VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00314
Package ID: USCOURTS-cofc-1_21-vv-00314
Petitioner: Tracey Ervin-Spencer
Filed: 2021-01-08
Decided: 2024-03-29
Vaccine: influenza
Vaccination date: 2019-10-02
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 68200

AI-assisted case summary:
Tracey Ervin-Spencer, a 61-year-old adult, received an influenza vaccine on October 2, 2019. She alleged a Table injury, specifically shoulder injury related to vaccine administration (SIRVA), with onset shortly after her vaccination. The medical records indicated that she experienced new left deltoid pain post-flu shot, with pain scores up to 7/10 with movement. She reported worsening left shoulder pain starting after the flu shot, with reduced range of motion and tenderness. An MRI of her left shoulder showed inflammation and a partial rotator cuff tear. She was diagnosed with impingement syndrome and a rotator cuff tear. Petitioner's declaration stated she felt immediate pain upon injection and thought a nerve was hit, experiencing fever that night and extreme pain the next morning, requiring assistance with daily activities. The respondent contested the onset within 48 hours and whether the pain was limited to the shoulder. However, the Special Master found that the evidence, including later medical records and Petitioner's consistent reporting of onset contemporaneous with the vaccination, supported a finding of onset within 48 hours. The Special Master also found that while some pain radiated, it was consistent with a SIRVA claim where the primary injury was to the shoulder. The case proceeded as a Table claim. The Special Master ruled on entitlement on December 8, 2023, finding Petitioner entitled to compensation. Subsequently, on February 16, 2024, the parties stipulated to an award. The court awarded Tracey Ervin-Spencer a total of $68,200.00, comprising $67,500.00 for pain and suffering and $700.00 for past unreimbursable expenses.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00314-0
Date issued/filed: 2024-01-12
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/08/2023) regarding 29 Ruling on Entitlement, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-314V
TRACEY ERVIN-SPENCER, Chief Special Master Corcoran
Petitioner,
v. Filed: December 8, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLMENT1
On January 8, 2021, Tracey Erwin-Spencer 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 a Table injury - that she suffered a shoulder injury
related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccine on
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 2 of 11
October 2, 2019. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters (the “SPU”).
After a full review of the evidence, I find that Petitioner has satisfied all Table
requirements for a SIRVA Table injury and is otherwise entitled to compensation for her
injury.
I. Relevant Procedural History
On May 13, 2022, Petitioner filed a Motion for a Ruling on the Record (hereinafter
“Motion”), at my invitation after Respondent failed to provide his position in this case for
more than following the claim’s assignment to SPU. ECF No. 23. In her Motion, Petitioner
argues that she has satisfied all requirements under the Vaccine Act and established
entitlement to compensation for a Table SIRVA injury. Id. Respondent reacted to
Petitioner’s Motion (hereinafter “Response”) on July 27, 2022, recommending that
entitlement to compensation be denied under the terms of the Vaccine Act. ECF No. 27.3
Specifically, Respondent argues that the evidence preponderates against a finding that
the onset of Petitioner’s shoulder pain occurred within 48 hours of her vaccination. ECF
No. 27 at 8-9. Additionally (and although this argument is not fully developed),
Respondent appears to assert that Petitioner’s pain is not limited to the shoulder in which
she was vaccinated. Id. at 9.
On August 10, 2022, Petitioner filed a Reply brief addressing Respondent’s
objections to compensation and arguing that she has established a SIRVA Table case.
ECF No. 28. This matter is ripe for my resolution.
II. Authority
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
3 During the interim between the filing of Petitioner’s Motion and Respondent’s Response the parties
engaged in discussions to informally resolve this case. ECF Nos. 22, 25 -26. I offered to stay the briefing
deadlines at the parties’ joint request, if further time to engage in settlement discussions would be fruitful,
but no request was made. Scheduling Order (Non-PDF) filed June 7, 2022.
2

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 3 of 11
of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–
2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
4 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 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 4 of 11
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
III. Relevant Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits, and
the parties’ briefing. I find most relevant the following:
A. Records
• Prior to her vaccination, Petitioner suffered some significant non-contributory
comorbidities, including myelodysplastic syndrome (“MDS”) with sideroblastic
anemia which necessitated frequent blood transfusions, aortic regurgitation, and
common variable immunodeficiency. See generally Ex. 2.
• On October 2, 2019, Petitioner received the flu vaccine in her left deltoid. Ex. 1 at
1.
• On October 21, 2019, Petitioner made a telephone call to her primary care
provider’s (“PCP”) office, the Polyclinic, in regard to an MRI order for brain imaging
that took place later that same day. Ex. 4 at 30; 57-59.
• On October 23, 2019, Petitioner underwent a blood transfusion at Seattle Cancer
Care Alliance (“SCCA”). Ex. 2 at 264.
4

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 5 of 11
• On October 31, 2019, Petitioner was seen by her cardiologist for a follow-up
appointment. Ex. 5 at 43-49.
• On November 14, 2019, Petitioner underwent another blood transfusion at SCCA.
Ex. 2 at 266. A nursing note states that Petitioner reported “new” left deltoid pain
“post flu shot.” Id. Petitioner’s pain score was 2/10, and up to 7/10 with movement.
Id.
• On November 21, 2019, Petitioner was evaluated by hematologist Janice L.
Abkowitz, M.D., at SCCA. Ex. 2 at 397. Dr. Abkowitz’s record memorializes that
Petitioner’s “only complaint in [a] complete review of systems,” except as noted in
her history, was that “after her flu vaccination, she has had some nerve pain in her
left arm. She does not want physical therapy or other intervention for this. Rather
she has been doing stretching and has been placing heat on it at home.” Id.
• On December 3, 2019, Petitioner was seen by her PCP, Dr. Cynthia Smyth, with
a “complain[t] of a 2-month history of worsening left shoulder pain.” Ex. 4 at 33.
Petitioner reported to Dr. Smyth that “[s]he feels as though her symptoms started
after getting a flu shot in the left upper arm. She has been giving it time but her
symptoms have not improved but have worsened.” Id. Petitioner also informed Dr.
Smyth that she “had not had a fall or any trauma to the area,” and that she had a
“mass near her left elbow which [has] gotten bigger which she would like
evaluated,” that she continued to receive blood transfusions every three weeks for
her MDS and that she had not suffered any recent infections. Id.
On exam, Petitioner exhibited reduced range of motion of her left arm, strength in
her left upper extremity of 4/5, and “tenderness over her biceps and supraspinatus
tendon.” Id. at 34. Dr. Smyth also recorded Petitioner had a “2 x 2 centimeter raised
palpable mass” on her left elbow. Id. Dr. Smyth ordered an MRI’s of Petitioner’s
left shoulder and elbow, and referred her to orthopedics. Id.
• On December 9, 2019, Petitioner underwent an MRI of her left shoulder, and the
findings included: an “abnormal low T1 signal throughout the proximal humerus
extending from the head to the metadiaphysis” with “similar changes” in the
acromion and the clavicle; a “[t]race amount of bursal inflammation and fluid;” a
“[q]uestion [of] mild inflammation of the anterior band of the inferior glenohumeral
ligament and thickening of the coracoid humeral ligament;” “[m]inor marrow edema
and cyst formation;” a “partial footprint attachment tear of the far anterior
supraspinatus” that “probably has bursal extension;” an “[a]bnormal signal in the
biceps anchor;” and an “irregularity of the posterosuperior labral contour.” Ex. 4 at
5

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 6 of 11
60. An MRI was also conducted that same day of Petitioner’s left elbow. Id. at 61-
62.
• Petitioner was seen by orthopedist Dr. Daniel G. Schwartz on December 13, 2019.
Ex. 6 at 4. Petitioner reported to Dr. Schwartz that her “symptoms have been
ongoing [since] 10/2/19. She states that there was a flu shot injury – states that
she felt them hit a nerve.” Ex. 6 at 4. Dr. Schwarz diagnosed Petitioner with
impingement syndrome of the left shoulder and a traumatic incomplete tear of the
left rotator cuff. Id. at 3.
• On December 20, 2019, Petitioner began physical therapy. Ex. 3 at 245.
Petitioner’s initial evaluation history records “Date of Injury: date symptoms began:
10/2/19.” Id. The history further provides “61 year old female who present[s] to
therapy with L[eft] sided shoulder pain that resulted after a flu shot was injected
into the subacromial bursa.” Id.
• Subsequently, Petitioner continued to treat with Dr. Schwartz and undergo physical
therapy for her left shoulder pain. In April of 2020, Petitioner reported at a physical
therapy session, that she could not get her “arm up any higher.” Ex. 3 at 180. She
stated that the “inside of the shoulder feels pinching and sharp nerve pain that
goes down the arm and across her chest,” she elaborated that “if she tries to use
the arm too much then she gets radiating pain.” Id. At another physical therapy
session a few days later, she reported that the previous day she had received a
blood transfusion and “from the wrist up into the shoulder was miserable but is
much better today.” Id. at 178.
• After undergoing physical therapy for approximately 17 months, Petitioner was
discharged on May 18, 2021. Ex. 8 at 1. She was described as “90% better with
some ROM loss still and minor pain in bicep but otherwise doing well functionally.”
Id. at 6.
B. Declaration
Petitioner executed a signed and sworn declaration on January 25, 2021
addressing her October 2, 2019 vaccination and alleged shoulder injury. Ex. 7. In regard
to the administration of her vaccination, Petitioner states she received the vaccination at
SCCA on October 2, 2019 following her receipt of a blood transfusion. Id., ¶ 1. Petitioner
recounts that when the vaccine needle was inserted into her left shoulder that her “left
shoulder and [her] left arm flew straight up to the ceiling and fell back down.” Id. She
recalls the “pain I felt was immediate.” Id. The nurse requested that she “relax and
6

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 7 of 11
completed the injection.” Id. She advised the nurse that she thought he “hit a nerve.” Id.
Petitioner states that night she had a fever and called the after-hours line at SCCA to
speak with a nurse – Petitioner was not sure if the fever was due to her vaccination or her
transfusion. Id., ¶ 2. Petitioner reported her arm pain and fever to the nurse and it was
“decided” both were due to her injection as she had a fever the prior year after her
vaccination. Id. The next morning Petitioner states that she could not “move [her] arm
without extreme pain” and required assistance from her husband showering and dressing.
Id.
Petitioner states that her pain persisted, and she required continued assistance
from her husband. Id., ¶ 3. Petitioner avers that she had another blood transfusion on
October 24, 20195 and when asked if she was currently in any pain she reported that her
left arm had “been extremely painful since [her] flu shot.” Id., ¶ 4. Petitioner states that
thereafter she subsequently reported her pain at every blood transfusion visit. Id.
Petitioner provides in her affidavit that after the pain persisted for several weeks,
she began to think it was not normal pain and that she had nerve damage. Id., ¶ 5. She
states that by mid-November after “getting no relief from extreme pain” she scheduled an
appointment with her primary care provider, Dr. Smyth, and that the first appointment
available was in early December. Id. Petitioner states Dr. Smyth thought she had a left
rotator cuff tear and referred her to orthopedics. Id.
Petitioner’s affidavit describes her subsequent treatment, and the limitations that
she suffered in her daily activities due to her shoulder pain.
IV. Findings of Fact
A. Onset
The primary disputed factor in this case is whether Petitioner’s first post-
vaccination symptom or manifestation of onset (specifically pain) of her shoulder injury
occurred within 48 hours of her flu vaccination as set forth in the Vaccine Injury Table and
Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. §
100.3(a)(XIV)(B) (seasonal influenza vaccines); 42 C.F.R. § 100.3(c)(10)(ii) (required
onset for pain listed in the QAI); ECF No. 27 at 8-9. Based upon a review of the entire
record, and for the reasons set forth below, I find that it more likely than not did.
5 This appears to be a typographical error as Petitioner’s blood transfusion occurred on October 23, 2019,
not October 24, 2019. Ex. 2 at 264.
7

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 8 of 11
In this case, as correctly pointed out by Respondent, the records corresponding to
Petitioner’s first several encounters with medical providers following her October 2, 2019
vaccination contain no reference to Petitioner’s shoulder pain at all. These encounters
consist of a phone call on October 21, 2019 to her PCP in regard to an unrelated MRI
scheduled for later that day, Petitioner’s actual MRI imaging visit that same day, an
appointment on October 23, 2019 at SCCA for a blood transfusion, and a cardiology
appointment on October 31, 2019. ECF No. 27 at 8 (citing Ex. 2 at 264; Ex. Ex. 4 at 30,
58; Ex. 5 at 43-49).
Petitioner, however, asserts in her declaration that she called an after-hours line
at SCCA the night she received her vaccination and reported her shoulder pain and a
fever. Ex. 7, ¶ 2. Petitioner also states that she reported her shoulder pain at her October
23, 2019 SCCA appointment for a blood transfusion. Ex. 7, ¶ 4. I cannot conclude per se
that Petitioner reported her shoulder pain to SCCA on the evening of October 2, 2019, or
at her October 23, 2019 appointment. However, as I have observed in other cases, it
would not be uncommon for either a patient to fail to report, or for a provider to fail to
document, symptoms outside the primary purpose of a medical visit – as would be the
case for Petitioner’s medical encounters regarding her October 21, 2019 MRI, October
23, 2019 SCCA blood transfusion, and cardiology appointment on October 31, 2019.
The fact that references to onset are not precise in terms of time or date does not
prevent a favorable finding. As I have previously observed, “the Vaccine Act clearly does
not require that symptoms be recorded within a specific timeframe to be preponderantly
established. Rather, it requires only that onset occurs in the relevant timeframe.” Niemi v.
Sec'y of Health & Hum. Servs., No. 19-1535V, 2021 WL 4146940, at *4 (Fed. Cl. Aug.
10, 2021) (citing Section 13) (emphasis in original). Neither does the Act require that the
medical records document an exact date that the onset of a petitioner’s shoulder pain
began. A special master may thus 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).
In this case, Petitioner’s allegation that her shoulder pain occurred within 48 hours
of her vaccination is supported by many contemporaneous treatment records close-in-
time to her vaccination – even if the medical records most contemporaneous to her
October 2, 2019 vaccination do not. In particular, the records corresponding to Petitioner’s
November 13, 2019 appointment for a blood transfusion at SCCA – which occurred only
42 days after her vaccination (and only a few weeks after her first post-vaccination
medical encounter) - specifically document that Petitioner suffered “new pain” in her left
shoulder “post flu shot.” Ex. 2 at 266.
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Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 9 of 11
Thereafter, Petitioner consistently reported to her providers at numerous
appointments that she experienced the onset of her shoulder pain contemporaneous with
her October 2, 2019 flu vaccination. See, e.g., Ex. 2 at 397 (November 21, 2019 complaint
to Dr. Abkowtiz that “after her flu vaccination, she has had some nerve pain in her left
arm. She does not want physical therapy or other intervention for this. Rather she has
been doing stretching and has been placing heat on it at home.”); Ex. 4 at 33 (December
3, 2019 PCP record a documenting a “complain[t] of a 2-month history of worsening left
shoulder pain” and report that “[s]he feels as though her symptoms started after getting a
flu shot in the left upper arm. She has been giving it time but her symptoms have not
improved but have worsened.”); Ex. 6 at 4 (December 13, 2019 complaint to orthopedist
Dr. Schwartz that her “symptoms have been ongoing [since] 10/2/2019. She states that
there was a flu shot injury – states that she felt them hit a nerve.”); Ex. 3 at 25 (Petitioner’s
initial physical therapy evaluation history states, “Date of Injury: date symptoms began:
10/2/19” and provides “L[eft] sided shoulder pain after a flu shot was injected into the
subacromial bursa.”).
Based on the record as a whole, I find that Petitioner has established the onset of
her injury occurred within 48 hours of her vaccination. Of course, Petitioner’s short delay
in seeking medical treatment specific to her shoulder pain demonstrates that she was
able to tolerate the pain initially and is indicative of a somewhat less severe SIRVA – a
factor I will consider in awarding damages for pain and suffering in this case.
B. Injury Limited to Shoulder
The second disputed issue is whether Petitioner’s “[p]ain and reduced range of
motion are limited to the [left] shoulder in which the intramuscular vaccine was
administered.” 42 C.F.R. § 100.3(c)(10)(iii).
Preliminarily, Respondent has not explicitly contested that Petitioner has failed to
satisfy this SIRVA Table requirement – or any SIRVA Table requirement aside from onset.
Nonetheless, Respondent seemingly calls the third SIRVA QAI factor into question in his
Response. Thus, Respondent has generally maintained that “[P]etitioner’s complaints
indicate that she was also experiencing radiating pain that she described as ‘nerve pain
in her left arm,’ wrist pain, ‘a mass near her left elbow which [had] gotten bigger,’ and her
left shoulder MRI showed a minor marrow edema and cyst formation.” ECF No. 27 at 9
(citing Ex. 2 at 397; Ex. 3 at 178, 180; Pet. Ex. 4 at 33, 60).
Respondent fails to further develop this argument, however. And Petitioner
correctly points out that her “treatment records have consistently confirmed a left shoulder
9

Case 1:21-vv-00314-UNJ Document 32 Filed 01/12/24 Page 10 of 11
injury,” and that after thorough examinations of both her complete left shoulder and arm,
the subsequent assessment of her injury and focus of her treatment was on her left
shoulder. ECF No. 28 7-8 (citing Ex. 3 at 185, 245; Ex. 4 at 33; Ex. 6 at 3, 8). While
Petitioner on several occasions described her left shoulder and arm pain as nerve pain
collectively, and stated when her vaccination was administered that she thought a nerve
had been hit, these appear to be Petitioner’s subjective descriptions of her injury and pain
as a lay person (and there is no evidence in the record that Petitioner suffered any
neurological injury from her vaccination).
Additionally, some of the symptoms and findings cited by Respondent do not
actually appear to be related to Petitioner’s shoulder injury or vaccination, but instead
appear to constitute, or be reflective of, comorbidities – for example her elbow mass (Ex.
4 at 33). To be clear, a petitioner must establish pain and reduced ROM were “limited to
the shoulder in which the intramuscular vaccine was administered” in order to
demonstrate a Table SIRVA. 42 C.F.R. § 100.3(c)(10)(iii). However, this requirement
“does not prevent a petitioner with simultaneous areas of pain due to unrelated conditions
from also meeting the Table SIRVA definition.” Rodgers v. Sec’y of Health & Hum. Servs.,
No. 18-0559V, 2021 WL 4772097, at *8 (Fed. Cl. Spec. Mstr. Sept. 9, 2021).
To the extent that any pain did radiate from Petitioner’s shoulder to other part of
her body, I have previously found that claims involving musculoskeletal pain primarily
occurring in the shoulder are valid under the Table even if there are additional allegations
of pain extending to adjacent parts of the body, since the essence of the claim is that a
vaccine administered to the shoulder primarily caused pain there. Cross v. Sec'y of Health
& Hum. Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr. Jan. 6, 2023).
This reading is consistent with the determinations of other special masters. Grossmann
v. Sec’y of Health & Hum. Servs., No. 18-0013V, 2022 WL 779666, at *15 (Fed. Cl. Spec.
Mstr. Feb. 15, 2022) (explaining that the criterion is intended to “guard against
compensating claims involving patterns of pain or reduced range of motion indicative of
a contributing etiology beyond the confines of a musculoskeletal injury to the affected
shoulder”) (emphasis added). Here, despite some notations of pain extending beyond the
shoulder, Petitioner’s injury is consistent with the definition of SIRVA and there is not
preponderant evidence of another etiology.
V. Other Table Requirements and Entitlement
Petitioner has established all other requirements for a Table SIRVA claim. 42
C.F.R. § 100.3(c)(10). There is no history of shoulder pain, inflammation, or dysfunction
that would explain the post-vaccination injury. 42 C.F.R. § 100.3(c)(10)(i). And there is
not preponderant evidence of another condition that would explain the symptoms. 42
10

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C.F.R. § 100.3(c)(10)(iv).6 However, even if a petitioner has satisfied the requirements of
a Table injury or established causation-in-fact, he or she must also provide preponderant
evidence of the additional requirements of Section 11(c), i.e., receipt of a covered
vaccine, residual effects of injury lasting six months, etc. See generally Section
11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed in this claim. I
therefore find that Petitioner is entitled to compensation in this case.
Conclusion
Based on the entire record, I find that Petitioner has provided preponderant
evidence satisfying all requirements for a Table SIRVA. Petitioner is entitled to
compensation. A Damages Order will issue.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 To the extent that Respondent may have argued that Petitioner suffered any other condition that would
explain her condition/SIRVA, I explicitly find, as discussed above, that Petitioner did not. See supra section
IV B.
11

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00314-1
Date issued/filed: 2024-03-29
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 02/26/2024) regarding 35 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:21-vv-00314-UNJ Document 40 Filed 03/29/24 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-314V
TRACEY ERVIN-SPENCER, Chief Special Master Corcoran
Petitioner, Filed: February 26, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 8, 2021, Tracey Erwin-Spencer 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 a Table injury - that she suffered a shoulder injury
related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccine on
October 2, 2019. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On December 8, 2023, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On February 16, 2024, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $67,500.00 in
pain and suffering, and past unreimbursable expenses in the amount of $700.00. Proffer
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 1:21-vv-00314-UNJ Document 40 Filed 03/29/24 Page 2 of 5
at 1-2.3 In the Proffer, Respondent represented that Petitioner agrees with the proffered
award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as
stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $68,200.00 (representing $67,500.00 for pain and suffering, and
$700.00 past unreimbursable expenses) 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.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Respondent states in his Proffer that while he has “no objection to the amount of the proffered award of
damages,” he reserves the right pursuant to Section 12(f) of the Vaccine Act to seek review of my Ruling
on Entitlement finding Petitioner entitled to compensation. Proffer at 1, fn. 1.
4 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.
2

Case 1:21-vv-00314-UNJ Document 40 Filed 03/29/24 Page 3 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
TRACEY ERVIN-SPENCER, )
)
)
Petitioner, )
) No. 21-314V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On December 8, 2023, Chief Special Master Corcoran issued a Ruling on Entitlement
finding that the preponderance of evidence supported petitioner’s claim she suffered a shoulder
injury related to vaccine administration (“SIRVA”) as a result of her influenza (“Flu”) vaccine
administered on October 2, 2019. ECF No. 29, 32. Respondent now proffers the following
regarding the amount of compensation to be awarded.1
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $67,500.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
1 The parties have no objection to the amount of the proffered award of damages. However,
respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(f), to seek review of the special
master’s December 8, 2023, ruling on entitlement, finding petitioner entitled to an award under
the Vaccine Act. This right accrues following issuance of the damages decision.

Case 1:21-vv-00314-UNJ Document 40 Filed 03/29/24 Page 4 of 5
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $700.00. See 42 U.S.C. § 300aa-
15(a)(4). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through
one lump sum payment as described below and requests that the Chief Special Master’s decision
and the Court’s judgment award the following2: a lump sum payment of $68,200.00, in the form
of a check payable to petitioner.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Tracey Ervin-Spencer: $68,200.00
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future pain and
suffering.
2

Case 1:21-vv-00314-UNJ Document 40 Filed 03/29/24 Page 5 of 5
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Ronalda E. Kosh
RONALDA E. KOSH
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4476
Email: ronalda.kosh@usdoj.gov
DATED: February 16, 2024
3