VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01844 Package ID: USCOURTS-cofc-1_20-vv-01844 Petitioner: Fayth Brennan Filed: 2020-12-14 Decided: 2024-12-04 Vaccine: Td Vaccination date: 2019-11-07 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 42364 AI-assisted case summary: Fayth Brennan filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from a tetanus diphtheria (Td) vaccine received on November 7, 2019. The Chief Special Master ruled that Fayth Brennan was entitled to compensation, finding that the onset of her shoulder pain occurred within 48 hours of vaccination and that she met the criteria for SIRVA. The case then proceeded to determine damages. Fayth Brennan, an adult, received a Td vaccine in her right deltoid. She reported pain at the injection site and limited range of motion shortly after vaccination, which she self-treated for several months due to her background as a physical therapy assistant and her husband's profession as a chiropractor. She eventually sought treatment from her husband, Dr. John Brennan, who is also her primary care physician, and later from an orthopedist and physical therapist. Medical records indicated a small tear in her supraspinatus tendon and adhesive capsulitis. The respondent argued that the injury was mild and that the chiropractic treatment provided by her husband was not entirely related to the SIRVA. After considering the evidence, the court awarded Fayth Brennan $40,000.00 for pain and suffering and $2,364.49 for out-of-pocket expenses, totaling $42,364.49. The court noted that while Dr. Brennan's records were used to establish entitlement, his close relationship with the petitioner raised concerns about objectivity in the damages assessment, leading to an award considered appropriate for a milder SIRVA case. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01844-0 Date issued/filed: 2023-10-31 Pages: 12 Docket text: e.PUBLIC ORDER/RULING (Originally filed: 09/13/2023) regarding 36 Ruling on Entitlement,, Order on Motion for Ruling on the Record, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties mad -------------------------------------------------------------------------------- Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 1 of 12 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1844V FAYTH BRENNAN, Chief Special Master Corcoran Petitioner, Filed: September 13, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Rhonda Lorenz-Pignato, Shannon Law Group, PC, Woodridge, IL, for Petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 14, 2020, Fayth Brennan 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”) resulting from a tetanus diphtheria (“Td”) vaccine received on November 7, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. For the reasons discussed below, I find that record evidence preponderantly establishes that onset of Petitioner’s shoulder pain began within 48 hours of vaccine 1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 2 of 12 administration, and that Petitioner has satisfied the remaining requirements for entitlement. I. Relevant Procedural History The case was activated on February 24, 2021 (ECF No. 8). Following an initial status conference, Petitioner filed additional evidence and a statement of completion (ECF Nos. 12-15). The parties entered into settlement discussions a year later, but they were not fruitful. Accordingly, on August 1, 2022, Petitioner moved for a ruling on the record in favor of entitlement (ECF No. 33). Respondent opposed the motion on August 31st (ECF No. 34), and Petitioner replied on September 14, 2022 (ECF No. 35). The issues of the onset of Petitioner’s shoulder pain and entitlement to compensation are ripe for a ruling. II. Factual Findings and Ruling on Entitlement A. Legal Standards Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has “reject[ed] as incorrect the presumption that medical records are accurate and complete 2 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 3 of 12 as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment, or a physician may enter information incorrectly or not record everything he or she observes). In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must establish that 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 Qualifications and Aids to Interpretation (“QAI”) are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the 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; 3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. Section 11(c)(1)(A)(B)(D)(E). 3 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 4 of 12 (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. B. Relevant Factual History This ruling contains only a brief overview of facts relating to the onset of Petitioner’s symptoms and entitlement to compensation. 1. Medical Records a. Pre-vaccination On December 11, 2018, Petitioner presented to John Brennan, doctor of chiropractic medicine, at the Brennan Chiropractic Clinic, reporting right shoulder soreness. Ex. 3 at 2. Dr. Brennan is Petitioner’s husband and primary care physician, and Petitioner also works part time at his office, serving as the office manager and performing physical therapy. Ex. 1 at ¶¶ 2, 3, 5. Dr. Brennan advised her to stretch. Ex. 3 at 2. Petitioner returned to Dr. Brennan on December 18, 2018 for continued right shoulder pain. Ex. 3 at 2. Petitioner was seen again on January 22, 2019, reporting right shoulder pain from playing pickleball. Id. at 1. On March 12, 2019, she complained to Dr. Brennan of right shoulder pain with abduction and rotation, as well as difficulty lifting overhead. Id. She also reported that her mid-back was sore from playing pickleball. Id. Petitioner did not return to Dr. Brennan for treatment again until after vaccination. See generally Ex. 3. b. Vaccination and Post-vaccination On November 7, 2019, a Td vaccine was administered in Petitioner’s right deltoid by Wright County Public Health. Ex. 2 at 1. Three months later, on February 11, 2020, Petitioner presented to Dr. Brennan. Ex. 3 at 9, 12-13. Petitioner reported right arm pain from a vaccine on November 7, 2019. Ex. 3 at 9. The pain was located at the vaccination site, her right deltoid area. Id. She reported pain immediately during the shot, and had 4 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 5 of 12 been sore since that time. Id. at 13. A day or two later, she maintained, she had experienced pain when moving her arm. Id. She reported a pain level of zero to one at rest, and ten out of ten when she moved her arm “wrong.” Id. She had self-treated until this time, thinking it would go away. Id. On examination, she had decreased and painful range of motion (“ROM”) in all directions, depending on her hand and thumb position. Id. at 9, 12. She also reported left knee pain, which was not related to the shot. Id. at 9. Dr. Brennan recommended hot packs and trigger point therapy. Id. Petitioner returned to Dr. Brennan nearly two months later, on April 30, 2020, reporting that her right arm pain was the same. Ex. 3 at 9. She continued to have decreased ROM. Id. Dr. Brennan recommended stretches and trigger point therapy. Id. She sought care again for the same kind of pain on May 5, 2020. Ex. 3 at 9. She reported very mild improvement to no change, and she still had decreased ROM. Id. Dr. Brennan again recommended stretches and trigger point therapy. Id. Petitioner saw Dr. Brennan for the same issues on May 12, May 19, and May 26, 2020. Id. at 10. On June 16, 2020, Petitioner underwent a right shoulder MRI. Ex. 4 at 1-2. The clinical history indicated that the MRI was done due to right shoulder pain and decreased ROM. Id. at 1. The injury was from a Td vaccine, and her pain had started one or two days after the shot. Id. The MRI showed a small articular sided tear of the supraspinatus and no evidence of soft tissue abnormality adjacent to the pain marker along the lateral deltoid. Id. at 2. There was a small area of fluid collection within the articular side of the anterior supraspinatus tendon. Id. at 1. There was no evidence of subacromial-subdeltoid bursal effusion. Id. On July 20, 2020, Petitioner was seen by orthopedist Dr. Daniel Buss of Sports & Orthopaedic Specialists. Ex. 5 at 17. She reported right shoulder pain that began after a tetanus vaccination on November 7, 2019. Id. at 18. Her symptoms had continued despite self-treatment, including band exercises, and chiropractic visits with her husband since February, which included manipulation and soft tissue mobilization. Id. The pain was emanating from the anterior and lateral aspect of the shoulder, and was worse with reaching back, reaching across her body, and various rotational movements. Id. She had occasional nighttime pain. Id. She rated her pain as zero out of ten. Id. On examination, her right shoulder active ROM was slightly worse than her left shoulder. Id. at 19. Dr. Buss reviewed the MRI and noted a thickened inferior capsule, degenerative rotator cuff findings, a partial supraspinatus defect, atrophy of the supraspinatus, moderate acromioclavicular hypertrophy, and congenital type 3 acromion. Id. He advised that “her diagnosis of adhesive capsulitis can take up to 18 months to resolve.” Id. at 19. He recommended conservative treatment including physical therapy and a possible glenohumeral joint injection, which Petitioner declined. Id. Petitioner was seen by Courage Kenny Sports & Physical Therapy for a physical therapy evaluation on July 28, 2020. Ex. 5 at 2. Petitioner presented with decreased ROM, 5 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 6 of 12 which started after a painful vaccination to the right lateral shoulder. Id. at 3.4 On examination, her right shoulder ROM was reduced and painful. Id. at 4. She had positive right shoulder impingement results on the Neer and Hawkins Kennedy tests. Id. at 5. While additional sessions were recommended, Petitioner explained that she is a physical therapy assistant and her husband is a chiropractor and she planned to do exercises on her own with her husband’s help, with no further formal physical therapy planned. Id. at 6. Petitioner was given a home exercise program. Id. Petitioner filed documents from Courage Kenny Sports & Physical Therapy Center (where she received physical therapy) and Sports & Orthopaedic Specialists (her orthopedist’s practice), containing twelve pages of shoulder exercises. Ex. 12. Petitioner has continued to treat with Dr. Brennan, with additional records from 2020 through 2022.5 Ex. 3 at 11, 14-16; Ex. 3, Vol. II at 1-4; Ex. 14 at 1-6. 2. Affidavits Petitioner filed four affidavits in support of her claim. Exs. 1, 11, 12, 13. Petitioner avers that she has a degree as a physical therapy assistant. Ex. 1 at ¶ 3. She is generally in good health and tries to manage her health on her own, having only seen a medical doctor approximately three times in the 19 years prior to her vaccination. Id. at ¶ 4. She grew up on a farm and learned to allow injuries to heal at home rather than going to a doctor. Ex. 11 at ¶¶ 2-3. She continued these natural practices as an adult, and has minimal health insurance coverage and has had “very little medical treatment as an adult.” Id. at ¶ 3. She tries to manage her health using her knowledge and training from working as a physical therapy assistant and 28 years working in a chiropractic office. Ex. 1 at ¶ 4. When she received the November 7, 2019 Td vaccine, Petitioner reports, it was “more painful than any shot I had ever received before,” and she recalled yelling “[ow] that hurt!” when it was administered. Ex. 1 at ¶ 7. Afterward, she experienced additional pain within 48 hours at or around the injection site in her right deltoid, as well as limited ROM. Id. at ¶ 10. She attempted to manage the pain on her own using hot packs, trigger point therapy, stretches, trans friction massages, and homeopathic remedies. Id. at ¶ 11. Approximately a month after vaccination, she contacted the Wright County Public Health Department about her shoulder pain, and was informed that the Td shot was one of the more painful shots. Id. at ¶ 12. Thus, she decided to continue self-treating. Id. Petitioner did research online and found that beyond physical therapy, the only treatment options were medication and surgery, which she did not want to pursue. Ex. 1 4 The record states that Petitioner presented with decreased ROM of her left shoulder (Ex. 5 at 3), but the examination section records reduced and painful ROM of her right shoulder (Ex. 5 at 4). Thus, the reference to Petitioner’s left shoulder appears to be a typo. 5 Many of these records are difficult to read. I make no finding as to whether all of these records are for treatment of Petitioner’s right shoulder condition. 6 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 7 of 12 at ¶ 13. During this time, she got sick, her mother got sick, and her children came home for the holidays. Id. at ¶¶ 14-16. Dr. Brennan submitted an affidavit on Petitioner’s behalf. Ex. 12. He averred that as Petitioner’s primary treating doctor and husband, he has seen Petitioner try to manage her health using natural methods and that except for a few rare occasions, she generally does not seek treatment from medical doctors. Id. at ¶¶ 4, 6-7. He saw Petitioner on a daily basis since her vaccination with the exception of short trips or visits to their children. Id. at ¶ 8. On November 7, 2019, Petitioner told Dr. Brennan that she received a Td vaccine and that her right shoulder and arm were in pain thereafter. Ex. 12 at ¶ 11. Over the following month, she continued to complain that her right arm was still hurting a lot from the vaccination. Id. at ¶ 12. She performed stretches, but continued to have sharp pain in her right shoulder with various motions, along with pain and tenderness at the injection site. Id. at ¶¶ 12-13. Petitioner was busy during the months following vaccination due to the holidays, their children coming home on break, and caring for her mother and herself when they became ill. Id. at ¶ 14. Levi Brennan submitted an affidavit in support of Petitioner, his mother. Ex. 13. He explained that he was away at school when she received the vaccine, but returned home for breaks around November 23-26, 2019 and December 20, 2019 to January 12, 2020. Id. at ¶¶ 5-6. During those breaks, he saw his mother struggle to reach at or above her head due to pain and resistance from her right arm. Id. at ¶ 6. When he was in the kitchen, he helped by getting items off of shelves for her. Id. She struggled to put on her coat or give him a hug due to her limited ROM. Id. C. The Parties’ Arguments Petitioner argues that the evidence establishes that the SIRVA Table and QAI criteria are met. Petitioner’s Motion for a Ruling on the Record, filed Aug. 1, 2022 (ECF No.33) (“Mot.”). 6 The first symptom of pain in her right shoulder occurred while the vaccine was being administered, and she felt pain immediately afterward, and thus the onset of her pain occurred within 48 hours of vaccination. Mot. at *14. While she did not seek formal medical attention for her injury for three months, she explains that she grew up on a farm and is trained as a physical therapy assistant, and thus used natural remedies and self-treated. Mot. at *4. She generally does not immediately go to medical doctors for health problems. Id. 6 In the alternative, Petitioner argues that she is entitled to compensation for an injury caused in fact by the Td vaccine. Mot. at *20-26.The petition asserts only a Table SIRVA claim. In light of my ruling herein that petitioner is entitled to compensation, it is not necessary to address whether Petitioner could amend her petition to add a causation in fact claim. 7 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 8 of 12 As to the first QAI requirement, Petitioner acknowledges that she experienced some right-side minor muscle aches from playing pickleball in early 2019. Mot. at *15. However, these issues were resolved by mid-March 2019, nearly eight months prior to vaccination. Id. Respondent argues that Petitioner has not provided preponderant evidence that the onset of her symptoms occurred within 48 hours of vaccination, and thus she is not entitled to compensation. Respondent’s Rule 4(c) Report and Response to Petitioner’s Motion, filed Aug. 31, 2022, at *6-7 (ECF No. 34) (“Resp.”). Respondent asserts that Petitioner did not report her alleged shoulder injury to a medical professional until more than three months after vaccination, at which point she was seen by her husband only. Resp. at *6. She did not seek medical attention from a non-relative until more than seven months after vaccination.7 Id. at *6. Respondent argues that I cannot find a vaccine-related injury occurred based solely on the claims of Petitioner. Id. at *7. Respondent asserts that Petitioner’s claims must be substantiated by medical records or credible expert medical opinion, citing Lett v. Sec’y of Health & Human Servs., 39 Fed. Cl. 259, 260 (1997). Id. Respondent acknowledges that Petitioner’s medical records reference onset shortly after vaccination, but asserts that these records “merely reflect petitioner’s reported history.” Id. Respondent adds that when Petitioner hurt her shoulder playing pickleball, “she appears to have sought treatment from her husband relatively shortly after developing pain in her right shoulder.”8 Id. Respondent does not argue that any other SIRVA QAI criteria or statutory requirements are not satisfied. Petitioner replies that the evidence shows that Petitioner did report her shoulder injury to Dr. Brennan, her husband and primary care provider, sooner than Respondent asserts. Petitioner’s Reply, filed Sept. 14, 2022, at *3 (ECF No. 35) (“Reply”). Petitioner cites Dr. Brennan’s affidavit averring that Petitioner told him on November 7, 2019 that her right shoulder and arm were in pain following the vaccination. Id. (citing Ex. 12 at ¶ 11). While this report was not in a clinical setting, and thus not recorded in medical records, it was made contemporaneously. Id. 7 Respondent’s argument implies that I should give less weight to treatment records generated by Petitioner’s husband. However, Respondent does not expressly argue that these records are not reliable or credible, and objects to them only insofar as they bear on the timing of the onset of Petitioner’s symptoms, and not to the remaining information contained therein. It also has not been demonstrated that these records are not contemporaneous with the time of treatment. Thus, Respondent has not established any basis for treating these records differently than any other medical records. 8 Respondent cites Dr. Brennan’s affidavit indicating that Petitioner’s pre-vaccination right shoulder pain from pickleball was “minor, temporary muscle soreness” (Ex. 12 at ¶ 10) in support of his implication that Petitioner sought care for the pickleball injury more quickly than she did for the vaccine injury. Resp. at *7. I do not read Dr. Brennan’s affidavit to indicate that Petitioner sought care quickly for the pickleball injury. 8 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 9 of 12 Petitioner further asserts that Respondent’s position appears to be that medical records are not credible evidence when a medical provider gets information about the history of the injury from the patient, even though “virtually all medical records get the history of the injury from the patient, and the provider relies on that history in treating the patient.” Reply at *3-4. Petitioner concludes that Respondent’s position seems to be that a Petitioner cannot prove onset of symptoms within 48 hours “unless she gets treatment within those 48 hours, because any medical record created after that 48-hour window is not ‘contemporaneous’ but would just be a recorded account of symptoms from a patient after the fact.” Id. at *4. In support, Petitioner cites Wilkinson, in which I noted that Respondent’s reasoning appeared to suggest that to establish a Table injury a petitioner must seek care within 48 hours after vaccination, and determined that “the Vaccine Act does not impose such a requirement,” citing Section 13(b)(2). Wilkinson v. Sec’y of Health & Human Servs., No. 19-0733V, 2022 WL 444451, at *4 (Fed. Cl. Spec. Mstr. Jan. 14, 2022). Petitioner adds that Respondent made a similar argument in Ray v. Sec’y of Health & Human Servs., No. 16-1388V, 2018 WL 7051571 (Fed. Cl. Spec. Mstr. Dec. 17, 2018), and that it was also rejected. Reply at *6-7. Petitioner argues that she stated in her affidavit that she had immediate pain during and after vaccination, and had other symptoms that began within 48 hours. Id. at *7. Petitioner asserts that the onset of her symptoms within 48 hours is corroborated by Dr. Brennan’s affidavit, a VAERS report made on May 4, 2020, and Petitioner’s medical records. Id. Petitioner emphasizes that Respondent has not provided any evidence contradicting a finding that the onset of her symptoms was within 48 hours. Id. at *8. Petitioner adds that a delay in seeking care for a few months “does not per se negate entitlement or the value of treatment records, nor does [it] render that evidence not credible.” Id. (citing Hutchens v. Sec’y of Health & Human Servs., No. 17-797V, 2021 WL 4267579 (Fed. Cl. Spec. Mstr. Aug. 31, 2021). Finally, Petitioner asserts that she had many credible reasons for the short delay in seeking treatment. Reply at *9. These include her training as a physical therapy assistant that allowed her to self-treat; that she contacted the vaccine provider and was told that Td was a more painful vaccination, leading her to believe that the pain was normal and would go away on its own; the holidays and family activities; illnesses of Petitioner and her mother; and her longstanding custom to manage her illnesses and medical issues on her own first before seeking help. Id. 9 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 10 of 12 D. Factual Finding Regarding QAI Criteria for Table SIRVA 1. Onset After a review of the entire record, I find that it is more likely than not that the onset of Petitioner’s shoulder pain occurred within 48 hours of vaccine administration. As Petitioner persuasively argues, a delay in seeking care does not automatically defeat a SIRVA claim. See Winkle v. Sec’y of Health & Human Servs., No. 20-485V, 2021 WL 2808993, at *4 (Fed. Cl. Spec. Mstr. June 3, 2021) (“[i]t is common for a SIRVA petitioner to delay treatment, thinking his/her injury will resolve on its own” and finding that the onset of the petitioner’s pain occurred within 48 hours of vaccination in spite of a five month delay in seeking treatment). A petitioner must only show, by a preponderance of the evidence, that the onset of his or her shoulder pain likely occurred within 48 hours. Sections 11(c)(1)(C) and 13(a)(1)(A); 42 C.F.R. § 100.3. This does not mean that a petitioner must be able to cite to a medical record created within the first 48 hours after vaccination. See Wilkinson, 2022 WL 444451, at *4-5; Ray, 2018 WL 7051571, at *5-6. In this case, the record contains ample evidence supporting a finding that the onset of Petitioner’s shoulder pain was within 48 hours, and no evidence to the contrary. When Petitioner first sought care three months after vaccination, she reported right arm pain from a vaccine on November 7, 2019, and stated that she had pain during the shot and had been sore since then. Ex. 3 at 9. A day or two later, she also had pain when moving her arm. Id. When she reported for an MRI, she reported right shoulder pain from a Td vaccine that started one or two days after the shot. Ex. 4 at 1. She reported to her orthopedist that her right shoulder pain began after a tetanus shot on November 7, 2019. Ex. 5 at 17. And her physical therapist documented decreased ROM from a painful vaccination to her right shoulder. Id. at 3. Thus, the medical records support an onset within 48 hours. This medical record evidence is bolstered by affidavit evidence. Petitioner averred that the vaccine caused immediate pain, and provided reasonable explanations for her delay in seeking care. Exs. 1, 11. Her husband attested to the immediacy of her pain based on his observations. Ex. 12. And her child averred that while he was away when she received the vaccine, he returned home approximately two weeks later, and again a month thereafter, and witnessed her struggling to use her right arm. Ex. 13. Respondent objects that the medical records reporting onset shortly after vaccination “merely reflect petitioner’s reported history.” Resp. at *7. Respondent argues that I cannot find a vaccine-related injury occurred based solely on the claims of Petitioner, and that her claims must be substantiated by medical records or a credible expert medical opinion, citing Letts, 39 Fed. Cl. 259. Id. But Petitioner’s claims are substantiated by medical records. Although the medical records include information provided by Petitioner, the Federal Circuit has emphasized that the reliability of such 10 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 11 of 12 records is due in part to the very fact that they “contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d 1525, 1528 (emphasis added). While reports of onset or pain might in some cases be undercut by other evidence (record or testimonial), that is not so here. This case is in contrast to Lett, where there were no supporting medical records, and the petitioners sought to corroborate their claim with an expert opinion that assumed the truth of the petitioners’ affidavit evidence. Lett, 39 Fed. Cl. at 262. There is a difference between an expert opinion that relies on the accuracy of affidavit evidence created in litigation – which is the situation addressed in Lett – and records of medical treatment that rely in part on histories provided to health care providers for purposes of obtaining care – which Cucuras instructs are generally trustworthy and reliable. Cucuras, 993 F.2d at 1528. Petitioner’s medical records and corroborating affidavit evidence together establish that, more likely than not, the onset of her shoulder pain occurred within 48 hours of vaccination. 2. Other SIRVA QAI Criteria Respondent does not contest the remaining SIRVA QAI criteria, and I find that the record contains preponderant evidence that they are satisfied. Petitioner did not have a history of right arm pain or injury prior to vaccination that would explain her symptoms after vaccination. See generally Ex. 3. Although she experienced some problems with her right shoulder in the year before vaccination, the last medical record relating to this problem was from nearly eight months before vaccination, suggesting that this problem resolved long before vaccination and thus would not explain her post-vaccination condition. Ex. 3 at 1. Her pain and reduced ROM were limited to her right shoulder, where the Td vaccine was administered, and no other condition or abnormality has been identified that would explain her post-vaccination symptoms. See generally Exs. 3, 5. E. Other Requirements for Entitlement The record contains preponderant evidence that other requirements for entitlement are satisfied as well. Petitioner received a covered vaccine in the United States. Ex. 2 at 1. She experienced the residual effects of her condition for more than six months. Exs. 3 at 9-10; 5 at 17. She averred that she has not previously collected an award or settlement of a civil action for damages, and there are no civil actions pending. Ex. 1 at ¶¶ 31-32. Conclusion Based on my review of the record as a whole, I find that it is more likely than not that the onset of Petitioner’s shoulder pain occurred within 48 hours. I find that all other SIRVA Table requirements are met, as are other requirements for entitlement. Therefore, 11 Case 1:20-vv-01844-UNJ Document 41 Filed 10/31/23 Page 12 of 12 Petitioner’s motion for a ruling on the record that she is entitled to compensation is GRANTED. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 12 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01844-1 Date issued/filed: 2024-12-04 Pages: 14 Docket text: PUBLIC DECISION (Originally filed: 10/28/2024) regarding 50 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 1 of 14 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1844V FAYTH BRENNAN, Chief Special Master Corcoran Petitioner, Filed: October 28, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Rhonda Lorenz-Pignato, Shannon Law Group, PC, Woodridge, IL, for Petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 14, 2020, Fayth Brennan 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 that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from a tetanus diphtheria (“Td”) vaccine received on November 7, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. Although I ruled in September 2023 that Petitioner was entitled to compensation (ECF No. 36), the parties were unable to resolve damages. Accordingly, the question of damages has been briefed by both sides. Now, for the reasons set forth below, I find that 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website , and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 2 of 14 Petitioner is entitled to a damages award of $40,000.00 for actual pain and suffering, plus $2,364.49 for out of pocket expenses. I. Relevant Facts3 A. Medical Records On November 7, 2019, Petitioner received a Td vaccine in her right deltoid. Ex. 2 at 1. Three months later, on February 11, 2020, she saw John Brennan, Doctor of Chiropractic Medicine, at the Brennan Chiropractic Clinic, complaining of pain in her right deltoid from the November vaccination.4 Ex. 3 at 9. Dr. Brennan is Petitioner’s husband and primary care physician, and Petitioner also works part time at his office, serving as the office manager and performing physical therapy. Ex. 1 at ¶¶ 2, 3, 5. Petitioner stated at this time that she had been experiencing right deltoid pain and shoulder soreness since vaccination. Ex. 3 at 13. She reported a pain level of zero to one at rest, but ten out of ten when she moved her arm “wrong,” which caused a deep ache that lasted three to five seconds. Id. She had self-treated until this time, thinking it would go away. Id. On examination, Petitioner displayed decreased and painful range of motion (“ROM”) in all directions, depending on her hand and thumb position. Ex. 3 at 9, 12. Her right shoulder active and passive ROM was 180 degrees in abduction, with pain beyond 120 degrees, 45 degrees in internal rotation, 90 degrees in external rotation, 150 degrees in flexion, and 45 degrees in extension.5 Id. at 12. She had positive results on the Yergason’s and Appley’s tests. Id. Dr. Brennan recommended hot packs and trigger point therapy. Id. at 9. Petitioner returned to Dr. Brennan over two months later, on April 30, 2020, rating her right arm pain as the same as before, with ongoing decreased ROM. Ex. 3 at 9. Dr. Brennan recommended stretches and trigger point therapy. Id. Petitioner also received chiropractic adjustments for her neck, mid-back, and low back. Id. She sought care again the following week (May 5, 2020), reporting very mild improvement to no change, with continuing decreased ROM. Id. at 9. She rated her pain as nine out of ten. Id. Dr. Brennan again recommended stretches and trigger point therapy. Id. 3 Although I have reviewed the entire record, this decision discusses only the evidence relevant to the parties’ dispute. 4 Dr. Brennan’s records are handwritten and difficult to read. 5 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in abduction, 90 to 100 degrees in external rotation, 70 to 90 degrees in internal rotation, and 50 to 60 degrees in extension. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 76, 80, 84, 88 (F. A. Davis Co., 5th ed. 2016). 2 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 3 of 14 Petitioner saw Dr. Brennan for the same issues on May 12, May 19, and May 26, 2020, reporting pain ranging from zero to ten out of ten. Ex. 3 at 10. On June 9, 2020, Dr. Brennan noted that Petitioner’s ROM had improved, but external rotation was still painful. Ex. 3 at 11. Her pain continued to range from zero to ten in June 2020. Id. at 11, 14. On June 16, 2020, Petitioner underwent a right shoulder MRI. Ex. 4 at 1-2. The MRI showed a small articular sided tear of the supraspinatus and no evidence of soft tissue abnormality adjacent to the pain marker along the lateral deltoid. Id. at 2. There was a small area of fluid collection within the articular side of the anterior supraspinatus tendon. Id. at 1. There was no evidence of subacromial-subdeltoid bursal effusion. Id. Petitioner continued to treat with Dr. Brennan that summer. By July 7, 2020, she had no pain with ROM, and continued to complain of pain between zero and ten out of ten. Ex. 3 at 14. However, on July 20, 2020, Petitioner was seen for the first time by a third party treater - orthopedist Dr. Daniel Buss of Sports & Orthopaedic Specialists. Ex. 5 at 17. She now reported right shoulder pain that began after her November 2019 vaccination. Id. at 18. Her symptoms had continued despite self-treatment, including band exercises, and chiropractic visits with her husband since February, which included manipulation and soft tissue mobilization. Id. The pain was emanating from the anterior and lateral aspect of the shoulder, and was worse with reaching back, reaching across her body, and various rotational movements. Id. She had occasional nighttime pain. Id. The record states that she rated her pain as zero out of ten. Id. On examination, Petitioner’s right shoulder active ROM was 175 degrees in forward flexion and abduction (compared to 180 degrees on the left) and 70 degrees in external rotation (compared to 85 degrees on the left). Ex. 5 at 18. Dr. Buss reviewed the MRI and noted a thickened inferior capsule, degenerative rotator cuff findings, a partial supraspinatus defect, atrophy of the supraspinatus, moderate acromioclavicular hypertrophy, and congenital type 3 acromion. Id. He advised that “her diagnosis of adhesive capsulitis can take up to 18 months to resolve.” Id. at 19. He recommended conservative treatment including physical therapy and a possible glenohumeral joint injection, which Petitioner declined. Id. Petitioner underwent a physical therapy evaluation on July 28, 2020. Ex. 5 at 2. She presented with decreased ROM, which she reported began after a painful vaccination to the right lateral shoulder. Id. at 3.6 On examination, her right shoulder ROM was reduced and painful. Id. at 4. Her right shoulder active ROM was 135 degrees in flexion, 105 degrees in abduction, and 65 degrees in external rotation. Id. at 4. She had positive right shoulder impingement results on the Neer and Hawkins Kennedy tests as well as internal impingement and crossover impingement tests. Id. at 5. While additional sessions 6 The record states that Petitioner presented with decreased ROM of her left shoulder (Ex. 5 at 3), but the examination section records reduced and painful ROM of her right shoulder (Ex. 5 at 4). Thus, the reference to Petitioner’s left shoulder appears to be a typo. 3 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 4 of 14 were recommended, Petitioner explained that she is a physical therapy assistant and her husband is a chiropractor and she planned to do exercises on her own with her husband’s help, with no further formal physical therapy planned. Id. at 6. Petitioner was given a home exercise program. Id. Petitioner filed documents from Courage Kenny Sports & Physical Therapy Center (where she received physical therapy) and Sports & Orthopaedic Specialists (her orthopedist’s practice), containing twelve pages of shoulder exercises. Ex. 6. Petitioner continued to see her husband for her shoulder pain through July and August 2020. Ex. 3 at 15-16. Her ROM showed some improvement and she continued to report pain levels between zero and ten out of ten. Id. Petitioner saw Dr. Brennan three times in September 2020, reporting decreased frequency and intensity of her shoulder pain as well as improved ROM. Ex. 3 Vol. II (ECF No. 48-2) at 19.7 On September 15, 2020, she noted pain with certain motions, mostly abduction, and that when pain was present it was nine out of ten and lasted about five seconds. Id. On October 20, 2020, she was still experiencing lingering pain and had plateaued. Id. at 18. She returned to Dr. Brennan on November 3, December 1, and December 15, 2020. Id. at 17-18. At all of these appointments, she also received chiropractic adjustments to her neck, mid-back, and low back areas. Id. at 17-19. At her December 15, 2020 appointment, she was experiencing pain with certain motions, and was able to do more activities without pain. Ex. 3 Vol. III (ECF No. 13-2) at 32. When present, the pain was nine out of ten. Id. Petitioner continued treating with Dr. Brennan into early 2021, seeing him on January 7, January 19, and February 9, 2021. Ex. 3 Vol. III (ECF No. 13-2) at 32-33. The January 7th record noted intense pain at end point ROM, which was most pronounced in internal rotation. Id. at 32. Dr. Brennan added that she “should cont[inue] to [treat] every 2-3 [weeks] while she cont[inues] with P.T. at home exercises.” Id. At her February 9th appointment, her pain had decreased in frequency, but she rated it as ten out of ten when it occurred. Id. at 33. There is a record dated March 2 or 7, 2021 that is crossed off with a note “No time to finish appt.” Id. at 33. She saw Dr. Brennan on March 9, March 23, 7 Petitioner’s filings in this case are not organized or labeled properly. Petitioner filed Exhibit 3, containing records from Brennan Chiropractic, with the petition on December 14, 2020 (ECF No. 1-5). On July 1, 2021, she filed Exhibit 3 Volume III (ECF No. 13-2), which was mislabeled as Exhibit 3 Volume II (although the CM/ECF docket text correctly noted it as Exhibit 3 Volume III). Over the next three years, she filed additional Brennan Chiropractic records as Exhibits 14, 16, and 17 (ECF Nos. 30-2, 38-2, and 43-2). Then, after damages briefing was nearly complete, she filed additional Brennan Chiropractic records, this time labeling them Exhibit 3 Volume II (ECF No. 48-2), and continuing the pagination from Exhibit 3 that was filed over three years earlier. While records sometimes may be split into multiple volumes if necessary for uploading to CM/ECF, it is not expected or appropriate to file records months or years later purporting to supplement an earlier exhibit. Doing so makes the record confusing and difficult to follow. The records filed as Exhibit 3 Volumes II and III should have simply been given a new exhibit number. The same is true of two other records filed on March 7, 2024, Exhibit 4 Vol. II (ECF No. 48-3) and Exhibit 5 Vol. II (ECF No. 48-4). 4 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 5 of 14 April 6, April 20, May 11, June 1, and June 22, 2021. Id. at 33-35. She received chiropractic adjustments to her neck and back, in addition to her shoulder, at most of these appointments. Id. Petitioner continued treating with Dr. Brennan for the next two years, sometimes on a regular basis and at times with gaps of one to four months. Exs. 3, 14, 16, 17. At many of these visits, she received chiropractic care for her neck and back as well as her shoulder. Id. By January 2022, she had regained full ROM. Ex. 14 at 4. She continued to have pain with pressure at the injection site, but her pain ratings were generally low. Exs. 3, 14, 16, 17. On May 10, 2022, Dr. Brennan noted that Petitioner had regained approximately 90% of her right shoulder ROM, but still had pain with palpation at the injection site. Ex. 16 at 1. He thought this was likely a permanent condition. Id. Petitioner received chiropractic adjustments to her neck and mid-back areas at this visit. Id. Petitioner saw Dr. Brennan on June 7, 2022, complaining that her right shoulder recently started aching at the injection site. Ex. 16 at 2. She rated her pain as two to three out of ten. Id. She wanted to use conservative care and avoid injections and surgery. Id. She also received chiropractic care to her mid-back area. Id. The next month (July 12, 2022), her right shoulder ROM was still good, but the muscles around her right shoulder were sore and painful with palpation. Id. She received chiropractic adjustments to her neck and mid-back areas as well as her shoulder. Id. She returned to Dr. Brennan on September 13 and December 13, 2022 for right shoulder pain. Id. at 3. At both appointments she received chiropractic adjustments to her neck, mid-back, and low back areas. Id. On January 24, 2023, Petitioner reported to Dr. Brennan that her right arm was “much better.” Ex. 16 at 4. Two months later (March 14, 2023), she explained that her right arm pain had gone away, but recently reappeared. Id. She received chiropractic adjustments to her neck area as well. Id. She continued to treat with Dr. Brennan at two to four month intervals, on May 30, August 8, and December 5, 2023, also receiving chiropractic adjustments to her neck, mid-back, and low back areas. Id. at 5; Ex. 17 at 1. B. Testimonial Statements Petitioner has filed an affidavit and four declarations in support of her claim.8 Exs. 1, 11, 12, 13, 19. Petitioner has a degree as a physical therapy assistant. Ex. 1 at ¶ 3. She is generally in good health and tries to manage her health on her own, having only seen a medical doctor approximately three times in the 19 years prior to her vaccination. 8 Although Petitioner labeled Exhibits 11, 12, 13, and 19 as affidavits, they are not notarized. Nonetheless, they are acceptable as declarations because they comply with the requirements of 28 U.S.C. §1746. 5 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 6 of 14 Id. at ¶ 4. She grew up on a farm and learned to allow injuries to heal at home rather than going to a doctor. Ex. 11 at ¶¶ 2-3. She continued these natural practices as an adult, and has minimal health insurance coverage and has had “very little medical treatment as an adult.” Id. at ¶ 3. She tries to manage her health using her knowledge and training from working as a physical therapy assistant and 28 years working in a chiropractic office. Ex. 1 at ¶ 4. When she received the November 7, 2019 Td vaccine, Petitioner found it to be “more painful than any shot I had ever received before,” and she recalled yelling “[ow] that hurt!” when it was administered. Ex. 1 at ¶ 7. Afterward, she experienced additional pain within 48 hours at or around the injection site in her right deltoid, as well as limited ROM. Id. at ¶ 10. She attempted to manage the pain on her own using hot packs, trigger point therapy, stretches, trans friction massages, and homeopathic remedies. Id. at ¶ 11. Approximately a month after vaccination, she contacted the Wright County Public Health Department (where she was vaccinated) about her shoulder pain, and was informed that the Td shot was one of the more painful shots. Id. at ¶ 12. Thus, she decided to continue self-treating. Id. Petitioner did research online and found that beyond physical therapy, the only treatment options were medication and surgery, which she did not want to pursue. Ex. 1 at ¶ 13. During this time, she got sick, her mother got sick, and her children came home for the holidays. Id. at ¶¶ 14-16. She continued to self-treat in the early days of the COVID- 19 Pandemic. Id. at ¶ 19. In late April 2020, she returned to Brennan Chiropractic for treatment. Id. at ¶ 20. At best, her pain was zero to one out of ten, but when she moved her arm in certain ways she experienced an intense, deep ache for three to five seconds that she rated as ten out of ten. Id. Petitioner continued weekly treatments between May and July 2020, also continuing physical therapy exercises at home during this time. Ex. 1 at ¶¶ 21, 23, 26. When she saw Dr. Buss in July 2020, he told her she had adhesive capsulitis, which generally resolved without surgery but could take up to 18 months to resolve. Id. at ¶ 24. She had one formal physical therapy evaluation, then performed the exercises on her own, due to her education and experience. Id. at ¶ 25. Petitioner experienced marked improvements from her treatment, and as of January 2022 (when she signed the declaration filed as Exhibit 11), she had full ROM and no pain with ROM of her shoulder. Ex. 11 at ¶ 7. However, she still had pain with pressure at the injection site, as well as unusual fatigue with prolonged use of her right arm. Id. She describes the pain as a “sharp bee sting like sensation at times, as well as a deep, aching pain.” Id. Petitioner’s vaccine injury “greatly affected” her home life for over a year. Ex. 11 at ¶ 8. She had difficulty with daily activities like hugging her children, putting on and taking off clothes, reaching into the back seat, and was not able to play basketball or pickleball. 6 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 7 of 14 Id. In October,9 “at the direction of Brennan Chiropractic and myself,” she began taking a natural product to help her body detox from heavy metals and toxins. Ex. 11 at ¶ 9. Dr. Brennan also submitted an affidavit on Petitioner’s behalf. Ex. 12. He stated that as Petitioner’s primary treating doctor and husband, he has seen Petitioner try to manage her health using natural methods and that except for a few rare occasions, she generally does not seek treatment from medical doctors. Id. at ¶¶ 4, 6-7. He saw Petitioner on a daily basis since her vaccination with the exception of short trips or visits to their children. Id. at ¶ 8. On November 7, 2019, Petitioner told Dr. Brennan that she received a Td vaccine and that her right shoulder and arm were in pain thereafter. Ex. 12 at ¶ 11. Over the following month, she continued to complain that her right arm was still hurting a lot from the vaccination. Id. at ¶ 12. She performed stretches but continued to have sharp pain in her right shoulder with various motions, along with pain and tenderness at the injection site. Id. at ¶¶ 12-13. Petitioner was busy during the months following vaccination due to the holidays, their children coming home on break, and caring for her mother and herself when they became ill. Id. at ¶ 14. Dr. Brennan began treating Petitioner’s right shoulder pain on February 11, 2020. Ex. 12 at ¶ 15. His treatments have included manual adjustments, massage, trigger point therapy, trans friction massage, hot packs, electrical muscle stimulation, Pettibone Tendon Ligament Muscle Stimulator, and ultrasound. Id. at ¶ 16. Since her injury, he has noticed Petitioner favoring her right arm and at times discontinuing activities due to shoulder pain. Id. at ¶ 19. She was able to regain normal ROM in her shoulder and arm, but (as of January 20, 2022, when the declaration filed as Exhibit 12 was signed), continued to have pain and tenderness with pressure at the vaccination situs. Id. at ¶ 20. Her shoulder pain limited many activities for over a year. Id. at ¶ 21. He also noticed that her endurance has suffered, and that she has decreased outdoor activities due to her injury. Id. at ¶ 21. Levi Brennan submitted an affidavit in support of Petitioner, his mother. Ex. 13. He explained that he was away at college when she received the vaccine, but returned home for breaks around November 23-26, 2019 and December 20, 2019 to January 12, 2020. Id. at ¶¶ 5-6. During those breaks, he saw his mother struggle to reach at or above her head due to pain and resistance from her right arm. Id. at ¶ 6. When he was in the kitchen, he helped by getting items off of shelves for her. Id. She struggled to put on her coat or give him a hug due to her limited ROM. Id. Levi Brennan and Petitioner traveled together in early March 2020. Ex. 13 at ¶ 7. During that trip, he did not see her struggle with her arm because he was mostly with 9 Petitioner does not state the year. In any event, Petitioner has agreed to subtract the “nutrient charges.” Reply at *7. 7 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 8 of 14 friends and when he did see her, she was not participating in activities that aggravated her arm. Id. He does recall that she struggled changing clothes at night and in the morning. Id. In late March, he moved back home and continued to see her show pain and restrictions from her right shoulder. Id. at ¶ 8. Over the next year, Levi Brennan saw his mother struggle with limitations such as difficulty reaching overhead, putting on her jacket, and putting her arm around him for a hug, and she could not play racket sports or basketball. Ex. 13 at ¶ 9. He often heard her exclaim “Ow, ow, ow, ow!” when she moved her arm in a certain position. Id. at ¶ 10. He states this happened “multiple times a week, and sometimes daily, for over a year.” Id. He recalls seeing her attempt to hit a pickleball in late May 2020 and that she “ended up doubling over in pain.” Id. at ¶ 11. As of late January 2022 (when he signed the declaration filed as Exhibit 13), Levi Brennan states that it does not appear that she has any remaining ROM problems. Ex. 13 at ¶ 12. However, she still complained of pain at the vaccination situs. Id. Dr. Brennan filed a supplemental declaration concerning the Brennan Chiropractic billing and records. Ex. 19. He explains that charges for adjustments to Petitioner’s shoulder were coded on bill as “CMT-extra spinal.” Id. at ¶ 5. Charges for adjustments to “referred neck and mid-back pain” were described on bills as “CMT, spinal 1-2 regions.” Id. at ¶ 6. Dr. Brennan explains that referred pain occurs when a body part is injured and other body parts feel the effects of it. Ex. 19 at ¶ 8. He asserts that Petitioner’s neck and mid-back were affected by her shoulder injury. Id. As such, he asserts that the “CMT, spinal 1-2 regions” adjustments were “medically necessary to help bring healing and were related to her shoulder injury.” Id. at ¶ 9. And the fact that Petitioner regained full ROM without residual shoulder pain “should show what I did as her chiropractor was effective.” Id. at ¶ 10. He adds that ultrasound uses sound waves to produce vibrations, which create heat that penetrates deep within tissues and helps relax muscles, increase blood flow, speed healing, break adhesions and scar tissue, and reduce inflammation, and this therapy helped Petitioner’s shoulder heal. Id. at ¶ 11. C. Other Evidence Petitioner submitted an out of pocket summary and billing detail document. Ex. 18. Petitioner requests reimbursement of $4,000.00 for services from Brennan Chiropractic, $50.00 for orthopedic services provided by Allina Health, $189.49 for physical therapy services provided by Allina Health, and $600.00 paid to Summa for an MRI. Id. at 1. Petitioner included proof of payment for these expenses. Ex. 4 Vol II (ECF No. 48-3) at 13; Ex. 18 at 11-14. For expenses paid to Brennan Chiropractic, Petitioner included a 8 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 9 of 14 cancelled check dated December 5, 2023 in the amount of $4,000.00 that was drawn on the account of “J and F Brennan.” Ex. 18 at 11. The Brennan Chiropractic records include a charge for service on May 24, 2022. Ex. 18 at 8. However, there does not appear to be a treatment record for that date. II. The Parties’ Arguments A. Pain and Suffering Petitioner requests an award of $80,000.00 for pain and suffering. Petitioner’s Damages Brief, filed Jan. 17, 2024, at *19 (ECF No. 45) (“Br.”). Petitioner asserts that she treated for over three years, including 15 months of severe pain, followed by 17 months of mid to lower pain, and another 15 months of low sporadic pain (Br. at *13-18). She had an MRI, an orthopedic evaluation, a physical therapy evaluation, and 48 chiropractic sessions, and performed exercises on her own. Id. at *13. She also notes that her visits to and treatment by a chiropractor are “similar to that of a physical therapist.”10 Id. (citing Wolford v. Sec’y of Health & Human Servs., No. 17-451V, 2022 WL 3133468 (Fed. Cl. Spec. Mstr. July 11, 2022). Petitioner cites Wolford, Gibson, Mantagas, Russano, and Coluccio, with pain and suffering awards ranging from $70,000.00 to $80,000.00, in support of her proposed award.11 Respondent, by contrast, does not propose a specific pain and suffering award, instead asserting that Petitioner’s overall injury was “very mild” and suggesting an “award consistent with awards in other cases of that nature.” Respondent’s Damages Brief, filed Feb. 27, 2024, at *6 (ECF No. 47) (“Opp.”). Respondent states that he routinely proffers less than $37,500.00 in cases “when it is clear that damages are worth less than in the lowest reasoned pain-and-suffering awards,” citing decisions in McKenna, McGraw,12 and 10 Petitioner misreads Wolford, however. The records in that case repeatedly referred to the petitioner receiving physical therapy treatment from a chiropractor. See Wolford, 2022 WL 3133468, at *11 (“petitioner visited a chiropractor for physical therapy”); id. at *3 (noting that the treating chiropractor gave the petitioner shoulder exercises and stretches to do); id. at *4-5 (Petitioner’s primary care physician noted the petitioner was seeing a chiropractor for physical therapy and advised him to continue, and the orthopedist advised him to continue physical therapy). It was in that context that the special master stated that the petitioner’s “treatment by a chiropractor is similar to that of a physical therapist.” Id. at *11. In this case, the records indicate that Petitioner received chiropractic care – not physical therapy – from Dr. Brennan. 11 Wolford, 2022 WL 3133468; Gibson v. Sec’y of Health & Human Servs., No. 20-243V, 2022 WL 17820891 (Fed. Cl. Spec. Mstr. Oct. 5, 2022); Mantagas v. Sec’y of Health & Human Servs., No. 20-1720V, 2023 WL 4573855 (Fed. Cl. Spec. Mstr. June 14, 2023); Russano v. Sec’y of Health & Human Servs., No. 18-0392V, 2020 WL 3639804 (Fed. Cl. Spec. Mstr. June 4, 2020); and Coluccio v. Sec’y of Health & Human Servs., No. 19-1684V, 2022 WL 17849579 (Fed. Cl. Spec. Mstr. Nov. 14, 2022). 12 As Petitioner notes in her reply, at the time of briefing McGraw had not yet been published, and thus she could not have reviewed it or compared it to her case. Reply at *4. I concur, and will therefore not include it in my analysis herein. 9 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 10 of 14 Ramos.13 Opp. at *9-10. Respondent argues that Petitioner’s initial delay in reporting her pain, her primary treatment modality – chiropractic treatment provided by her husband – and lack of other extensive treatment all favor an award consistent with other “very mild” SIRVA cases. Id. at *10. And the cases Petitioner cites are “more severe than her very mild course of treatment,” making them inapplicable. Id. In reply, Petitioner emphasizes her MRI finding of a small tear and her lengthy SIRVA treatment of three years and ten months. Petitioner’s Reply, filed March 7, 2024, at *2-3 (ECF No. 49) (“Reply). She also describes her injury as lasting 32 months and then plateauing and becoming permanent (Reply at *2) – although the record does not support a finding of a permanent injury. Responding to Respondent’s argument concerning her delay in seeking care, she cites the many reasons why she did so, asserting that the delay in seeking care is not a sign of lack of pain. Id. at *3. Petitioner also argues that Ramos is very different” from this case, in that the Ramos petitioner first sought treatment four months after vaccination and, after a few other appointments, did not seek care for his shoulder again for another six months. Reply at *4. By contrast, Ms. Brennan received “a substantial amount of treatment for her shoulder.” Id B. Out of Pocket Expenses Petitioner requests reimbursement for out of pocket expenses totaling $4,839.49.14 Reply at *5. This total includes $4,000.00 for chiropractic care from Brennan Chiropractic, $50.00 paid to the orthopedist, $189.49 paid for her physical therapy evaluation, and $600.00 paid for her MRI. Id. Respondent agrees that Petitioner’s expenses for the orthopedist, physical therapy evaluation, and MRI should be reimbursed.15 Opp. at *11; Reply at *5. But Respondent 13 McKenna v. Sec’y of Health & Human Servs., No. 21-0030V, 2023 WL 5045121 (Fed. Cl. Spec. Mstr. July 7, 2023); McGraw v. Sec’y of Health & Human Servs., No. 21-72V, 2024 WL 1160065 (Fed. Cl. Spec. Mstr. Feb. 15, 2024); and Ramos v. Sec’y of Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021). 14 In her damages brief, Petitioner requested $4,739.49 for out of pocket expenses. Br. at *18. However, in her reply, she explained that due to an inadvertent misstatement of the amount for the MRI, the total is actually $4,839.49. Reply at *5. 15 In his damages brief, Respondent contested reimbursement for the MRI due to lack of proof of payment for the charge. Opp. at *11. This prompted Petitioner’s counsel to investigate and discover that some records had been prepared for filing in March 2021, but had not actually been filed. Reply at *5. Petitioner represents that after Petitioner produced proof of payment for the MRI, Respondent agreed that this should be reimbursed. Id. 10 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 11 of 14 does not agree to reimbursement of the Brennan Chiropractic charges, on the basis that this amount “clearly includes items unrelated to petitioner’s right shoulder, such as spinal manipulation, multiple ultrasounds, and records production.” Id. Petitioner replies that Brennan Chiropractic charges are reimbursable because they are for treatment of her SIRVA. Reply at *6-7. Dr. Brennan submitted a supplemental affidavit explaining the charges and that those listed as “extraspinal” are for chiropractic manipulation therapy for the shoulder, and those listed as “spinal” are treatments for “the areas of the neck and spine that were affected by (or related to) Petitioner’s shoulder pain.” Id. at *6. And the ultrasounds “were important in the treatment of Petitioner’s shoulder injury” for the reasons Dr. Brennan explained in his supplemental affidavit. Id. Petitioner acknowledged that the charges for record production could be eliminated, and states that she has agreed to subtract “nutrient charges” for supplements. Id. at *7. She adds that these total only $150.57, and that because Dr. Brennan had already discounted his bill by $1,125.57, these charges had already effectively been removed from her request. Id. III. Legal Standard 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 my prior discussion in Section V.A-B of Fritz v. Sec’y of Health & Human Servs., No. 21-2086V, 2024 WL 4349581, at *6-8 (Fed. Cl. Spec. Mstr. Aug. 29, 2024). In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.00.” Section 15(a)(4). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering.16 16 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). 11 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 12 of 14 IV. Appropriate Compensation A. Pain and Suffering Although I found that Dr. Brennan’s records, along with other medical records, were sufficient to rule in Petitioner’s favor on entitlement, in evaluating damages I cannot ignore that he is not only her health care provider. Dr. Brennan is also Petitioner’s husband and employer. As such, his role was more complicated, and somewhat less objective, than a typical health care provider.17 I do not suggest that either Petitioner or Dr. Brennan has acted improperly or in any way lacking integrity. But these circumstances inherently raise questions about the provider’s ability to be objective – and thus the extent to which his treater conclusions can be relied upon. See, e.g., Flynn v. Sec’y of Health & Human Servs., No. 89-54V, 1990 WL 293364, at *6 (Fed. Cl. Spec. Mstr. May 17, 1990) (“written records contemporaneously created by “disinterested” persons should ordinarily be considered more reliable evidence than testimony of persons with a financial or other strong interest in the outcome of litigation”); McDaniel v. Hartford Life and Accident Ins. Co., No. 5:07- cv-7, 2008 WL 4426087, at *7 (M.D. Ga. Sept. 25, 2008) (giving greater weight to objective physicians than personal treating physicians in part due to “a concern that the insured’s personal physicians will be tempted, consciously or subconsciously, to skew their findings out of personal loyalty or concern for a regular patient”). These concerns are cast into high relief when a comparison is made to Petitioner’s records from third-party treatment visits. Thus, when Petitioner saw Dr. Buss in July 2020, she reported no pain, and her right shoulder active ROM was only slightly worse than her left shoulder. Ex. 5 at 18, 19. At her physical therapy evaluation the following week, her ROM had worsened and she had positive impingement tests. Id. at 4, 5. As she treated with Dr. Brennan over the following months, her pain decreased and her ROM improved. Overall, the record best supports a finding that Petitioner’s injury was on the milder side for a SIRVA and had mostly improved, with lingering symptoms, by the end of 2020, even though treatment continued thereafter.18 At that point, the records show that she 17 Even the lack of an arms-length nature of their professional treatment relationship is problematic to some degree. Petitioner treated with her husband over a period of nearly four years, from February 11, 2020 to December 5, 2023. Ex. 18 at 2-9. But the payment records indicate that she did not make any payments until the final treatment date, December 5, 2023. Id. at 11. At that time, Petitioner paid the entire bill from a joint account of “J and F Brennan” – presumably John (Dr. Brennan) and Fayth (Petitioner) Brennan. Id. Thus, it appears that Dr. Brennan’s fees were paid from his own checking account. 18 That same record suggests Petitioner’s injury was mostly resolved by the fall of 2020. On September 8, 2020, she reported a pain level of zero out of ten, and a decrease in the frequency of her pain frequency. Ex. 3 Vol. II (ECF No. 48-2) at 19. In October 2020, she had “plateaued.” Id. at 18. And on November 3, 12 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 13 of 14 continued to complain of only occasional and brief – though intense – spikes of pain that were associated with certain motions, especially at end ranges. Although she continued to treat for another three years, she treated solely with Dr. Brennan, and those records document minimal and improving symptoms. During 2020, Petitioner consulted with an orthopedist once, underwent an MRI and physical therapy evaluation, and attended 23 chiropractic appointments, at many of which she was treated not only for her shoulder and but also her neck and back. Although Dr. Brennan states that her neck and back were affected by her shoulder injury and thus reflect vaccine injury-related sequelae, this contention is not supported by the record. In fact, Petitioner saw Dr. Brennan for neck and back problems prior to her vaccine-related shoulder injury, at least as far back as 2017. Ex. 3 at 3-5. Thus, Petitioner’s injury was on the milder side, and persisted for about a year, with relatively minimal treatment. Throughout treatment, Petitioner had little or no pain at rest, but relatively severe pain with certain movements which quickly abated. As such, although Petitioner’s activities were restricted, she was not in constant pain, as is true in some SIRVA cases. The injury also did not involve surgery, or any more intrusive form of treatment of the sort that would counsel in favor of a higher award. The cases Petitioner cites all involve more severe injuries, with Gibson and Mantagas also involving injuries of greater duration. Ramos, by contrast, is a good comparable. Ramos and the present matter involve petitioners with injuries of similar duration, about a year. Both significantly delayed seeking care, with Petitioner first treating 96 days after vaccination compared to 121 days for the Ramos petitioner. Neither petitioner had a cortisone injection, and the Ramos petitioner attended more physical therapy and had greater ROM restrictions and greater pain at rest, while Petitioner also treated with chiropractic care. Ramos, 2021 WL 688576, at *2. I find that the same award is appropriate in this case, and therefore Petitioner shall receive $40,000.00. B. Out of Pocket Expenses I have found that Petitioner’s SIRVA related treatment continued through the end of 2020. In the section above, I also noted that the record does not support a finding that her treatment for her neck and back complaints were related to her SIRVA, and thus they are not reimbursable. I therefore find that $1,525.00 of the amount requested for Brennan 2020, she was reporting three to five seconds of intense pain when pain was elicited. Id. At most, she continued to have mild and intermittent symptoms until December 2020. 13 Case 1:20-vv-01844-UNJ Document 56 Filed 12/04/24 Page 14 of 14 Chiropractic is reimbursable.19 This is in addition to the sums agreed to by the parties ($50.00 paid to the orthopedist, $189.49 paid for her physical therapy evaluation, and $600.00 paid for her MRI). Thus, Petitioner is entitled to a total of $2,364.49 for out-of- pocket expenses. Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $40,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering.20 Additionally, I find that Petitioner is entitled to $2,364.49 in out of pocket expenses. Based on consideration of the record as a whole and arguments of the parties, I award Petitioner a lump sum payment of $42,364.49, in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this Decision.21 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 19 This sum includes all treatment in 2020 from Brennan Chiropractic except for charges for her neck and back treatment (those coded as CMT-spinal) and the charges Petitioner agreed to subtract (nutrient charges and records fees). 20 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552 (Fed. Cir. 1994)). 21 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 14 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01844-cl-extra-10819788 Date issued/filed: 2025-03-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10353200 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1844V FAYTH BRENNAN, Chief Special Master Corcoran Petitioner, v. Filed: January 29, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Rhonda Lorenz-Pignato, Shannon Law Group, P.C., Woodbridge, IL, for Petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On December 14, 2020, Fayth Brennan 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 that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from a tetanus diphtheria vaccine received on November 7, 2019. Petition at 1. I issued a ruling finding Petitioner entitled to compensation on September 13, 2023 (ECF No. 36), and a decision awarding 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). compensation to Petitioner on October 28, 2024 (ECF No. 50), following briefing by the parties. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $95,018.60 (representing $94,314.00 for fees and $704.60 for costs). Petitioner’s Motion for Fees and Costs filed Dec. 19, 2024, ECF No. 58. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of- pocket expenses. ECF No. 57. Respondent reacted to the motion on January 2, 2025, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 59. The same day, Petitioner filed a reply noting that “Respondent made no specific objection to Petitioner’s motion.” ECF No. 60. 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). 2 The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, a few of the tasks performed by Ms. Lorenz-Pignato are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99- 382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $794.70.4 Regarding the number of hours billed, Ms. Lorenz-Pignato has billed 0.3 hours spent researching vaccine laws in the State of Minnesota. ECF No. 58-2 at 36 (two entries dated 8/12/20). Under the Vaccine Program, reasonable attorneys’ fees and costs are limited to those “incurred in any proceeding on [a] petition.” Section 15(e)(1); see also Krause v. Sec’y of Health & Hum. Servs., No. 01-93V, 2012 WL 4477431, at *6 (Fed. Cl. Spec. Mstr. June 20, 2012). “[R]esearch conducted to explore petitioner's civil remedies . . . are not tasks related to the proceedings on this vaccine claim,” and thus, should not be compensated. Krause, 2012 WL 4477431, at *6. This reduces the amount of fees to be awarded by $124.50.5 3 These entries, drafting basic documents such as an exhibit list, notice of filings, statement of completion, joint notice not to seek review, and election to accept judgment are dated as follows: 7/7/20, 7/8/20 (three entries), 8/31/209/2/20, 9/14/20 (two entries), 9/15/20 (three entries),9/14/20 (two entries), 8/16/21, 3/7/24 (three entries), and 10/31/24. ECF No. 58-2 at 3-4, 25, 30-35, 37. 4 This amount consists of ($415 - $168) x 2.5 hrs. + ($440 - $172) x 0.2 hrs.+ ($506 - $197) x 0.4 hrs. = $794.70. 5 This amount consists of $415 x 0.3 hrs. = $124.50. 3 Moreover, I deem the total amount of time devoted to briefing entitlement and damages, even though separately addressed, to be excessive. See Petitioner’s Motion for Ruling on the Record Regarding Entitlement and Damages, filed June 21, 2023, ECF No. 42; Petitioner’s Reply to Response to Petitioner’s Motion for Ruling on the Record, filed Aug. 1, 2022, ECF No. 33; Petitioner’s Reply in Support of the Motion for Ruling on the Record, filed Sept. 14, 2022, ECF No. 35; Petitioner’s Brief Regarding Damages, filed Jan. 17, 2024, ECF No. 45; Petitioner’s Reply to Respondent’s Damages Brief, filed Mar. 7, 2024, ECF No. 49. Petitioner’s counsel expended approximately 29.0 hours drafting the motion related to entitlement, 12.9 hours drafting the reply related to entitlement, 17.3 hours drafting the damages brief, and 3.7 hours drafting the reply damages brief, for a combined total of 62.96 hours (41.9 hours related to entitlement and 21 hours related to damages). ECF No. 58-2 at 3-7, 13-15, 17-18. My above calculation does not include 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. 58-2 at 5 (entry dated 3/4/24). It is unreasonable for counsel to spend so much time briefing, even the matter of both entitlement and damages addressed separately in this case. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 7 in which attorneys have accomplished this task in about half the time. 8 6 This total is calculated as follows: 41.9 hours billed on 4/20/22, 4/26/22, 7/25/22 (two entries), 7/26/22, 7/27/22, 7/29/22, 8/1/22, 9/8/22 (three entries), 9/13/22, 9/14/22 ( two entries) , by Rhonda Lorenz-Pignato at a rate of $454; 3.5 hours billed on 12/28/23 (two entries), by Rhonda Lorenz-Pignato at a rate of $477; and 17.5 hours billed on 1/15/14 (four entries), 1/16/24 (four entries), 1/17/24, 3/4/24, 3/5/24, and 3/7/24, by Rhonda Lorenz-Pignato at a rate of $506. 7 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). 8 See, e.g., Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Stanton v. Sec’y of Health & Hum. Servs., No. 21-0360V (Nov. 25, 2024) (15.9 and 4.5 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Hirsch v. Sec’y of Health & Hum. Servs., No. 20-1110V (Nov. 25, 2024) (16.0 and 4.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Templin v. Sec’y of Health & Hum. Servs., No. 21-1446V (Nov. 25, 2024) (12.0 and 0.4 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively) Kleinschmidt v. Sec’y of Health & Hum. Servs., No. 20-0680V (Apr. 9, 2024) (13.9 and 4.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Amor v. Sec’y of Health & Hum. Servs., No. 20-0978V (Apr. 10, 2024) (11.9 and 2.7 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); McGraw v. Sec’y of Health & Hum. Servs., No. 21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours 4 Of course, having prevailed in this case, a fees award is generally appropriate. But the Act permits only an award of a reasonable amount of attorney’s fees. Damages Decision, issued Oct. 28, 2024, ECF No. 50. The primary areas of dispute involved pain onset and the appropriate amount of compensation for Petitioner’s past pain and suffering and expenses. Id. at 9-10; see 42 C.F.R. § 100.3(a)(XIV)(B) & (c)(10)(ii) (required pain onset timing). Regarding the pain and suffering award, the parties’ views differed by approximately $40,000.00 - Petitioner sought $80,000.00, and Respondent countered by citing another case involving a $40,000.00 award, noting that he generally proffers $37,500.00 for milder SIRVA cases. Damages Decision at 9-10. I ultimately awarded the same amount awarded in the comparable case cited by Respondent – further underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality (since I ultimately found the higher figure was not adequately defended). Id. at 12-13. Accordingly, I will reduce the sum to be awarded for entitlement damages briefing (a total of 62.9 hours, or $29,547.10) by thirty percent. Such an across-the-board reduction (which I am empowered to adopt) 9 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 reduction of $8,864.13.10 billed for drafting an entitlement and damages brief and responsive entitlement and 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); Bidlack 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 (May 16, 2023) (12.9 and 6.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively). These decisions can (or will) 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 Dec. 6, 2024). 9 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). 10 This amount is calculated as follows: (41.9 hrs. x $454 x .30) + (3.5 hrs. x $477 x .30) + (17.5 hrs. x $506 x .30) = $8,864.13. 5 ATTORNEY COSTS Petitioner requests $704.60 in overall costs and has provided receipts for all expenses. ECF No. 58-3. I have reviewed the requested costs and find them to be reasonable. 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 successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $85,235.27 (representing $84,530.67 for fees and $704.60 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.11 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 6