VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00394
Package ID: USCOURTS-cofc-1_21-vv-00394
Petitioner: Evelyn Valdez
Filed: 2021-01-08
Decided: 2024-04-09
Vaccine: influenza
Vaccination date: 2019-10-04
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 35000

AI-assisted case summary:
Evelyn Valdez filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on October 4, 2019. She stated that within ten minutes of receiving the vaccine, she felt severe pain in her left shoulder that persisted. Medical records from December 2019 and May 2020 documented her ongoing left arm and shoulder pain, which was assessed as likely due to tendinitis from the vaccine injection. Respondent argued that her claim was not supported by the medical records, citing a lack of immediate treatment and pain radiating beyond the shoulder. However, the Chief Special Master found that Petitioner was entitled to compensation, determining that her injury met the criteria for a Table SIRVA. The decision noted that while pain radiated to her upper arm and forearm, it was primarily localized to the shoulder, and there was no history of prior injury or other condition to explain the symptoms. The court awarded Evelyn Valdez $35,000.00 for actual pain and suffering, finding her injury to be on the milder end in terms of duration and treatment, with her last formal medical care occurring seven months after vaccination.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00394-0
Date issued/filed: 2024-04-09
Pages: 14
Docket text: PUBLIC DECISION (Originally filed: 02/28/2024) regarding 38 Ruling on Entitlement,, DECISION of Special Master,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00394-UNJ Document 47 Filed 04/09/24 Page 1 of 14
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0394V
EVELYN VALDEZ, Chief Special Master Corcoran
Petitioner, Filed: February 28, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On January 8, 2021, Evelyn Valdez filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), which she amended on April 22, 2021. Petitioner alleges that she suffered
a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza
(“flu”) vaccine received on October 4, 2019. Amended Petition at 1. The case was
assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
For the reasons described below, I find Petitioner entitled to compensation, and I
award damages in the amount of $35,000.00 for actual pain and suffering.
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-00394-UNJ Document 47 Filed 04/09/24 Page 2 of 14
I. Relevant Procedural History
On March 7, 2022, I ordered that Petitioner would be allowed to seek a ruling on
the record if Respondent had not determined how he intended to proceed in this case by
June 21, 2022 (over a year after the case was activated). Scheduling Order (NON-PDF),
issued March 7, 2022. On June 15, 2022, Respondent filed a status report stating that he
was amenable to informal resolution of Petitioner’s claim (ECF No. 24). But Petitioner
nevertheless filed a motion for a ruling on the record, addressing both her entitlement to
compensation and damages on June 22, 2022 (ECF No. 25).
Respondent filed his Rule 4(c) Report and response to Petitioner’s motion on
January 6, 2023 (ECF No. 31), and Petitioner replied a week later (ECF No. 32). On
January 23, 2024, Petitioner filed a status report stating that she incurred some out of
pocket expenses but does not have substantiating documentation, and thus seeks
compensation only for pain and suffering (ECF No. 35).
On February 9, 2024, I proposed scheduling this case for resolution at a brief
“motions day” hearing, and directed the parties to respond concerning their amenability
and availability for such a hearing (ECF No. 36). But the parties did not agree as to the
utility of such a means of resolution, leaving me to resolve the motion on the papers (ECF
No. 37).
II. Factual Evidence
A. Medical Records
Petitioner received a flu vaccine intramuscularly in her left arm on October 4, 2019.
Ex. 1 at 3. Two and a half months later (December 18, 2019), she saw nurse practitioner
(“NP”) Jesus Arballo at the Patel Medical Clinic for left arm pain. Ex. 3 at 7. Petitioner
stated that her pain and muscle weakness had been present since her vaccination, and
that the pain radiated “from shoulder down towards her upper arm and continue[d] down.”
Id. She was assessed with pain in her left arm, shoulder, and forearm, and given a Medrol
dose pack and diclofenac. Id. at 8. NP Arballo explained it was “likely due to tendonitis
likely due to vaccine,” and planned to treat conservatively and monitor for worsening of
symptoms. Id. at 9. An x-ray done on January 7, 2020 was negative. Id. at 14.
On January 13, 2020, Petitioner returned to NP Arballo to follow up on her left arm
pain. Ex. 3 at 4. Her symptoms had improved after the Medrol dose pack, but she was
still experiencing discomfort, including pain “from what appears to be the biceps tendon .
. . down toward her forearm.” Id. She noticed weakness when “curling her arm.” Id. at 5.
NP Arballo assessed her with left arm pain, noting that the pain persisted despite minor
improvement. Id. He still thought it was related to tendinitis, and treated with oral
diclofenac and a muscle relaxer. Id. He also referred her to a hand and shoulder
specialist. Ex. 6 at 25.
2

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Nearly four months later (May 1, 2020), Petitioner saw Dr. Dara Chafik for left
shoulder pain. Ex. 7 at 7. Petitioner reported that her pain began on October 4, 2019
“immediately after a flu shot.” Id. Initially the pain was “quite severe” and she could not
move her arm at all. Id. With time it had improved, but she continued to treat with
prednisone and diclofenac, with persisting nighttime pain. Id. She had a “feeling of
impingement” with certain weight training movements. Id. On examination, she had full
range of motion of her left shoulder, and slightly positive Hawkins and Neer’s
impingement signs. Id. She was diagnosed with left shoulder subacromial-based pain,
which Dr. Chafik thought was “likely from deep injection of the flu shot.” Id. at 8. Dr. Chafik
offered a subacromial steroid injection or physical therapy, but Petitioner opted to hold off
for the time being “because her symptoms [were] not severe.” Id.
Petitioner thereafter obtained no medical treatment for over four months, or until
September 28, 2020, when she saw NP Arballo for ear pain. Ex. 6 at 13. Left arm,
shoulder, and forearm pain are listed in the “current problems” section of this record, but
there is no other mention of left arm symptoms or treatment. Id. at 13-15. A couple of
weeks later (October 9, 2020), Petitioner obtained another flu vaccine at the Patel Medical
Clinic.3 Id. at 16. The record again lists left arm, shoulder, and forearm pain in the “current
problems” section, but does not indicate that any left arm symptoms or treatment were
discussed or provided. Id. at 16-17. The “current problems” list for this visit also includes
issues from her prior appointment such as unspecified otitis externa, left ear, and otalgia,
left ear (Ex. 6 at 16), although there is no indication that any ear problems were reported
or addressed at this visit. No further medical records have been filed.
B. Affidavit
Petitioner submitted an affidavit (signed on April 1, 2021) in support of her claim.
Ex. 2. She states that within ten minutes of receiving the October 4, 2019 flu vaccine, she
felt “severe pain” in her left shoulder. Ex. 2 at ¶ 10. That night, she could not sleep due to
the pain. Id. Initially she self-treated with Aleve, but when it wore off “the pain was severe.”
Id. Her shoulder pain was “unbearable, and it felt like my tendons and muscles were being
torn apart.” Id. When her severe pain persisted into November 2019, she realized that
what she was experiencing was not routine post-vaccination soreness. Id.
When she saw her primary care provider, she received oral steroids and topical
Diclofenac. Ex. 2 at ¶ 11. After taking these, her pain persisted, and an x-ray was done.
Id. The x-ray did not show any signs of infection in her bone, and she was referred to a
specialist. Id.
Dr. Chafik told her that he had seen similar conditions and that the pain was likely
to continue for at least a year. Ex. 2 at ¶ 12. He offered a cortisone injection, which she
declined because she was uncomfortable with it and thought it would only help
temporarily. Id. She declined physical therapy because her insurance would not cover it
3 Petitioner received a flu vaccine in her right deltoid during this visit. Ex. 6 at 17.
3

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and she could not afford to pay out of pocket. Id. Instead, she researched and did physical
therapy exercises at home. Id.
Petitioner states that during “the time-period following the vaccination,” normal
daily routines became “incredibly challenging and painful.” Ex. 2 at ¶ 13. She could not
lift more than a couple of pounds, and simple tasks such as working out and lifting her
computer bag became difficult. Id. She was unable to do hobbies she loved such as
working out and lifting weights. Id. at ¶ 14. Her work involves home visits and carrying a
laptop, which had become painful. Id. Activities that were once normal, such as sleeping
comfortably, lifting her arm, and carrying things, became “impossible.” Id. at ¶ 15.
She reported trying many things “over the past year” – which presumably means
2020 to 2021 – to alleviate the pain. Ex. 2 at ¶ 16. She took Aleve, muscle relaxers, and
oral steroids, and applied Diclofenac. Id. All had “minimal effectiveness and provided
virtually no relief.” Id. She had done home exercises, which had helped her range of
motion, but she was still unable to lift much weight with her shoulder, and could not carry
her purse or computer bag on her left shoulder without pain. Id.
As of the April 2021 signing of her affidavit, Petitioner stated that she continued to
struggle with shoulder pain. Ex. 2 at ¶ 18. At worst, it felt like a “constant muscle spasm
in my forearm or like there is a knotted ball in my shoulder and the pain is 8 out of 10.” Id.
Her shoulder movement had improved slightly, but she could not extend her shoulder or
lift the way she did before her injury. Id. She explained that she was “physically and
mentally tired from this experience.” Id. at ¶ 19.
III. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his or her claim. Section
13(a)(1)(A). In making this determination, the special master or court should consider the
record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical
records or by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
4

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also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that he or 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 he or
she received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. Section 11(c)(1)(A)(B)(D)(E).
5

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abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
B. Parties’ Arguments
Petitioner argues that the record supports a finding that she received a flu vaccine
in her left shoulder, and that her SIRVA symptoms began within 48 hours thereafter.
Petitioner’s Motion for a Ruling on the Record and Brief in Support of Damages, filed June
22, 2022, at *11 (ECF No. 25) (“Mot.”). She also references her testimony, which is
corroborated by medical records, as establishing that her pain occurred immediately. Mot.
at *11 (citing Exs. 3 at 7, 6 at 7, 7 at 7).
Respondent argues that Petitioner’s claim of immediate severe pain is not
supported by the medical records. Respondent’s Rule 4(c) Report and Response, filed
Jan. 6, 2023, at *6 (ECF No. 31) (“Resp.”). The vaccination record makes no mention of
immediate pain, and Petitioner did not seek treatment even within several weeks after
vaccination. Resp. at *6. Respondent emphasizes the absence of mention of left shoulder
pain during a routine physical on November 13, 2019.5 Id. Respondent adds that when
Petitioner first complained of shoulder pain (in December 2019, and then in January
2020), she reported pain that radiated from her shoulder down toward her upper arm.
5 Respondent mistakenly argues that this physical took place 40 days after vaccination on November 13,
2019. Resp. at *6. But the record reveals that this examination took place on November 13, 2018 – 11
months before vaccination. Ex. 3 at 10.
6

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Resp. at *6-7. Thus, Respondent argues that her pain was not limited to her shoulder,
and she cannot establish a Table SIRVA claim. Id. at *7.
Petitioner replies that her medical records support a finding that her pain began
within 48 hours. Petitioner’s Reply in Support of Petitioner’s Motion for Ruling on the
Record, filed Jan. 13, 2023, at *2 (ECF No. 32) (“Reply”). She argues that she consistently
reported immediate pain, when she first sought treatment for the pain. Reply at *3-4. She
also maintains that Respondent’s argument about pain outside of her shoulder “is a
narrow and distorted reading of the Vaccine Injury Table.” Reply at *5. Petitioner argues
that in adding SIRVA to the Table, the Secretary of Health and Human Services (“HHS”)
clarified that this language was necessary to compensate shoulder injuries from vaccine
injections, rather than compensating back or neck pain that began after a vaccination but
without any accompanying shoulder pain. Id. Petitioner thus argues that “HHS never
intended to preclude compensation for valid SIRVA claims if the shoulder pain radiated
into other parts of the body. Id. at *6 (citing National Vaccine Injury Compensation
Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6294, 6296 (Jan. 19, 2017)
(explaining that this criterion would mean that pain in the neck or back without an injury
to the shoulder would not be considered SIRVA).
Petitioner also cites my decision in Rodgers v. Sec’y of Health & Human Servs.,
No. 18-0559V, 2021 WL 4772097 (Fed. Cl. Spec. Mstr. Sept. 9, 2021), in which I stated
that the third QAI “does not prevent a petitioner with simultaneous areas of pain due to
unrelated conditions from also meeting the Table SIRVA definition.” Reply at *7 (citing
Rodgers at *8). Petitioner argues that Respondent “continues to treat the QAIs as
exclusionary criteria rather than explanations to help pinpoint viable SIRVA injuries,” and
asserts that the QAI criteria “are intended to rule out other causes of symptoms that a
Petitioner may complain about.” Id. at *7-8. Alternatively, Petitioner argues that she has
satisfied the criteria for an off-Table injury set forth in Althen v. Sec’y of Health & Human
Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Id. at *8.
C. Onset
A preponderance of the evidence supports a finding that Petitioner’s left shoulder
pain began within 48 hours of vaccination. Petitioner first sought care for left shoulder
pain on December 18, 2019, 75 days after vaccination. Ex. 3 at 7. At that appointment,
she complained of left arm pain that had been present since her flu vaccination. Id. She
was assessed with left arm pain that was “likely due to vaccine.” Id. at 9. When she saw
specialist Dr. Chafik in May 2020, she reported that her pain began on October 4, 2019
(the date of vaccination) “immediately after a flu shot.” Ex. 7 at 7. And Petitioner stated in
her affidavit that within ten minutes of vaccination she felt “severe pain” in her left
shoulder. Ex. 2 at ¶ 10.
The sole record cited by Respondent in support of his onset argument is from 11
months before vaccination, and I find it is not relevant to the onset question. And the
Vaccine Act does not require proof of onset from within the relevant onset timeframe
7

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(even if such evidence would be especially probative). See Brennan v. Sec’y of Health &
Human Servs., No. 20-1844V, 2023 WL 7162365, at *7 (Fed. Cl. Spec. Mstr. Sept. 13,
2023) (requirement that Petitioner establish onset of pain within 48 hours “does not mean
that a petitioner must be able to cite to a medical record created within the first 48 hours
after vaccination”) (emphases in original); Wilkinson v. Sec’y of Health & Human Servs.,
No. 19-0733V, 2022 WL 444451, at *4 (Fed. Cl. Spec. Mstr. Jan. 14, 2022) (stating that
“the Vaccine Act does not impose such a requirement” as requiring that a petitioner seek
care within 48 hours); Niemi v. Sec’y of Health & Human Servs., No. 19-1535V, 2021 WL
4146940, at *4 (Fed. Cl. Spec. Mstr. Aug. 10, 2021) (“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”)
(emphases in original).
D. Pain Limited to Shoulder
In this case, Petitioner primarily experienced symptoms in her left shoulder, though
she also complained of pain radiating to her upper arm and forearm. NP Arballo
documented her pain as going “from what appears to be the biceps tendon . . . down
toward her forearm” and radiating “from shoulder down towards upper arm.” Ex. 3 at 4, 7.
In other words, her treating provider viewed her pain as originating in her shoulder, though
at times she also felt pain in adjacent areas.
I have previously explained 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 & Human Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr. Dec.
2, 2022) (emphasis in original); see also K.P. v. Sec’y of Health & Human Servs., No. 19-
0065V, 2022 WL 3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022). Determining
whether the pain is predominant to the shoulder, or reflects a more systemic injury, is part
of the balancing of evidence performed by special masters – and hence the fact that a
claimant reports some radiating pain does not completely invalidate a Table SIRVA.
This reasoning is supported by other cases addressing this question. See, e.g.,
Ervin-Spencer v. Sec’y of Health & Human Servs., No. 21-314V. 2023 WL 9231663 (Fed.
Cl. Dec. 8, 2023) (“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) (emphasis in original); Meagher v. Sec’y of Health & Human
Servs., No. 18-1572V, 2023 WL 2582683, at *5 (Fed. Cl. Spec. Mstr. Feb. 23, 2023) (“the
third SIRVA criterion is intended to ensure that SIRVA claims are limited to instances in
which ‘the condition is localized to the shoulder in which the vaccine was administered’”)
(emphasis in original); Grossman v. Sec’y of Health & Human Servs., No. 18-0013V, 2022
WL 779666, at*15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022) (interpreting the purpose of the
third QAI as being “to guard against compensating claims involving patterns of pain or
8

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reduced range of motion indicative of a contributing etiology beyond the confines of a
musculoskeletal injury to the affected shoulder”).
In this case, the record establishes that Petitioner primarily experienced a shoulder
injury consistent with the definition of a SIRVA (although she also experienced symptoms
in her upper arm and forearm), and there is not preponderant evidence of another
etiology. I determine that this record is sufficient to satisfy the third SIRVA QAI criteria.
E. Other SIRVA QAI Criteria
Respondent does not contest the remaining SIRVA QAI criteria, and I find that the
record contains preponderant evidence that they are satisfied. Petitioner did not have a
history of left arm pain or injury prior to vaccination that would explain her symptoms after
vaccination, and no other condition or abnormality has been identified that would explain
her post-vaccination symptoms. See Exs. 2, 3.
F. Other Requirements for Entitlement
The record contains preponderant evidence that other requirements for entitlement
are satisfied as well. Petitioner received a covered vaccine in the United States. Exs. 1 at
3; 2 at ¶ 6. She experienced the residual effects of her condition for more than six months.
Ex. 7 at 7. She averred that neither she, nor any other party, has ever filed an action, or
received compensation in the form of an award or settlement, for her vaccine-related
injury. Ex. 2 at ¶ 8.
IV. Damages
A. Legal Standards
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Sections V and VI of Parsons v.
Sec’y of Health & Human Servs., No. 19-1150V, 2023 WL 9060490, at *7-9 (Fed. Cl.
Spec. Mstr. Nov. 30, 2023).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.
Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.6
6 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3
(Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
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B. Parties’ Arguments
Petitioner proposes an award of $85,000.00. Mot. at *22-23. In support, she cites
Young, Gentile, Dhanoa, and Weber, in which the petitioners were awarded past pain
and suffering awards of $100,000.00, $85,000.00, $85,000.00, and $85,000.00,
respectively, with the Gentile and Dhanoa petitioners also receiving future pain and
suffering awards.7 Id. at 17-23. Petitioner argues that her affidavit testimony and medical
records support a pain and suffering award comparable to these cases. She argues that
her injury is comparable to these cases in that she has had continued pain for over two
years after vaccination and had difficulty with daily activities including pain when lifting or
carrying things, as did the petitioners in Young, Dhanoa, and Weber. Id. at *19. All
petitioners in the cited cases treated with physical therapy, as did Petitioner,8 and the
Dhanoa petitioner and Ms. Valdez were both diagnosed with tendinitis and had injuries
that interfered with their work. Id.
Petitioner also contends that Respondent has urged adoption of an “improper
standard” for calculating pain and suffering, in which only medical record references are
relevant. Mot. at *12. But while medical records are useful for corroborating and
substantiating a petitioner’s damages testimony, their primary purpose is not to record
pain and suffering and emotional distress. Id. at *13. Thus, in Petitioner’s view, medical
records “simply do not tell the full story of a Petitioner’s pain and suffering.” Id. For
instance, medical records often do not discuss ongoing losses of productivity at work,
enjoyment of personal pursuits, lost time with family, or other concerns such as
depression. Id.
Petitioner argues instead that where records are silent on a topic – especially when
there is a good reason for this silence – Petitioner’s testimony on such matters should not
be subject to “the same dubious scrutiny” as a situation where testimony contradicts
medical record. Mot. at *14. The Vaccine Act requires the court to consider the record as
a whole, including testimony from Petitioner and others. Id. at *15. Thus, Petitioner asks
that I weigh her testimony in the context of the record as a whole, including medical
records. Id. at *16. Petitioner has endured “severe pain and suffering and will likely
continue to experience pain and suffering into the indefinite future.” Id.
1995)).
7 Young v. Sec’y of Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4,
2019); Gentile v. Sec’y of Health & Human Servs., No. 16-980V, 2020 WL 3618909 (Fed. Cl. Spec. Mstr.
June 5, 2020); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl.
Spec. Mstr. Feb. 1, 2018); Weber v. Sec’y of Health & Human Servs., No. 17-399V, 2019 WL 2521540
(Fed. Cl. Spec. Mstr. Apr. 9, 2019).
8 Neither the record nor Petitioner’s motion suggest that Petitioner attended formal physical therapy. Thus,
I presume that Petitioner refers to physical therapy exercises that she researched and did at home on her
own. Mot. at *7.
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Respondent objects to prematurely briefing damages before entitlement is
resolved, and argues that damages should not be awarded at all. Resp. at *7. However,
if I award damages, Respondent contends that the award should not exceed $32,000.00,
noting that this is a non-surgical SIRVA with “very limited medical treatment.” Id. at *7-8,
9. Petitioner did not undergo surgery or physical therapy, and declined a steroid injection
because her pain was not severe. Id. She also delayed care for more than two months
post-vaccination, undermining her claims of immediate and severe pain. Id.
Respondent cites Ramos and Mejias, in which the petitioners were awarded
$40,000.00 and $45,000.00, respectively, in support of his proposed award.9 Resp. at *9-
11. In Respondent’s view, Ms. Valdez had even less treatment than the Ramos petitioner,
who treated until over a year after vaccination and attended four occupational therapy
and several physical therapy sessions. Id. at *10. Respondent emphasizes that the Mejias
petitioner presented to urgent care for treatment just two days after vaccination,
compared to 75 days after vaccination for Ms. Valdez. Id. at *10-11.
Respondent also distinguishes the cases Petitioner cites, asserting that Young
involved a petitioner who completed over 50 physical therapy sessions during a two-year
period, compared to Ms. Valdez who declined PT and had only three medical visits, the
last of which was just seven months after vaccination. Resp. at *11-12. Respondent
argues that the Gentile petitioner underwent 19 physical therapy sessions, three steroid
injections, and received medical treatment for over three years after vaccination –
compared to this case involving no formal physical therapy, no steroid injections, and a
limited duration of pain as corroborated by medical records. Id. at *12. Similarly,
Respondent argues that the Dhanoa and Weber petitioners underwent treatment for two
and a half and two years, respectively, involving physical therapy, steroid injections, and
more and are not analogous to this case. Id. at *12-14.
Petitioner replies that Respondent’s cited cases are not analogous to her case.
Reply at *9. Petitioner states that the Ramos petitioner waited four months to seek care
for his arm pain. Id. Petitioner emphasizes an eight-month gap in care in Mejias and
argues that the Mejias petitioner’s formal treatment was “very conservative, including a
lidocaine patch” along with medication. Id. at *10. Petitioner argues that unlike the
petitioners in Ramos or Mejias, she had “residual symptoms that were limiting her ability
to function and causing pain over a year post-vaccination,” citing the October 9, 2020
record. Id.
Petitioner’s reply cites two additional cases, Boyd and Accetta, in which the
petitioners received pain and suffering awards of $80,000.00 and $95,000.00,
9 Ramos v. Sec’y of Health & Human Servs., No. 18-1005, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4,
2021); Mejias v. Sec’y of Health & Human Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr.
Nov. 10, 2021).
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respectively.10 Reply at *11-12. Petitioner argues that she first sought care sooner than
the Accetta petitioner, and her treatment was similar to both the Boyd and Accetta
petitioners in that “none of the petitioners opted to have cortisone injections, and rather
treated with other options.” Id. at *13. Petitioner asserts that like the Boyd petitioner, she
performed physical therapy exercises at home to save money. Id.
C. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
Petitioner’s last medical treatment for her injury occurred just under seven months
after vaccination, when she saw Dr. Chafik on May 1, 2020. At that point, she reported
that her pain had improved with time, and she had full range of motion and slightly positive
impingement signs. Ex. 7 at 7. Petitioner declined a steroid injection and physical therapy
“because her symptoms [were] not severe.” Id. at 8.
While the records of Petitioner’s September and October 2020 appointments for
other concerns list left arm, shoulder, and forearm pain in the “current problems” section
of the record, there is no mention of symptoms or treatment related to her shoulder, or
any other mention of her shoulder. Ex. 6 at 13-17. Thus, these records do not support a
finding that her shoulder pain continued to require treatment at this time.
At bottom, Petitioner’s injury was relatively minor for a SIRVA, and on the milder
end in terms of duration and treatment. I acknowledge Petitioner’s explanation that she
did not seek formal physical therapy for financial reasons, though it was recommended.
Still, Petitioner sought formal care only three times, with the last being just seven months
after vaccination.
Petitioner correctly maintains that pain and suffering calculations should not be
based solely on the medical records. But they are nevertheless highly relevant to that
analysis. Medical records are created contemporaneous to most of the treatment events
they describe. While they are not created for the purpose of documenting pain and
suffering, the fact that a person sought – or did not seek – medical treatment for an injury
provides useful information about the extent and severity of the injury, and the impact it
10 Boyd v. Sec’y of Health & Human Servs., No. 19-1107V, 2021 WL 4165160 (Fed. Cl. Spec. Mstr. Aug.
12, 2021); Accetta v. Sec’y of Health & Human Servs., No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec.
Mstr. Mar. 31, 2021).
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is having on their life.
At the same time, witness statements also bear on pain and suffering. And I find
that Petitioner’s affidavit testimony provides useful, subjective information about
Petitioner’s shoulder pain and how it impacted her life. However, that document was
signed a year and a half after vaccination, and 11 months after her last treatment for her
shoulder pain, and the claim that her pain persisted at that time is uncorroborated by other
evidence. I find that the record does not demonstrate that it is more likely than not that
Petitioner’s shoulder pain continued much, if any, beyond seven months.
The cases Petitioner cites are not comparable. They involve injuries of significantly
longer duration, from 29 months to four years or more. Further, the petitioner in all of
Petitioner’s cases received formal PT, and all but one received at least one steroid
injection. Although the Boyd petitioner did home exercises, she also attended 19 sessions
of formal PT. Boyd, 2021 WL 4165160, at *4-5.
Of the cited cases, I find that Petitioner’s injury is most similar to Mejias. In Mejias,
the petitioner sought care two days after vaccination, and again eight days later. Mejias,
2021 WL 5895622 at *3. Thereafter, he did not seek care for shoulder pain again until
eight months later. Id. at *4. The Mejias petitioner last sought care ten months after
vaccination and did not receive any steroid injections or formal PT, though both were
offered. Id. Thus, Ms. Valdez and the petitioner in Mejias underwent similar treatment.
However, the overall duration in Mejias was a few months longer and that petitioner
sought care sooner after vaccination – suggesting a somewhat longer duration and
greater initial pain. Thus, the overall mix of factors suggest and support a lower amount.
I award Ms. Valdez $35,000.00 in pain and suffering.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I GRANT Petitioner’s motion for a ruling on the record and find that
Petitioner’s left shoulder injury meets the definition for a Table SIRVA and she is
entitled to compensation in this case.
Furthermore, I find that $35,000.00 represents a fair and appropriate amount
of compensation for Petitioner’s actual pain and suffering.11 I award Petitioner a
lump sum payment of $35,000.00 in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under Section
15(a).
11 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
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The Clerk of Court is directed to enter judgment in accordance with this Decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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.
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