Emily Smith v. HHS - Hepatitis B, shoulder injury related to vaccine administration (SIRVA) (2024)

Emily Smith, a 21-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on December 28, 2020. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of a hepatitis B vaccine administered on December 27, 2019.

The case was assigned to the Special Processing Unit. The respondent recommended dismissal, arguing that the petitioner could not satisfy the statutory severity requirement, which mandates that the injury, its residual effects, or complications must have persisted for at least six months post-vaccination.

The petitioner was directed to show cause why her case should not be dismissed on these grounds. Petitioner submitted sworn statements and a brief arguing her injury was eligible for the Program.

The Special Master reviewed the medical records and submissions. Upon receiving the vaccine in her left arm on December 27, 2019, Ms.

Smith had no prior left shoulder condition. Thirteen days later, on January 9, 2020, she presented to an orthopedist with left shoulder pain, rating it 7/10, which began after the vaccination.

The orthopedist suspected an inflammatory condition and recommended rest, ice, elevation, and Naproxen. Subsequent appointments showed improvement.

An EMG on February 10, 2020, indicated that her symptoms had begun to improve about two weeks prior, with only mild pain upon certain movements. By February 11, 2020, her pain, range of motion, and strength were improved.

Physical therapy commenced on February 20, 2020, with goals to improve strength and function. By her last formal PT session on March 9, 2020, her pain at rest was 0/10, though she reported some difficulty with specific movements and a maximum pain level of 2-3/10.

Formal PT was cut short due to the COVID-19 pandemic, and she was discharged on March 25, 2020, to continue with home exercises. There was a gap in medical records from March 2020 to January 2021.

On January 26, 2021, an orthopedist conducted a virtual visit, noting that Ms. Smith's pain had resolved with formal physical therapy but returned when she resumed weightlifting.

The Special Master found that the evidence indicated the injury had resolved before the six-month mark post-vaccination. The petitioner's subsequent statements, filed in October 2023, did not provide contemporaneous evidence of an ongoing injury during the critical period and contained some inaccuracies when compared to the medical records.

The Special Master concluded that the petitioner had not established the statutory severity requirement, finding it more likely than not that her condition resolved prior to six months post-vaccination, with subsequent pain likely due to a new injury from weightlifting. Therefore, Ms.

Smith's claim was dismissed. Petitioner was represented by Paul R.

Brazil of Muller Brazil, LLP, and the respondent was represented by Emilie Williams of the U.S. Department of Justice.

The decision was issued by Chief Special Master Brian H. Corcoran.