VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00278
Package ID: USCOURTS-cofc-1_21-vv-00278
Petitioner: Kelly Walker
Filed: 2021-01-07
Decided: 2025-11-10
Vaccine: influenza
Vaccination date: 2019-10-29
Condition: left axillary/radial neuritis and nerve inflammation
Outcome: compensated
Award amount USD: 35000

AI-assisted case summary:
On January 7, 2021, Kelly Walker filed a petition alleging that an influenza vaccine administered in her left arm on October 29, 2019 caused a nerve injury. She was 76 years old. This was not treated as a classic SIRVA damages case; the entitlement ruling focused on left axillary and radial neuritis after vaccination.

Ms. Walker described immediate severe pain at the injection site, crying from the pain, and then pins-and-needles symptoms. By December 2019 she reported sharp pain down the left arm with numbness and tingling. Later primary care and neurology records documented pain, decreased pinprick sensation, and ongoing complaints, although strength and range of motion were often largely intact. Her later medical record also included unrelated hospitalizations and other health problems. She described stress, self-doubt, distrust of medical providers, and disruption from the injury.

Respondent initially opposed entitlement, and the case left the Special Processing Unit for expert development. Chief Special Master Nora Beth Dorsey granted entitlement in a February 24, 2025 bench ruling, finding a sound theory that influenza vaccination can cause nerve inflammation, a logical sequence in Ms. Walker's case, and an appropriate immediate onset. On November 10, 2025, she awarded $35,000.00 for actual pain and suffering, with no additional expenses.

Theory of causation field:
Influenza vaccine October 29, 2019 at age 76 causing left axillary/radial neuritis/nerve inflammation. COMPENSATED. Immediate severe injection-site pain and pins/needles; December 2019 sharp arm pain/numbness/tingling; later decreased pinprick sensation with mostly preserved strength/ROM and limited treatment. Respondent initially contested; expert development followed. CSM Dorsey granted off-Table entitlement February 24, 2025, finding medical theory, logical sequence, and immediate medically acceptable timing. Damages November 10, 2025: $35,000 pain/suffering only. Petition filed January 7, 2021.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00278-0
Date issued/filed: 2025-03-21
Pages: 3
Docket text: PUBLIC RULING (Originally filed: 2/24/2025) regarding 71 Ruling on Entitlement. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:21-vv-00278-UNJ Document 74 Filed 03/21/25 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 24, 2025
* * * * * * * * * * * * * * *
KELLY WALKER, * PUBLISHED
*
Petitioner, * No. 21-278V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Bench Ruling on Entitlement; Influenza
AND HUMAN SERVICES, * (“Flu”) Vaccine; Nerve Injury.
*
Respondent. *
*
* * * * * * * * * * * * * * *
Isaiah Kalinowski, Bosson Legal Group, Fairfax, VA, for Petitioner.
Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 7, 2021, Kelly Walker (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act,” “the Program,” or “the
Act”), 42 U.S.C. § 300aa-10 et seq. (2018).2 Petitioner alleges that she suffered from a Table
shoulder injury related to vaccine administration (“SIRVA”) or nerve injury in her left shoulder
following the administration of an influenza (“flu”) vaccination on October 29, 2019. Amended
(“Am.”) Petition at 1-6 (ECF No. 28).
1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it 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, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1

Case 1:21-vv-00278-UNJ Document 74 Filed 03/21/25 Page 2 of 3
This case was originally assigned to the Special Processing Unit (“SPU”). Activation and
Reassignment Order dated Sept. 12, 2022 (ECF No. 24). Respondent filed his Rule 4(c) report
on January 19, 2024 stating, “this case is not appropriate for compensation under the [Vaccine]
Act.” Respondent’s Report (“Resp. Rept.”) at 1 (ECF No. 46). Thereafter, this case was
removed from SPU and both parties filed expert reports. See Petitioner’s Exhibits (“Pet. Exs.”)
46, 49; Resp. Exs. A, C. In January 2025, the parties indicated they disagreed as to next steps,
with Petitioner objecting to additional expert reports and requesting an entitlement hearing and
Respondent requesting to file additional expert reports3 and to resolve entitlement through a
ruling on the record. Joint Status Rept., filed Jan. 22, 2025 (ECF No. 65).
The undersigned reviewed the medical records and expert reports and found this case did
not warrant the additional litigation requested by the parties and instead found a bench ruling
prudent.4 On February 12, 2025, the undersigned issued an oral ruling on entitlement, finding
Petitioner provided preponderant evidence of all three Althen prongs. See Althen v. Sec’y of
Health & Hum. Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005). An official recording of the
proceeding was taken by a court reporter. The undersigned fully adopts and incorporates that
oral ruling as officially recorded herein.
I. BRIEF SUMMARY OF FINDINGS
The expert reports and medical literature provide ample evidence that Petitioner is
entitled to compensation for a nerve injury following her flu vaccination. See Tr. 4-38.
First, as to diagnosis, the undersigned found Petitioner suffered a left axillary or radial
neuritis nerve injury or inflammation, to which she summarized as a nerve injury. Petitioner did
not meet the Vaccine Table criteria for SIRVA. Tr. 16-17, 33-34.
3 Respondent indicated his objection on the record, in which he maintained his request for
additional expert reports. Transcript (“Tr.”) 3-4. The undersigned found additional expert
reports would only prolong this matter and would not be beneficial or necessary for litigation, as
described in more detail during her oral ruling. Id.
4 The Vaccine Act and Rules encourage special masters to decide petitions on the papers where,
in the exercise of their discretion, they conclude that doing so will properly and fairly resolve the
case. Vaccine Rule 8(d); § 12(d)(2)(D). The decision to rule on the record in lieu of hearing has
been affirmed on appeal. See, e.g., Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d
1362, 1366 (Fed. Cir. 2020); Hovey v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 397, 402-03
(1997) (determining that special master acted within his discretion in denying evidentiary
hearing); Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993); Murphy v.
Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 71500, at *2 (Fed. Cl. Spec. Mstr. Apr.
19, 1991); see also Hooker v. Sec’y of Health & Hum. Servs., No. 02-472V, 2016 WL 3456435,
at *21 n.19 (Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where special masters
decided case on the papers in lieu of hearing and that decision was upheld).
2

Case 1:21-vv-00278-UNJ Document 74 Filed 03/21/25 Page 3 of 3
Next, as to Althen prong one, the undersigned found Petitioner provided preponderant
evidence of a sound and reliable theory as to how the flu vaccine can cause a nerve injury. Tr.
35; see, e.g., Pet. Ex. 46 at 6-8; Court Exhibit A.5
For Althen prong two, the undersigned found Petitioner provided preponderant evidence
of a logical sequence of cause and effect to support how the flu vaccine Petitioner received
caused her nerve injury. Tr. 35-37. The undersigned based her opinions on Petitioner’s medical
records, which showed no prior symptoms or alternative explanation. Id. Further, Petitioner’s
testing and clinical course are consistent with the mechanism presented by Petitioner. Id.
Lastly, the undersigned determined Petitioner’s onset was immediate based on the
medical records and declarations from Petitioner. Tr. 37. Such timing is consistent with
Petitioner’s theory, and thus, Petitioner also presented preponderant evidence to satisfy Althen
prong three. Id.
II. CONCLUSION
Based on the undersigned’s findings, Petitioner provided preponderant evidence to satisfy
all three Althen prongs. Petitioner is therefore entitled to compensation for a nerve injury she
developed following her October 2019 flu vaccination. Tr. 37.
The scope of the undersigned’s Ruling is limited to Petitioner’s nerve injury due to
vaccination. Tr. 37-38. She is not entitled to compensation for any other medical problem she
suffers from, as specified in the Ruling. Tr. 38.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
5 Nat’l Acad. Scis. Eng’g Med., Shoulder Injuries and Vaccines, in Evidence Review of the
Adverse Effects of COVID-19 Vaccination and Intramuscular Vaccine Administration 171, 183-
85 (Anne R. Bass et al. eds., 2024), https://www.ncbi.nlm.nih.gov/books/NBK607378/.
3

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00278-1
Date issued/filed: 2025-12-05
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 11/10/2025) regarding 87 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 10, 2025
* * * * * * * * * * * * * * * * * * * * * * * * *
KELLY WALKER, * PUBLISHED
*
Petitioner, * No. 21-278V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Decision Awarding Damages; Influenza
AND HUMAN SERVICES, * (“Flu”) Vaccine; Nerve Injury; Pain and
* Suffering.
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Isaiah Kalinowski, Bosson Legal Group, Fairfax, VA, for Petitioner.
Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.
DAMAGES DECISION1
On January 7, 2021, Kelly Walker (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2018).2 Petitioner alleged that she suffered from a Table shoulder
injury related to vaccine administration (“SIRVA”) or nerve injury in her left shoulder following
the administration of an influenza (“flu”) vaccination on October 29, 2019. Amended (“Am.”)
Petition at 1-6 (ECF No. 28). On February 24, 2025, the undersigned issued a ruling on
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it 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, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 2 of 15
entitlement, finding Petitioner entitled to compensation for “a left axillary or radial neuritis nerve
injury or inflammation,” also characterized as a “nerve injury,” she developed following her
October 2019 flu vaccination. Ruling on Entitlement dated Feb. 24, 2025 (ECF No. 71).
The parties were unable to resolve damages and requested that the Court enter a schedule
for damages briefs. Since then, the parties’ briefs have been filed.
After consideration of all of the evidence, and for the reasons described below, the
undersigned finds that Petitioner is entitled to $35,000.00 for actual pain and suffering.
I. PROCEDURAL HISTORY
Petitioner filed his petition on January 7, 2021. Petition. The early procedural history
from January 2021 through February 2025 was set forth in the undersigned’s Ruling on
Entitlement and will not be repeated here. See Ruling on Entitlement at 2.
Thereafter, the parties engaged in settlement discussions but were not able to resolve this
matter informally. Joint Status Report (“Rept.”), filed July 2, 2025 (ECF No. 81). The parties
believed ADR would not be productive and requested a briefing schedule. Id. On July 11, 2025,
Petitioner filed a memorandum in support of his claim for damages. Petitioner’s Memorandum
of Law Regarding Damages (“Pet. Memo.”), filed July 11, 2025 (ECF No. 84). Respondent filed
his responsive brief on August 13, 2025. Respondent’s Brief on Damages (“Resp. Br.”), filed
Aug. 13, 2025 (ECF No. 85). Petitioner filed a reply on August 29, 2025. Pet. Reply Memo. of
Law Regarding Damages (“Pet. Reply Memo.”), filed Aug. 29, 2025 (ECF No. 86).
This matter is now ripe for adjudication.
II. FACTUAL HISTORY
A. Brief Medical Record History3
Petitioner received a flu vaccination on October 29, 2019 at her place of work. Pet. Ex. 2
at 2. Nine days later, on November 7, 2019, Petitioner saw her primary care provider (“PCP”)
for gastrointestinal complaints. Pet. Ex. 5 at 35-37. No complaints of left shoulder or arm
symptoms were documented at this visit. See id.
On December 10, 2019, 45 days after vaccination, Petitioner returned to her PCP. Pet.
Ex. 5 at 58. Petitioner reported a “sharp pain down her left arm” when she received her flu
vaccination in October 2019. Id. “[Petitioner] state[d] that it feels like pins and needles and
some numbness since. [Petitioner] has full [range of motion] and has no pain.” Id. Petitioner
further reported her symptoms “mostly affects her while driving long distances.” Id.
Additionally, she stated her symptoms “do[] not [a]ffect the strength of her arm, it is more of an
3 This medical record summary was largely taken from the parties’ damages briefs, with edits
from the undersigned, as the undersigned finds the parties accurately depicted the facts and
circumstances here. See Pet. Memo. at 1-6; Resp. Br. at 2-3.
2

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 3 of 15
annoyance than anything.” Id. On examination, Petitioner had full strength and range of motion.
Id. at 59. Assessment was “[p]ain in left arm.” Id. Her PCP commented, “[Petitioner has] had
pain in her arm, now has numbness and tingling. I imagin[e] that whoever gave her the injection
hit a nerve.” Id. Petitioner was given a referral to neurology even though her PCP indicated
uncertainty regarding the potential for treatment. Id.
On June 1, 2020, Petitioner saw a neurologist for her left arm and primarily complained
of a tingling sensation. Pet. Ex. 5 at 101. History of present illness summarized Petitioner’s
clinical course. Id. Petitioner received a flu vaccination in her left arm on October 29, 2019 and
“instantly had severe pain that caused her to cry.” Id. “The pain was directly at the injection
site.” Id. She then developed a tingling sensation throughout the entire arm, which she felt was
progressively worsening. Id. She also reported difficulty driving and gardening. Id. Petitioner
reported attempting to see a neurologist in January 2020, “but they [did] not accept workers
compensation.” Id. On examination, Petitioner had full strength, full reflexes, no weakness, and
full range of motion in her left arm. Id. at 102. Petitioner had intact sensation except for
decreased pinprick sensation on the left arm and left upper extremity. Id. Assessment was
“[p]aresthesia of the skin.” Id. The neurologist opined Petitioner had “dysesthesias on the left
after a flu shot in October 2019” with “some change in sensation on the affected side.” Id. An
electromyography (“EMG”) of the left upper extremity was recommended. Id.
On June 4, 2020, Petitioner saw a neurologist for an independent medical evaluation.
Pet. Ex. 5 at 107. She reported hypersensitivity and “electric sensations running up and down”
her left arm. Id. Petitioner’s examination was normal except for heightened sensitivity to
pinprick and vibration in her entire left arm. Id. at 108. The neurologist concluded that there
was “no neurological explanation for [Petitioner’s] condition” because “[i]f the injection needle
damages a nerve, it would cause numbness, loss of sensation in the zone of the nerve and not
heightened sensation in the entire left arm.” Id.
On July 6, 2020, Petitioner underwent an EMG/ nerve conduction study (“NCS”). Pet.
Ex. 3 at 1. On examination, Petitioner had intact sensation and normal strength in the left upper
extremity except 4/5 anterior shoulder flexion. Id. The EMG/NCS test was “abnormal.” Id.
The study was “most consistent with left axillary and/or radial neuritis. . . . The etiology of this
injury may have been due to direct trauma to the nerve versus indirect trauma caused by
inflammatory process.” Id. Differential diagnoses included traumatic nerve injury and SIRVA,
and “sympathetically mediate pain such as chronic regional pain syndrome as the patient’s pain
seems out of proportion to the physical findings and pain and dysesthesias have only worsened
since October.” Id. at 1-2.
On August 3, 2020, Petitioner had a telemedicine appointment with her PCP, and she
reported “ongoing tingling sensations/dysesthesia.” Pet. Ex. 5 at 136. Petitioner reported “[s]he
feels it does not interfere with her activities to function[,] but she will occasionally drive with her
right hand in order to avoid this” and she also reported “that at times she will also feel weakness
on the left arm but she resists to not using it as much as she tends to favor her right side.” Id.
Her PCP recommended physical therapy and Petitioner agreed. Id. at 137. Petitioner’s PCP also
3

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 4 of 15
recommended referral to a pain management specialist, to which she declined because she
wishes to try physical therapy first.4 Id.
On November 4, 2020, Petitioner followed up with her neurologist by telemedicine for
her left arm, and she reported continued radiating numbness and tingling in her left arm. Pet. Ex.
36 at 158. This was Petitioner’s last medical visit for her left arm.
Between November 5, 2020 and May 4, 2023, Petitioner received care from her PCP, her
neurologist, functional medicine specialists, gastroenterologists, an emergency room, and an
inpatient hospitalization. See Pet. Ex. 5 at 181, 302-05, 324; Pet. Ex. 8 at 185; Pet. Ex. 11 at 18;
Pet. Ex. 13 at 3-5; Pet. Ex. 35 at 11-12, 51, 157-58; Pet. Ex. 36 at 81-83, 186-88, 211-14; Pet.
Ex. 44 at 39. She saw these providers for metabolic encephalopathy, cognitive difficulties,
unclear speech, altered mental status, dysarthria, episodes of generalized body tingling, paranoia,
elevated ammonia, a rash, back pain, tingling in her right hand and bilateral feet, confusion,
mania, brain fog, feeling intoxicated, stuttering, problems with word formation, paresthesia in
the right hand, anxiety, tinnitus, bartonella infection, vitamin deficiencies, a colonoscopy, and a
laparoscopic surgery. See Pet. Ex. 5 at 181, 302-05, 324; Pet. Ex. 8 at 185; Pet. Ex. 11 at 18;
Pet. Ex. 13 at 3-5; Pet. Ex. 35 at 11-12, 51, 157-58; Pet. Ex. 36 at 81-83, 186-88, 211-14; Pet.
Ex. 44 at 39.
During this period, she complained of left arm symptoms on November 19, 2020
(“constant tingling sensation in her left arm since she received her flu shot about [eight] months
ago”), on February 15, 2021 (“constant numbness in her left hand associated with tingling
sensation since flu shot in 2019”), and on August 4, 2021 (“[o]n and off . . . numbness in her left
arm radiating from the shoulder joint to her fingers . . . since she received the flu vaccine in
2019”) while seeking treatment for other issues. Pet. Ex. 8 at 181; Pet. Ex. 15 at 33; Pet. Ex. 36
at 147. However, all examinations of Petitioner’s left arm from November 5, 2020 to May 4,
2023 were normal. See Pet. Ex. 5 at 227, 253, 287, 293-94, 304, 325, 376; Pet. Ex. 8 at 181,
185; Pet. Ex. 35 at 11-12, 51, 157-58; Pet. Ex. 36 at 81-83, 186-88, 211-14; Pet. Ex. 44 at 39.
B. Petitioner’s Declarations
Petitioner executed three declarations, dated January 5, 2021, June 22, 2023, and
February 10, 2025. Pet. Exs. 1, 41, 50.5 Petitioner avers she had no left shoulder issues prior to
her flu vaccination on October 29, 2019. Pet. Ex. 1 at ¶¶ 3-4.
Immediately following the flu vaccination on October 29, 2019, she developed pain in
her left arm she described as “a burning sensation radiating from the injection[] site down [her]
arm.” Pet. Ex. 41 at ¶ 2; see also Pet. Ex. 1 at ¶ 5; Pet. Ex. 50 at ¶ 2. This “immediate, intense
pain . . . lasted for two or three days, before gradually lessening.” Pet. Ex. 41 at ¶ 4. A few days
4 It does not appear that Petitioner attended physical therapy.
5 A significant portion of her third declaration discusses medical issues that do not relate to her
vaccine injury, and therefore, they are not discussed herein. See Pet. Ex. 50 at ¶¶ 8-19.
4

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 5 of 15
following vaccination, Petitioner began experiencing the constant sensation of “pins and
needles” in her left arm. Pet. Ex. 1 at ¶ 5; Pet. Ex. 41 at ¶ 4; Pet. Ex. 50 at ¶ 2.
Petitioner described the stress and effects of her workers’ compensation claim, which she
avers affected her relationships with co-workers and her mental health, leading to her
questioning herself and her symptoms and causing anxiety. Pet. Ex. 41 at ¶¶ 6-9; Pet. Ex. 50 at
¶¶ 3-6. Following her workers’ compensation action, she reports she now experiences self-doubt
and reluctance in reporting illnesses or pain or seeking treatment due to the fear of not being
believed and a generalized distrust of medical professionals. Pet. Ex. 41 at ¶¶ 12-13.
Regarding her delay in first seeking treatment, Petitioner explains that she had difficulty
finding providers that were approved by workers’ compensation. Pet. Ex. 50 at ¶¶ 3-4.
Three days a week, she would commute to work, which was a one-hour drive each way,
and “sometimes” her arm felt as if it had “fallen asleep.” Pet. Ex. 41 at ¶ 11; see also Pet. Ex. 50
at ¶ 7. Petitioner is no longer working, as of February 2025, which has added to her stress. Pet.
Ex. 50 at ¶ 17.
As of the date of her first declaration, January 5, 2021, she “continue[d] to have
difficulties with activities of daily life due to [her] ongoing left shoulder pain and other health
problems.” Pet. Ex. 1 at ¶ 10.
In her second declaration, executed June 22, 2023, she maintained she was “unable to
enjoy [] activities with [her] family.” Pet. Ex. 41 at ¶ 13. She averred that she continued to
experience “burning, tingling, numbness, and weakness in [her] left shoulder, arm, and hand.”
Id. at ¶ 10. She reported “more occasional pain, tingling, and weakness in [her] arm, especially
after . . . using [her] arm,” pain and tingling when sleeping on her left side, and a “noticeable
strength deficit in [her] left arm.” Id. at ¶¶ 10-11. She further reported “no longer [being] able
to work in [her] garden, pick up and hug the children in [her] family, or drive for any extended
length of time.” Id. at ¶ 11; see also Pet. Ex. 50 at ¶ 7.
As of February 10, 2025, the date on which she executed her third declaration,
Petitioner’s “left arm [was] better, but . . . not 100 percent.” Pet. Ex. 50 at ¶ 20. She still had
“some lingering weakness” in her left hand and persistent “pins and needles,” but the pins and
needles sensation no longer caused her pain or kept her awake at night. Id.
III. PARTIES’ CONTENTIONS
A. Pain and Suffering
1. Petitioner’s Contentions
Petitioner requests a pain and suffering award of $70,000.00. Pet. Memo. at 20; Pet.
Reply Memo. at 10. Petitioner contends her medical records and declarations support this pain
and suffering award, despite the fact that “Petitioner’s own account of her pain and suffering and
especially her emotional distress[] [] did not often make it into [] notes or . . . records.” Pet.
5

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 6 of 15
Memo. at 13-14 (citing Pet. Ex. 3 at 1-2; Pet. Ex. 5 at 58-60, 98-101, 115, 130, 137, 153, 293,
341, 422, 446; Pet. Ex. 6 at 6-7, 9-10; Pet. Ex. 36 at 155-58; Pet. Ex. 41; Pet. Ex. 50).
Petitioner contends her symptoms were “severe and persistent.” Pet. Reply Memo. at 2.
Immediately after vaccination on October 29, 2019, Petitioner experienced pain that was “so
severe that her supervisor noted her ‘excruciating pain immediately following her flu shot,’ as
well as a persistent ‘numbness in her arm.’” Id. (quoting Pet. Ex. 17 at 336). Her co-workers
noted Petitioner’s pain was so severe that she “went into her office and cried.” Id. (quoting Pet.
Ex. 17 at 321; Pet. Ex. 6 at 6). On December 10, 2019, Petitioner’s treating physician
documented Petitioner’s reports of “sharp pain down her left arm” and “pins and needles”
sensations since her flu vaccination. Pet. Reply Memo. at 2 (quoting Pet. Ex. 5 at 58, 84). Eight
months post-vaccination, Petitioner had difficulty sleeping on her left side due to pain. Id.
(citing Pet. Ex. 5 at 107-08). And more than three years after vaccination, Petitioner “continued
experiencing persistent pain, weakness, burning, tingling, and numbness in her arm, which hurt
her ability to perform household tasks, drive a vehicle, work in her garden, or play with her
grandchildren.” Id. (citing Pet. Ex. 41 at ¶ 11).
Regarding Petitioner’s delay in seeking treatment or Petitioner’s decision to not seek
certain specialized treatment, Petitioner contends her workers’ compensation action complicated
these efforts. Pet. Reply Memo. at 3. Because of her workers’ compensation action, Petitioner
could only see certain providers and had difficulty finding and making appointments with
approved providers. Id. Additionally, Petitioner contends her workers’ compensation “refused
to cover” physical therapy. Pet. Memo. at 16. Thus, Petitioner argues her delay in seeking
treatment or seeking certain specialized treatment “does not minimize the severity of her injury.”
Pet. Reply Memo. at 3-4.
Petitioner acknowledges that the Court, in determining an appropriate pain and suffering
award, looks to a Petitioner’s pursuit of medical care to aid in determination of the severity of the
injury “over and against other evidence in the record which demonstrates limitations imposed by
an injury.” Pet. Memo. at 13. Here, however, Petitioner argues that “because Petitioner suffered
a direct nerve injury and not a SIRVA, basing damages valuations on how many physical therapy
or medical appointments she attended would not provide an accurate calculation of the damages
she suffered from her nerve injury.” Id. at 14; see also Pet. Reply Memo. at 4. Petitioner adds
that treatment for SIRVA injuries is different than for nerve injuries; “Nerve injuries often
include numbness, tingling, and burning sensations that reduce a petitioner’s functionality in
ways that typical SIRVA injuries do not.” Pet. Reply Memo. at 4. Therefore, Petitioner contends
“the severity of [her] nerve injury cannot be quantitatively measured by the number of physical
therapy appointments that Petitioner attended.” Id.
Petitioner also argues she suffered “significant emotional distress from her vaccine
injury,” and that Respondent did not factor this into damages. Pet. Reply Memo. at 4; see also
Pet. Memo. at 17-18. This emotional distress includes “being accused of manufacturing her
documented pain and discomfort for attention by the medical providers associated with her
worker’s compensation claim.” Pet. Reply Memo. at 4; see also Pet. Memo. at 17-18. And
“[t]hese false accusations and dismissive responses by workers’ compensation administrators led
to further delays in Petitioner’s treatment of her nerve injury caused by the vaccine, which
6

Case 1:21-vv-00278-UNJ Document 96 Filed 12/05/25 Page 7 of 15
prolonged her pain and significantly increased her emotional distress.” Pet. Reply Memo. at 4-5;
see also Pet. Memo. at 17-18.
Next, Petitioner discusses prior Vaccine Program cases to support her request for
$70,000.00 in pain and suffering. Pet. Memo. at 14-20; Pet. Reply Memo. at 5-10. Petitioner
agrees with Respondent that there are no reasoned damages decisions for direct nerve injuries.
Pet. Reply Memo. at 5. “Petitioner [also] agrees that decisions adopting proffers and settlements
are not controlling authority and are less persuasive than a fully reasoned damages decision.” Id.
at 6. However, Petitioner argues proffers and stipulations are helpful reference points here
“given the absence of reasoned damages decisions regarding direct nerve injuries.” Id.
Petitioner first discusses Kirby, a case of a direct nerve injury from vaccination. Pet.
Memo. at 14 (citing Kirby v. Sec’y of Health & Hum. Servs., No. 16-185V, 2019 WL 6336026
(Fed. Cl. Spec. Mstr. Nov. 1, 2019), rev’d, 148 Fed. Cl. 530 (2020), rev’d, 997 F.3d 1378 (Fed.
Cir. 2021)). In Kirby, the petitioner was found entitled to compensation and the proffered award
was $25,000.00. Id. at 15; see Kirby v. Sec’y of Health & Hum. Servs., No. 16-185V, 2019 WL
7667645 (Fed. Cl. Spec. Mstr. Dec. 30, 2019). Petitioner here argues this amount should be
distinguished from her case “because the severity and duration of the nerve injury” here and in
Kirby differ. Pet. Memo. at 14-15. Petitioner maintains her injury was “far more severe” than
the Kirby petitioner’s injury. Id. at 15. The petitioner in Kirby described her pain as a 2/10 one
month post-vaccination, her EMG testing was negative and showed 5/5 strength, and two months
post-vaccination she was discharged from physical therapy with full strength and 0/10 pain. Id.
Two years post-vaccination, the Kirby petitioner reported recurring pain that she and her
provider documented as mild. Id.
In contrast, Petitioner here argues her immediate pain was “so severe” and
“excruciating,” unlike the Kirby petitioner’s “mild” pain. Pet. Memo. at 15. Petitioner here
developed persistent tingling and numbness, which has continued for years, while Petitioner
contends the Kirby petitioner’s injury “subsided within a few months.” Id. at 16, 18. But see
Kirby, 997 F.3d at 1381-82 (citing medical records documenting the petitioner’s reports of
intermittent pain two years post-vaccination). Although Petitioner did not attend physical
therapy like the petitioner in Kirby, Petitioner argues her severity was more severe due to her
workers’ compensation claim, including the difficulty in finding providers her workers’
compensation approved of and the negative treatment she received when pursuing her workers’
compensation claim. Pet. Memo. at 16-18.
Petitioner next addressed Respondent’s reliance on Anderson and Perez, two nerve injury
cases that resolved via stipulation, during the parties’ informal settlement discussions. Pet.
Memo. at 18-19 (citing Anderson v. Sec’y of Health & Hum. Servs., No. 16-1099V, 2020 WL
974170, at *1 (Fed. Cl. Spec. Mstr. Jan. 23, 2020) ($15,000.00 settlement for an ulnar nerve
injury); Perez v. Sec’y of Health & Hum. Servs., No. 21-998V, 2023 WL 7181644, at *1 (Fed.
Cl. Spec. Mstr. Aug. 28, 2023) ($30,000.00 settlement for left radial nerve palsy). Petitioner
stresses there is a lack of information available for these cases, including the reasoning for these
settlement amounts, and thus, less weight should be given to them. Id.; Pet. Reply Memo. at 5.
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Petitioner argues her case is most analogous to Dore, a SIRVA case resolved via
stipulation. Pet. Memo. at 19-20; Pet. Reply. Memo. at 6; see Dore v. Sec’y of Health & Hum.
Servs., No. 17-2012V, 2019 WL 7557796, at *1 (Fed. Cl. Spec. Mstr. Dec. 9, 2019) (settling for
$80,000.00). However, the facts and circumstances in Dore, like other settled matters, are also
not public.6 Petitioner’s counsel reasons that the facts in Dore were closely analogous to the
facts here, and thus Dore is “a viable reference point of comparison.” Pet. Reply Memo. at 6.
“Petitioner [does] not claim that Dore [is] controlling authority in this case, but rather a helpful
comparison point for a similar nerve injury to Petitioner’s injury.” Id. Petitioner does not
address the fact that the injury in Dore is a SIRVA, not a nerve injury.
Lastly, Petitioner addresses Respondent’s reliance on Hiatt and Turnquest in
Respondent’s brief on damages. Pet. Reply Memo. at 6-8 (citing Hiatt v. Sec’y of Health &
Hum. Servs., No. 23-1560V, 2025 WL 1542314 (Fed. Cl. Spec. Mstr. May 13, 2025); Turnquest
v. Sec’y of Health & Hum. Servs., No. 21-0065V, 2024 WL 3665961 (Fed. Cl. Spec. Mstr. July
2, 2024)). Petitioner first argues these cases are not analogous to Petitioner’s case because they
are mild SIRVA cases, not severe nerve injury cases, and therefore “the damages valuations in
those cases are inapposite to Petitioner’s damages.” Id. at 6-7.
Petitioner then discusses the factual differences between Petitioner’s case and the
petitioners in Hiatt and Turnquest. Pet. Reply Memo. at 6-8. The petitioner in Hiatt was a 76-
year-old retiree who suffered a mild SIRVA. Id. at 6 (citing Hiatt, 2025 WL 1542314, at *1, *8-
10). She first reported her symptoms four months after vaccination and agreed her left shoulder
pain was “mild to moderate.” Id. at 6-7 (citing Hiatt, 2025 WL 1542314, at *8-10). The Court
in Hiatt awarded $25,000.00 in damages to the petitioner for her mild SIRVA injury that lasted
eight months and required limited treatment. Id. at 7 (citing Hiatt, 2025 WL 1542314, at *10).
And the Turnquest petitioner had a treatment course consisting of three orthopedic visits, one x-
ray, one MRI, and two substantial gaps in treatment. Id. (citing Turnquest, 2024 WL 3665961, at
*5-7). The Turnquest petitioner was awarded $30,000.00. Turnquest, 2024 WL 3665961, at *6-
7.
Unlike the petitioners in Hiatt and Turnquest, Petitioner contends she never described her
symptoms as mild and her symptoms have persisted for years. Pet. Reply. Memo. at 7-8.
Furthermore, as noted by the Court in Hiatt, “medical professionals tend to self-treat their
shoulder injuries, delaying formal medical treatment.” Id. at 8 (quoting Hiatt, 2025 WL
1542314, at *6). Thus, Petitioner contends her role as a nurse and medical professional should
be taken into consideration when evaluating her delay in seeking treatment.7 Id.
6 Petitioner’s counsel filed the amended petition in Dore, a case in which he was also the attorney
of record. However, that petitioner’s medical information is not public. Therefore, the
undersigned will not discuss on Petitioner’s counsel’s recitations of the facts of that case as this
information in Dore is sealed.
7 Petitioner “was employed as an Associate Kidney Care Advocate for Watertown Dialysis
Center when she received the vaccination.” Am. Petition at ¶ 3; see also Pet. Ex. 17 at 3.
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Petitioner maintains she is entitled to an award for no less than $70,000.00 for her direct
nerve injury following flu vaccination. Pet. Reply Memo. at 10.
2. Respondent’s Contentions
Respondent argues that based on the facts of this case, Petitioner should be awarded
$30,000.00 for pain and suffering. Resp. Br. at 1, 5-7. First, Respondent does not dispute
awareness of injury. See id. at 1-7.
Respondent contends “Petitioner suffered a relatively mild nerve injury in her left arm.”
Resp. Br. at 5. For support, Respondent notes Petitioner reported initial sharp pain during her
vaccination, but subsequently, her records document reported symptoms that were “limited and
primarily sensory, including numbness and tingling.” Id. (citing Pet. Ex. 5 at 98, 101, 137).
Additionally, Respondent contends that “nearly all full-strength neurologic exams, lack of any
prescription or over-the-counter medications for pain, and [Petitioner’s] choice not to pursue
physical therapy or pain management care” are further evidence of the “mild and sensory nature
of her injury.” Id. (citing Pet. Ex. 3 at 1; Pet. Ex. 5 at 99, 101-02, 108, 227). Thus,
“[P]etitioner’s treatment was limited to office visits in which she was evaluated by her PCP and
specialists, but no treatment visits.” Id. (citing, e.g., Pet. Ex. 3 at 1; Pet. Ex. 5 at 41, 98, 101,
108, 137).
With regard to Petitioner’s reliance on Anderson and Perez, Respondent notes these cases
were discussed during the parties’ informal damages negotiations and argues it is “wholly
inappropriate to disclose counsels’ discussions of informal resolution of damages.” Resp. Br. at
5. Both cases were resolved via settlement and Petitioner’s counsel was not the attorney of
record. Id. at 5-6. Respondent asserts counsel is not permitted to discuss the details of these
cases “beyond their basic existence.” Id. at 6. Thus, they provide “very little information” to the
Court in the present case. Id.
Similarly, Respondent disagrees with Petitioner’s reliance on Dore. Resp. Br. at 6.
Respondent maintains “[a] settlement between parties should not be equated to a reasoned
decision by the Court, and because the facts of Dore are not publicly available, the Court would
have difficulty making comparisons in a public decision.” Id.
Respondent notes he could not find a reasoned damages decision for a similar injury and
finds reliance on reasoned damages decisions for musculoskeletal shoulder injuries in Hiatt and
Turnquest helpful. Resp. Br. at 6 (citing Hiatt, 2025 WL 1542315; Turnquest, 2024 WL
3665961). Respondent explains the petitioners in Hiatt and Turnquest had an initial delay in
treatment, similar to Petitioner here. Id. (citing Hiatt, 2025 WL 1542314, at *1-2; Turnquest,
2024 WL 3665961, at *4). The petitioner in Turnquest saw orthopedists for issues other than his
shoulder, and the petitioner in Hiatt completed eight physical therapy sessions and received a
steroid injection. Id. at 6-7 (citing Hiatt, 2025 WL 1542314, at *3; Turnquest, 2024 WL
3665961, at *6). Here, Petitioner “did not take medication or undergo any treatment for her
injury.” Id. at 7. Thus, Respondent contends Petitioner’s pain and suffering award should be
like those in Hiatt ($25,000.00) and Turnquest ($30,000.00). Id. at 6-7.
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Respondent concludes Petitioner failed to show a pain and suffering award of $70,000.00
is supported by the facts of her case or comparable cases. Resp. Br. at 7. Respondent maintains
a pain and suffering award of $30,000.00 is reasonable, fair, and appropriate. Id.
IV. LEGAL FRAMEWORK
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.” § 15(a)(4). Petitioner bears the burden of proof with respect to each
element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V,
1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no formula for assigning a monetary value to a person’s pain and suffering and
emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at
*9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently subjective
and cannot be determined by using a mathematical formula.”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996)
(“[T]he assessment of pain and suffering is inherently a subjective evaluation.”). Factors to be
considered when determining an award for pain and suffering include: (i) awareness of the
injury; (ii) severity of the injury; and (iii) duration of the suffering. I.D., 2013 WL 2448125, at
*9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated & remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
The undersigned may look to prior pain and suffering awards to aid in the resolution of
the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing
improper in the chief special master’s decision to refer to damages for pain and suffering
awarded in other cases as an aid in determining the proper amount of damages in this case”).
The undersigned may also rely on her experience adjudicating similar claims. Hodges v. Sec’y
of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated
the special masters would use their accumulated expertise in the field of vaccine injuries to judge
the merits of individual claims). Importantly, however, it must also be stressed that pain and
suffering is not determined based on a continuum. See Graves v. Sec’y of Health & Hum.
Servs., 109 Fed. Cl. 579 (2013).
In Graves, Judge Merow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merow noted that this constituted “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 589-90. Instead, Judge
Merow assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine
Program. Id. at 595.
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V. ANALYSIS
A. Petitioner’s Award for Actual Pain and Suffering
In determining an award in this case, the undersigned does not rely on a single decision
or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case,
giving due consideration to the circumstances and damages in other cases cited by the parties and
other relevant cases, as well as her knowledge and experience adjudicating similar cases. The
undersigned has reviewed the entire record, including medical records, declarations, expert
reports, and all other evidence that has been filed, and finds an award of $35,000.00 in actual
pain and suffering is fair, reasonable, and appropriate here.
It is appropriate to consider the severity of the injury, awareness of the injury, and
duration of the suffering when determining an award for pain and suffering and emotional
distress. In this case, neither party has raised, nor is the undersigned aware of, any issue
concerning Petitioner’s awareness of suffering. Thus, based on the circumstances of this case,
the undersigned determines Petitioner’s awareness of the injury is not in dispute and she has full
awareness of her suffering.
The factors that particularly influence this Decision are as follows. Regarding duration,
the undersigned finds Petitioner suffered from her injury for just less than two years, from
October 29, 2019 to August 4, 2021. Petitioner’s last medical visit for her left arm was on
November 4, 2020, one year post-vaccination. Thereafter, while at visits for other medical
issues, Petitioner complained of her left arm symptoms on November 19, 2020, February 15,
2021, and August 4, 2021. No medical records past August 4, 2021 document any reports of left
arm symptoms.
Petitioner executed two declarations after August 2021, dated June 22, 2023 and
February 10, 2025, attesting to the fact that she still had left arm symptoms that affect her
activities of daily living. However, the undersigned is not persuaded by these statements in these
declarations for two reasons.
First, these declarations were executed after litigation was initiated and years after
Petitioner last visited a provider for her symptoms or discussed her symptoms with a provider.
See, e.g., Zumwalt v. Sec’y of Health & Hum. Servs., No. 16-994V, 2019 WL 1953739, at *19
(Fed. Cl. Spec. Mstr. Mar. 21, 2019) (rejecting opinion from a treating provider when he
presented an opinion two-and-one-half years after treatment and after litigation was initiated),
mot. for rev. den’d, 146 Fed. Cl. 525 (2019).
Second, the declarations are not consistent with Petitioner’s statements in the medical
records, and therefore, the undersigned finds more weight should be given to the
contemporaneous statements in her medical records. See Vergara ex rel. J.A.V. v. Sec’y of
Health & Hum. Servs., No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. Spec. Mstr. May 15,
2014) (“Special Masters frequently accord more weight to contemporaneously-recorded medical
symptoms than those recorded in later medical histories, affidavits, or trial testimony.”);
Campbell ex rel. Campbell v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“It is,
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of course, true that where later testimony conflicts with earlier contemporaneous documents,
courts generally give the contemporaneous documentation more weight.”).
Specifically, in her second declaration, executed in June 2023, Petitioner reported
“occasional pain, tingling, and weakness in [her] arm, especially after . . . using [her] arm,” pain
and tingling when sleeping on her left side, a “noticeable strength deficit in [her] left arm,” and
“no longer [being] able to work in [her] garden, pick up and hug the children in [her] family, or
drive for any extended length of time.” Pet. Ex. 41 at ¶¶ 10-11. And in her third declaration,
dated February 10, 2025, she reported “some lingering weakness” in her left hand and persistent
“pins and needles.” Pet. Ex. 50 at ¶ 20. However, her medical records fail to record any
continued symptoms past August 2021.
The undersigned acknowledges that the presumption that “medical records are accurate
and complete as to all the patient’s physical conditions” has been rejected. Kirby v. Sec’y of
Health & Hum. Servs., 997 F.3d 1378, 1382 (Fed. Cir. 2021). And that “the absence of a
reference to a condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.” Shapiro v. Sec’y of Health & Hum. Servs., 101
Fed. Cl. 532, 538 (2011). However, the undersigned finds it compelling that Petitioner has not
sought treatment for her injury since November 2020 nor has she reported her symptoms since
August 2021. Further, Petitioner’s medical records dating back to the onset of her injury did not
document weakness or strength deficits on examinations.
Regarding severity, the undersigned find Petitioner had a mild to moderate injury.
Petitioner had severe pain for a few days that dissipated and turned to “pins and needles,”
tingling, and numbness in her left arm. Petitioner saw providers for her left arm symptoms until
November 4, 2020, one year post-vaccination. And after November 4, she reported her left arm
symptoms three times, at visits for other medical issues, the last of which was on August 4, 2021.
To summarize, on December 10, 2019, 45 days post-vaccination, Petitioner first
complained of her left arm symptoms to a provider. At this visit, she reported a “sharp pain
down her left arm” when she received her flu vaccination in October 2019. Pet. Ex. 5 at 58.
Petitioner reported she no longer had pain but felt “pins and needles and some numbness.” Id.
She also reported her symptoms “do[] not [a]ffect the strength of her arm” and were “more of an
annoyance than anything.” Id. Examination of her left arm was normal. She had full strength
and range of motion. Assessment was “[p]ain in left arm.” Id.
At her next visit on June 1, 2020, she saw a neurologist. She reiterated she developed
instant severe pain at the time of vaccination “that caused her to cry,” following by a tingling
sensation. Pet. Ex. 5 at 101. Examination revealed full strength, full reflexes, no weakness, and
full range of motion. Sensory examination revealed decreased pinprick sensation on the left arm
and left upper extremity. Assessment was “[p]aresthesia of the skin.” Id. at 102. Petitioner’s
“change in sensation” in her left arm was noted. Id.
On August 3, 2020, Petitioner reported “ongoing tingling sensations/dysesthesia” to her
PCP but explained that “[s]he fe[lt] it does not interfere with her activities to function[,] but she
will occasionally drive with her right hand in order to avoid this” and “that at times she will also
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feel weakness on the left arm but she resists to not using it as much as she tends to favor her right
side.” Pet. Ex. 5 at 136.
Overall, Petitioner’s medical records demonstrate she developed initial pain that was
severe and immediate and lasted for a few days. This is also consistent with her declaration, in
which she averred she developed an immediate “burning sensation radiating from the injection[]
site down [her] arm” and “[t]his “immediate, intense pain . . . lasted for two or three days, before
gradually lessening.” Pet. Ex. 41 at ¶¶ 2, 4. She then developed numbness and tingling, or “pins
and needles” shortly thereafter. At all times, her physical examinations were normal, depicting
full strength and range of motion and no weakness, except for a decreased pinprick sensation on
the left arm and left upper extremity in June 2020.
Her medical records and declarations conflict as to the effect of her injury. For example,
in her second declaration executed in June 2023, Petitioner reported she was “unable to enjoy []
activities with [her] family.” Pet. Ex. 41 at ¶ 13. She reported she could not “work in [her]
garden, pick up and hug the children in [her] family, or drive for any extended length of time.”
Id. at ¶ 11. However, her medical records in 2019 and 2020 document Petitioner’s reports that
her symptoms “[did] not interfere with her activities to function” and were “more of an
annoyance than anything.” Pet. Ex. 5 at 58, 136. And as mentioned above, her declaration also
reports “occasional pain, tingling, and weakness in [her] arm” and a “noticeable strength deficit
in [her] left arm,” which is not supported by the medical records as all physical examinations
documented full strength and no weakness. Pet. Ex. 41 at ¶¶ at 10-11. Therefore, for the reasons
described above, the undersigned finds Petitioner’s statements in her contemporaneous medical
records more persuasive.
Petitioner contends her stress and anxiety that resulted from her workers’ compensation
claim should be taken into account here. The undersigned factors Petitioner’s stress into the
award here.
Lastly, the undersigned does not find a treatment gap here to be persuasive evidence
arguing against the severity of her injury. Petitioner adequately described her difficulty in
making appointments. Additionally, the Covid-19 pandemic added additional difficultly in
seeking treatment. And, in the undersigned’s experience, individuals who work in the medical
field typical delay seeking treatment.
The undersigned has considered prior pain and suffering awards in the parties’ cases to
assist in her determination of an appropriate award. Because there are no reasoned damages
decisions for nerve injuries, the parties discussed stipulated or proffered matters as well as cases
involving a SIRVA injury.
As to the stipulated and proffered cases mentioned by the parties, the undersigned finds
the settled amounts informative. See Kirby, 2019 WL 7667645 (proffered award of $25,000.00
for a direct nerve injury); Anderson, 2020 WL 974170 ($15,000.00 settlement for an ulnar nerve
injury); Perez, 2023 WL 7181644 ($30,000.00 settlement for left radial nerve palsy); Dore, 2019
WL 7557796 ($80,000.00 settlement for SIRVA); Hiatt, 2025 WL 1542315 (awarding
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$25,000.00 in a SIRVA); Turnquest, 2024 WL 3665961 (awarding $30,000.00 in a SIRVA). Of
these cases, Kirby is the only nerve injury case with publicly available facts.
Petitioner contended her case is most analogous to Dore; however, Dore was a SIRVA
case and the facts and circumstance to support that stipulated award are sealed. Further,
Petitioner argued that “because Petitioner suffered a direct nerve injury and not a SIRVA, basing
damages valuations on how many physical therapy or medical appointments she attended would
not provide an accurate calculation of the damages she suffered from her nerve injury.” Pet.
Memo. at 14; see also Pet. Reply Memo. at 4. Petitioner maintained treatment for SIRVA
injuries is different than for nerve injuries, as “[n]erve injuries often include numbness, tingling,
and burning sensations that reduce a petitioner’s functionality in ways that typical SIRVA
injuries do not.” Pet. Reply Memo. at 4. Petitioner failed to properly8 explain how her nerve
injury case was analogous to the Dore SIRVA matter, and why this SIRVA case should provide
an accurate calculation of her damages as compared to the other SIRVA cases discussed by the
parties.
The undersigned finds the most analogous case is Kirby, as that case was as a nerve
injury and the facts and circumstances of that case are public. The petitioner in Kirby first
sought treatment one week post-vaccination, for “persistent arm pain, numbness, and tingling
that began immediately after the [flu vaccine].” Kirby, 997 F.3d at 1379. Here, Petitioner
reported similar symptoms but did not see a provider for these symptoms until 45 days post-
vaccination. The petitioner in Kirby described her initial pain as moderate, while Petitioner has
described her initial pain as “severe” and “intense.” Id. Both the Kirby petitioner and Petitioner
here complained of weakness and reduced strength. Id. Less than two months post-vaccination,
the Kirby petitioner reported less pain, describing it as “mild and intermittent,” improved
strength, and continued numbness. Id. at 1380. Similarly, Petitioner, 45 days post-vaccination,
reported she no longer had pain but had “pins and needles and some numbness.” Pet. Ex. 5 at
58. Both the Kirby petitioner and Petitioner here underwent EMGs, despite their differing
results. Kirby, 997 F.3d at 1380. Unlike Petitioner here, the Kirby petitioner attended physical
therapy in-person for one month and continued with at-home exercises. Id. And both the Kirby
petitioner and Petitioner here visited other providers, for different medical issues, that did not
document any arm symptoms. Id. The Kirby petitioner last complained of “mild and
intermittent pain in her right arm” two years post-vaccination, although she maintained no
limitations due to pain and no muscle weakness. Id. Similarly, Petitioner here last complained
of her symptoms (“[o]n and off . . . numbness in her left arm radiating from the shoulder joint to
her fingers . . . since she received the flu vaccine in 2019”) to a provider less than two years post-
vaccination but maintains continued limitations due to her arm. Pet. Ex. 15 at 33. Lastly,
Petitioner here underwent emotional distress.
The undersigned has considered the numbers proposed by both parties, however, she does
not agree that the amount suggested by either party is appropriate.
8 Again, the undersigned finds it improper to discuss the facts of Dore, as the facts, medical
records, and other evidence in Dore are sealed and not available to the public.
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Considering the record as a whole, the undersigned finds that $35,000.00 represents a
fair, reasonable, and appropriate amount of compensation for Petitioner’s pain and suffering and
emotional distress. The undersigned recognizes Petitioner’s duration and severity of suffering.
Petitioner did not require specialized treatment for her injury. She did not attend physical
therapy or go to a pain management specialist. She saw treating providers for her injury for one
year. Although Petitioner described various other stressors and health issues since her
vaccination, those do not relate to her vaccine injury. Thus, the undersigned finds Petitioner’s
overall course to be mild to moderate similar to that experienced by the Kirby petitioner,
although Petitioner here had initial pain that was severe and intense. The award of $35,000.00
acknowledges that Petitioner experienced the difficulties described and acknowledges the effects
it has on Petitioner’s ability to enjoy certain activities and emotional distress.
VI. CONCLUSION
In determining an award in this case, the undersigned does not rely on a single decision
or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case,
giving due consideration to the circumstances and damages in other cases cited by the parties and
other relevant cases, as well as her knowledge and experience adjudicating similar cases.
In light of the above analysis, and in consideration of the record as a whole, the
undersigned awards Petitioner:
A lump sum payment of $35,000.00 for actual pain and suffering, to be paid
through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt
disbursement to Petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.9
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
9 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
15