not known. In
addition, diabetic patients with frozen shoulder tend to have a greater degree of stiffness that continues for
a longer time before “thawing.”).
9

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The record shows that Ms. Copley-Smith received a flu vaccine intramuscularly in
her left shoulder on October 23, 2019. Ex. 1 at 3, 4; see Section 11(c)(1)(A) (requiring
receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the
United States or its territories). There is no evidence that Petitioner has collected a civil
award for her injury. Petition at ¶ 6; Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). I have also found that Petitioner’s pain and reduced
range of motion was limited to her left shoulder. 42 C.F.R. § 100.3(c)(10). Finally, I find
that there was no condition or abnormality that would explain Petitioner’s symptoms after
vaccination. Id. Therefore, Petitioner has satisfied all requirements for a Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the duration of her
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his or her left shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
Starting from October 23, 2019 (48 hours after vaccination), the records undoubtedly
demonstrate that Ms. Copley-Smith suffered the residual effects of her shoulder injury for
more than six months. See, e.g., Ex. 8 at 43 (documenting Petitioner’s arthroscopic
surgery and manipulation under anesthesia of the left shoulder). Thus, this requirement
is also met.
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
III. Damages
The parties have also briefed damages in this case, which is limited to requests
for an award of actual pain and suffering, plus past unreimbursable treatment expenses.
A. Legal Standards for Damages Awards
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, and
award not to exceed $250,000.00.” Section 15(a)(4). Additionally, a petitioner may
recover “actual unreimbursable expenses incurred before the date of judgement award
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such expenses which (i) resulted from the vaccine-realted 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). The petitioner bears the burden of proof
with respect to each element of compensation requestion. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mste. 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 & Hum. Servs., No. 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.9 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt several years ago
by a particular decision from the Court. Graves v. Sec’y of Health & Hum. Servs., 109
Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of
all suffering awards into a global comparative scale in which the individual petitioner’s
suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590.
9 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
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Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain
and suffering awards within the Vaccine Program, and a survey of similar injury claims
outside of the Vaccine Program. Id. at 595. Under this alternative approach, the statutory
cap merely cuts off higher pain and suffering awards—it does not shrink the magnitude
of all possible awards as falling within a spectrum that ends at the cap. Although Graves
is not controlling of the outcome in this case, it provides reasoned guidance in calculating
pain and suffering awards.
B. Prior SIRVA Compensation within SPU10
1. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2024, 3,696 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 3,588 of these cases, with the remaining
108 cases dismissed.
2,075 of compensated SPU SIRVA cases were the result of a reasoned ruling that
petitioner was entitled to compensation (as opposed to an informal settlement or
concession).11 In only 200 of these cases, however, was the amount of damages also
determined by a special master in a reasoned decision.12 As I have previously stated, the
written decisions setting forth such determinations, prepared by neutral judicial officers
(the special masters themselves), provide the most reliable precedent setting forth what
similarly-situated claimants should also receive.13
10 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
11 The remaining 1,513 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
12 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (1,846 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
13 Of course, even though any such informally resolved case must still be approved by a special master,
these determinations do not provide the same judicial guidance or insight obtained from a reasoned
decision. But given the aggregate number of such cases, these determinations nevertheless “provide some
evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Hum.
Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the
difference between cases in which damages are agreed upon by the parties and cases in which damages
are determined by a special master).
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The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated14
Decisions by Damages Damages Agreement
Special Master
Total Cases 270 2,206 30 1,891
Lowest $30,000.00 $5,000.00 $45,000.00 $1,500.00
1st Quartile $67,305.16 $60,000.00 $90,000.00 $32,500.00
Median $89,500.00 $80,000.00 $122,866.42 $50,000.00
3rd Quartile $125,000.00 $107,987.07 $162,000.60 $75,000.00
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00
2. Pain and Suffering Awards in Reasoned Decisions
In the 200 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$40,000.00 to $210,000.00, with $85,000.00 as the median amount. Only nine of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.15
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment—over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence or mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases were positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point scale and
14 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
15 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
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sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions—occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In eight cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
C. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. In determining appropriate compensation for pain
and suffering, I have carefully reviewed and considered the complete record in this case,
including all medical records, declarations, plus all filings submitted by both Petitioner and
Respondent. I have also considered prior awards for pain and suffering in both SPU and
non-SPU SIRVA cases and relied upon my experience adjudicating these cases.
However, my determination is ultimately based upon the specific circumstances of this
case.
Ms. Copley-Smith requests $120,000.00 for her pain and suffering. She explains
that she was physically strong and active prior to her vaccination. Br. at 45. She states
that “she experienced burning pain with administration of the flu vaccine on October 23,
2019,” and that “[h]er left shoulder pain persisted and within days, her left shoulder
became stiff.” Id. (citing Petitioner’s Aff. at 1–2.). Ms. Copley-Smith underwent treatment
for approximately ten months and maintains that she continues to experience “aching at
night, stiffness and some increased pain with movement” and that “[t]he discomfort still
wakes [her] some nights.” Petitioner’s Aff. at 7.
To support her requested award, Petitioner cites six cases: Jackson v. Sec’y of
Health & Hum. Servs., No. 20-0051V, 2023 WL 4401125 (Fed. Cl. Spec. Mstr. June 2,
2021) (awarding $125,000.00 for pain and suffering); Barry v. Sec’y of Health & Hum.
Servs., No. 20-1874V, 2023 WL 4742421 (Fed. Cl. Spec. Mstr. June 23, 2023) (awarding
$113,000.00 for pain and suffering); Kestner v. Sec’y of Health & Hum. Servs., No. 20-
0025V, 2022 WL 2447499 (Fed. Cl. Spec. Mstr. Mar. 10, 2023) (awarding $115,000.00
for pain and suffering); Stokes v. Sec’y of Health & Hum. Servs., No. 19-752V, 2021 WL
6550888 (Fed. Cl. Spec. Mstr. Dec. 17, 2021) (awarding $125,000.00 for pain and
suffering); Wilson v. Sec’y of Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731
(Fed. Cl. Spec. Mstr. Mar. 18, 2021) (awarding $130,000.00 for pain and suffering); and
Smith v. Sec’y of Health & Hum. Servs., No. 19-0745V, 2021 WL 2652688 (Fed. Cl. Spec.
Mstr. May 28, 2021) (awarding $125,000.00 for pain and suffering).
Respondent, by contrast, submits that the lesser sum of $100,000.00 is
appropriate for pain and suffering. Opp. at 12. In his view, the petitioners from Ms. Copley-
14

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Smith’s comparable cases either suffered more severe injuries, involved non-vaccine
related medical issues in conjunction with their SIRVA injury, suffered complications from
surgery, or documented impacts on family and work obligations that justified the pain and
suffering awards therein. Opp. at 13–15. Respondent also offers comparable cases of his
own. See Felland v. Sec’y of Health & Hum. Servs., No. 20-0406V, 2022 WL 10724100
(Fed. Cl. Spec. Mstr. Sept. 6, 2022) (awarding $100,000.00 for pain and suffering); Juno
v. Sec’y of Health & Hum. Servs., No. 18-643V, 2022 WL 17850717 (Fed. Cl. Spec. Mstr.
Dec. 2, 2022) (awarding $100,000.00 for pain and suffering); Clendaniel v. Sec’y of Health
& Hum. Servs., No. 20-213V, 2021 WL 4258775 (Fed. Cl. Spec. Mstr. Aug. 18, 2021)
(awarding $60,000.00 for pain and suffering).
A thorough review of the medical records reveals that Ms. Copley-Smith suffered
a moderate shoulder injury that was serious enough for arthroscopic surgery to be
performed, and for an extensive course of treatment to be pursued. Petitioner participated
in 37 PT visits (15 pre-surgery and 22 post-surgery), underwent one steroid injection and
one MRI of her left shoulder, and took five oral prescription medications over the course
of her treatment. At her final PT session, approximately ten months post-vaccination,
records document demonstrated improvement in Petitioner’s active and passive ROM,
but with some continued tightness and weakness. Ex. 7 at 145. By October 2020, Ms.
Copley-Smith reported continued recovery from her left shoulder surgery, as well as
gradual improvement in regaining her mobility. Ex. 2 at 12.
Although the record establishes that Ms. Copley-Smith experienced the onset of
shoulder pain almost immediately after vaccination, her slight delay in treatment has
some bearing on the award to be issued—but I do not deem it so dilatory that it requires
a large adjustment downward. What is left is a “surgery SIRVA” case of moderate
course—meaning a six-figure pain and suffering award is appropriate, although not a high
one.
I find that the cases of Kestner (cited by Petitioner) and Issertell (cited by neither
party) which resulted in actual pain and suffering awards of $115,000.00 and
$112,500.00, to be most helpful in determining the appropriate award for pain and
suffering herein.16 The Kestner petitioner consistently reported pain levels of 2/10 and
6/10 prior to surgery, received one cortisone injection, was prescribed medication,
attended 35 PT sessions, and underwent surgical intervention. 2023 WL 2447499, at *5–
6. There, petitioner reported a 95% improvement in her symptoms following her surgery
and after being discharged from PT. Id. In Issertell, the petitioner underwent arthroscopic
shoulder surgery and her treatment course consisted of one cortisone injection, 32
therapeutic visits (14 PT sessions, 12 chiropractic visits, and 6 acupuncture visits), and
16 Issertell v. Sec’y of Health & Hum. Servs., No. 20-0099V, 2022 WL 2288247 (Fed. Cl. Spec. Mstr. May
17, 2022).
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an MRI. 2022 WL 2288247, at *7. The duration of Ms. Issertell’s injury was approximately
ten months. Id.
Of the two, Kestner is particularly useful—although I find that some personal
circumstances in this matter (delay in scheduling her surgery due to the Covid Pandemic,
Petitioner’s inability to attend additional PT sessions following her stroke due to her
insurance benefits) all counsel in favor of a higher award. Accordingly, I deem
$116,000.00 a reasonable sum for actual pain and suffering.
D. Unreimbursed Medical 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).
Petitioners bear the burden of proof with respect to such items, as with each element of
compensation they request. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V,
1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
Petitioner initially sought $4,606.5017 for expenses related to her injury. Br. at 44.
However, in response to Respondent’s opposition (in which he argues only $3,582.12 in
expenses have been substantiated), Petitioner has since made several deductions, and
is now requesting an award for past unreimbursed expenses totaling $4,085.86. Opp. at
18; Reply at 15–18.
Respondent does, however, contest Petitioner’s entitlement to some of the
expenses she includes in the total sum. Opp. at 17. For example, Respondent notes a
request for $0.95 in mileage costs for a visit to West Wichita Family Physicians regarding
dyshidrosis on May 5, 2020. Petitioner, in response, maintains that the notes from Dr.
Gonzalez’s during this visit indicate a discussion of her ongoing left shoulder injury. Reply
at 16; Ex. 2 at 23. Similarly, at another visit to West Wichita Family Physicians on October
8, 2020—for which Petitioner requests $0.95 in mileage costs—Petitioner presented for
her annual physical exam, at which time she reported that her recovery was going well,
and she continued to regain mobility. Ex. 2 at 12. Respondent, however, argues that
Petitioner did not report or seek treatment for new or ongoing shoulder symptoms. Opp.
at 18.
I agree with Respondent that the expenses and mileage costs related to these two
instances are not sufficiently supported by the record, and are otherwise unrelated to her
17 I note, and as Respondent pointed out in his opposition, Petitioner’s lists supporting her incurred mileage
costs presents a total of $205.93, and not $695.72. Accordingly, her initial overall total should be $4,116.71.
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shoulder injury. Therefore, based on the above, I award only $3,594.17 for past
unreimbursed expenses.
Conclusion
For all the reasons discussed above and based on consideration of the record as
a whole, I find that $116,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.
I therefore award Petitioner a lump sum payment of $119,594.17 representing
compensation in the amount of $116,000.00 for pain and suffering and $3,594.17
for past unreimbursable expenses, to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. The
amount represents compensation for all damages that would be available under Section
15(a).
I approve a Vaccine Program award in the requested amount set forth above to be
made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix
B, the Clerk of the Court is directed to enter judgment herewith.18
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.
17