VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00947
Package ID: USCOURTS-cofc-1_21-vv-00947
Petitioner: Antonio J. Smith
Filed: 2021-02-18
Decided: 2024-06-27
Vaccine: influenza
Vaccination date: 2019-11-05
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Antonio J. Smith, born in 1981, filed a petition for compensation under the National Vaccine Injury Compensation Program on February 18, 2021. He alleged that he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on November 5, 2019. The case was assigned to the Special Processing Unit. The respondent initially filed a report recommending denial of entitlement. Following briefing by both parties, Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 27, 2024. Mr. Smith, who was incarcerated at the Wisconsin Secure Program Facility at the time of vaccination, received the flu vaccine in his left deltoid. On the same day, he reported pain at the injection site. Medical records from November 6, 2019, noted slight swelling in his left arm, and subsequent records documented ongoing left shoulder pain, stiffness, and decreased range of motion. Dr. Eileen Gavin noted the history of left shoulder injury since the vaccine and questioned if a pre-existing condition was exacerbated. A physical therapy evaluation on December 16, 2019, confirmed left-sided weakness, decreased range of motion, and "frozen shoulder." By March 4, 2020, Dr. Tricia Lorenz assessed Mr. Smith with tendinitis and impingement syndrome. In June 2020, Dr. Michael Gross repeated these assessments and noted unremarkable x-ray findings. Mr. Smith resumed physical therapy in July 2020, with assessments of adhesive capsulitis. In September 2020, Dr. Edward Riley evaluated Mr. Smith, noting decreased range of motion and weakness in the left shoulder, with normal neurological findings, and also noted neck pain. MRIs in January 2021 showed supraspinatus tendinosis and mild acromioclavicular osteoarthritis in the left shoulder, and degenerative changes with foraminal narrowing in the cervical spine. By February 2021, Mr. Smith's range of motion had objectively improved, and he was no longer suffering from adhesive capsulitis. By April 8, 2021, his pain location shifted to his neck, and his left shoulder had full strength and range of motion, though passive rotation was somewhat limited. He was discharged from physical therapy on that date. In February 2022, Dr. Justin Ribault noted limited left neck rotation, limited left shoulder abduction, poor internal rotation, and pain with left trapezius palpation, suggesting a left trapezius strain and noting that the shoulder complaint did not fully match MRI abnormalities. Dr. Ribault also noted that Mr. Smith had a stable left shoulder decreased range of motion along with localized pain since at least 2018, a notation the Special Master found inconsistent with the overall weight of medical records. In November 2022, Dr. Riley re-evaluated Mr. Smith, assessing cervical spondylosis with nerve root impingement and left upper extremity weakness, and chronic left shoulder pain and limited motion, possibly a sequela of frozen shoulder, recommending evaluation for left upper extremity weakness before proceeding with shoulder treatment. The Special Master found that Mr. Smith had preponderantly established entitlement to compensation for a Table SIRVA, determining that he met the criteria, including no history of prior shoulder pain that would explain the symptoms and no other condition explaining the symptoms, such as a trapezius strain. The case is proceeding to the damages phase. The Special Master tentatively assessed damages to extend at least until April 8, 2021, and encouraged the parties to reach a compromise on pain and suffering.

Theory of causation field:
Petitioner Antonio J. Smith, age 38, received an influenza vaccine on November 5, 2019. He alleged a shoulder injury related to vaccine administration (SIRVA). The Special Master found that Petitioner preponderantly established entitlement to compensation for a Table SIRVA. The ruling addressed the SIRVA criteria under 42 C.F.R. § 100.3(c)(10), specifically the absence of prior shoulder pain or dysfunction that would explain the post-vaccination symptoms and the absence of another condition explaining the symptoms. Respondent argued that a notation by Dr. Justin Ribault indicating shoulder pain and decreased range of motion since "at least '18" and a left trapezius strain explained the symptoms. The Special Master found Dr. Ribault's notation inconsistent with the overall weight of medical records, which did not document pre-vaccination left shoulder complaints. The Special Master also found insufficient evidence that a trapezius strain explained Petitioner's symptoms, noting that the acute shoulder symptoms were documented well before significant neck pain. The Special Master concluded that Petitioner met the criteria for a Table SIRVA, where causation is presumed. The case is proceeding to the damages phase, with a tentative assessment of damages extending at least until April 8, 2021. Attorneys involved were Scott B. Taylor for Petitioner and Tyler King for Respondent. Chief Special Master Brian H. Corcoran issued the ruling on June 27, 2024.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00947-0
Date issued/filed: 2024-06-27
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/28/2024) regarding 37 Ruling on Entitlement,, Scheduling Order, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0947V
ANTONIO J. SMITH, Chief Special Master Corcoran
Petitioner,
v. Filed: May 28, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT – SPECIAL PROCESSING UNIT1
On February 18, 2021, Antonio J. Smith filed a Petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that he suffered a shoulder injury related to vaccine administration
(“SIRVA”) as a result of an influenza (“flu”) vaccine administered to him on November 5,
2019. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the
Office of Special Masters (the “SPU”). For the following reasons, I find that Petitioner has
preponderantly established all requirements for entitlement to compensation for a Table
SIRVA.
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-00947-UNJ Document 39 Filed 06/27/24 Page 2 of 10
I. Procedural History
Almost two years after the claim’s initiation, Respondent filed a Rule 4(c) Report
recommending denial of entitlement to compensation for a Table SIRVA. Rule 4(c) Report
(ECF No. 29) at 7 – 8. The parties thereafter submitted briefing in anticipation of my ruling
on the record. See Scheduling Order filed Apr. 27, 2023 (ECF No. 30); Memorandum filed
June 11, 2023 (ECF No. 32) (“Brief”); Response filed Aug. 9, 2023 (ECF No. 34); Reply
filed Aug. 11, 2023 (ECF No. 35). The matter is now ripe for adjudication.
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
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,3 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E).
2

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 3 of 10
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:
(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) (2017).
3

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 4 of 10
III. Evidence
I have reviewed all of the filings submitted by both parties to date, but limit
discussion to the issues requiring adjudication.
• Petitioner was born in 1981. For over three years prior to the date of vaccination
and for at least several years thereafter, he has been in the custody of the
Wisconsin Department of Corrections, and specifically incarcerated at the
Wisconsin Secure Program Facility. See generally Exs. 3 – 8 (certified medical
records); but see, e.g., Ex. 4 at 293 – 95 (transfer off-site for urgent medical
attention); see also Ex. 9.4
• A single nursing note from April 2019 suggests that Petitioner suffered from neck
pain. Ex. 4 at 18. But this condition is not corroborated by any physical examination
or diagnosis involving the neck. Id. at 18 – 19. Instead, the majority of medical
records reflect that Petitioner’s pain was in his lower back, extending down his left
leg. See, e.g., Ex. 4 at 17, 19, 22, 24, 34, 64, 65. This pain was chronic – attributed
both to sciatica, Ex.4 at 122, 125, and to a previous motor vehicle crash, id. at
262.5 However, the lower back pain was not definitively diagnosed;
electrodiagnostic studies, as well as x-rays of his spine, were unremarkable. Ex. 4
at 65 – 67, 71.
• Petitioner received the subject flu vaccine in his left deltoid on November 5, 2019.
Ex. 3 at 53, 258 – 59. Later that same day, Petitioner submitted two separate health
service requests (“HSRs”) concerning vaccination site pain. Ex. 3 at 14 – 15.
• On November 6, 2019, a nurse observed that Petitioner’s left arm was slightly
swollen. She discussed that injection site pain was common and could be
managed conservatively. Ex. 3 at 32 – 34; but see id. at 311, 314 – 15 (Petitioner’s
subsequent HSRs, reporting continued pain).
4 The information contained in Ex. 9 is publicly available from the Wisconsin Department of Corrections,
Offender Locator Public, https://appsdoc.wi.gov/lop/details/detail (search for Antonio J. Smith, birth year
1981, last accessed May 24, 2024).
5 Respondent requested any additional “records or documentation relating to Petitioner’s back pain and the
motor vehicle accident.” Rule 4(c) Report at 3, n. 1. Based on Petitioner’s production of certified medical
records for over three years prior to the date of vaccination as well as his incarceration, I have concluded
that the evidence is sufficiently complete, and that further efforts to satisfy Respondent’s request are
unlikely to yield additional relevant information.
4

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 5 of 10
• On November 12, 2019, a nurse observed that Petitioner was still suffering from
left shoulder pain, and therefore refused to submit to physical examination. Ex. 3
at 30 – 32.
• On November 13, 2019, Eileen Gavin, M.D., similarly documented Petitioner’s
history of a left shoulder injury since the flu vaccine, ongoing pain, and refusal of
physical examination. Ex. 3 at 18. Dr. Gavin questioned why a vaccination “would
affect the bony shoulder girdle,” and whether Petitioner “may have had a pre-
existing shoulder problem that was made worse by the increased inflammation.”
Id. “Regardless, [Dr. Gavin] discussed with him at great length the importance of
range of motion [“ROM”] exercises before it becomes frozen.” Id.
• A December 16, 2019, PT initial evaluation noted Petitioner’s history of: “[p]ain in
left shoulder since he received his flu vaccination on 11/5/2019. He was unable to
move his hand, elbow, and shoulder L UE at first… He is still having a lot of pain
and stiffness in the shoulder.” Ex. 3 at 66. An exam confirmed left-sided weakness,
decreased ROM, and “frozen shoulder.” Id. at 66 – 72. On January 8, 2020, after
attending six formal sessions and displaying “slow progress,” Petitioner was
discharged with a home exercise program. Id.
• On March 4, 2020, Tricia Lorenz, D.O., assessed Petitioner with tendinitis and
impingement syndrome. Ex. 3 at 19 – 20.
• On June 25, 2020, Michael Gross, M.D., recorded that the Pandemic had
interrupted formal treatment for Petitioner’s left shoulder; he was not following his
HEP due to pain, and he currently had decreased ROM. Ex. 3 at 34 – 35. Dr. Gross
repeated the assessment of tendinitis and impingement syndrome, and obtained
an x-ray of the shoulder with unremarkable findings. Id. at 34 – 35, 76.
• On July 30, 2020, Petitioner resumed formal PT for his left shoulder – again,
relating the injury to his flu vaccination. Ex. 5 at 104. On exam, the left shoulder
was painful and ROM was “grossly impaired.” Id. at 105. The physical therapist
assessed adhesive capsulitis in the “freezing stage,” which would likely be followed
by “frozen” and “thawing” stages. Id.
• Subsequent medical records reflect that Petitioner was motivated to avoid any
injections or surgery. He adhered to a daily HEP in between periodic PT sessions
(occurring approximately once per month), improved his ROM, but suffered
ongoing pain – which was “typical for adhesive capsulitis” according to his physical
therapist. Ex. 5 at 98, 100, 102.
5

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 6 of 10
• On September 25, 2020, Petitioner was transported off-site for evaluation with
Edward Riley, M.D., an orthopedic surgeon at the Gunderson Health System. Ex.
5 at 114. Dr. Gunderson recorded Petitioner’s history of left arm pain following the
flu shot, as well as a current “painful knot in the left back of his neck.” Id. at 115.
On exam, the left shoulder had decreased ROM, weakness, and normal
neurological findings (deep tendon reflexes and sensation). Id. There was also
“Moderate limitation of neck motion; extension and rotation to left causes pain left
neck.” Id. Dr. Riley’s assessment was “stiff left shoulder, left upper extremity
weakness.” Id.
• A January 27, 2021 MRI of Petitioner’s left shoulder visualized supraspinatus
tendinosis and mild acromioclavicular osteoarthritis. Ex. 5 at 110. That same day,
an MRI of his cervical spine visualized degenerative changes and moderate left-
sided foraminal narrowing at C5-6 and C6-7. Id. at 109.
• At a February 25, 2021, PT session, Petitioner’s “fear/ avoidance limits his ability
to range [sic? raise?] his shoulder.” Ex. 5 at 92. However, his ROM was objectively
improved, and he was no longer suffering from adhesive capsulitis. Id. The
physical therapist questioned whether the MRI findings at C5-7 were causing his
ongoing pain. Id.
• At an April 8, 2021, PT session, the “pain location” was changed from “shoulder”
to “neck.” Ex. 5 at 88. Petitioner complained of “similar levels of pain in all joints
(left shoulder, neck, and back).” Id. at 90. His left shoulder had full strength, full
active ROM, and somewhat limited – but “functional” passive external and internal
rotation. Id. The therapist added: “Deep cervical flexor strength is normal; however,
hypertrophy of muscle tissue takes 12 – 16 weeks.” Id. Petitioner was discharged
from formal PT on that date. Id.
• Over five months later, in September 2021, Petitioner mentioned “ongoing left
shoulder pain” – in addition to low back pain - to James Murphy M.D. Ex. 6 at 20
– 21.
• Petitioner attended formal PT addressing both his left shoulder and low back on
October 18, November 16, and December 18, 2021. Ex. 6 at 78 – 92.
• In January 2022, the correctional facility nurses and physical therapist asked Justin
Ribault, M.D. to assist with Petitioner’s ongoing complaints. Ex. 6 at 51 – 54.
6

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 7 of 10
• On February 1, 2022, Dr. Ribault’s examination of Petitioner found “limited left neck
rotation, limited left shoulder abduction, poor internal rotation; left trap palpation
produces pain.” Ex. 6 at 17. Dr. Ribault also wrote:
[Petitioner] has had a stable left shoulder decreased range of
motion along with localized pain since at least ’18. A 1/2021
MRI showed a supraspinatus tendinosis which would not
correlate with his inability to internally rotate his arm. Also per
that MRI, he has evidence of a left cervical radiculopathy, but
his pain complaint seems to be focused at the rotator cuff and
did not correlate with a C5/C6 radiculopathic pattern. His left
trapezius is strained which makes sense as it involves the
neck and shoulder.”
Id. Dr. Ribault also wrote that the shoulder complaint did not “totally matc[h] noted
MRI abnormalities,” and ordered a Theraband to aid Petitioner’s home exercises.
Ex. 5 at 18; accord id. at 52 (therapist’s suggestion of the Theraband).
• Petitioner attended formal PT addressing his left shoulder and low back on April
21, June 16, and July 14, 2022. Ex. 7 at 43 – 49; Ex. 8 at 44 - 47.
• On July 1, 2022, Shirly Godiwalla, M.D., determined that Petitioner’s left shoulder
and low back pain warranted another off-site consultation – which was postponed
several times. Ex. 8 at 23 – 30, 48.
• Finally on November 4, 2022, the off-site orthopedic surgeon Dr. Riley re-
evaluated Petitioner – starting with his history of “left shoulder pain and stiffness
since a flu shot in November 2019… better than it was but still stiff and painful,”
while also noting the exercises provided for Petitioner’s neck. Ex. 8 at 49. Dr. Riley
reviewed the MRIs obtained since their last appointment. Id. His assessment was:
“Cervical spondylosis with multilevel nerve root impingement and exam c/w left UE
weakness. Chronic left shoulder pain and limited motion. Could be sequela of
frozen shoulder.” Id. Dr. Riley “recommended that [Petitioner] be evaluated for his
left UE weakness before proceeding with any treatment of his left shoulder. This
could be via referral to neck specialist or possibly EMG. Neck situation needs to
be clarified before settling on treatment plan for shoulder. Treatment of the
shoulder itself could be trial cortisone injection or arthroscopic eval.” Id.
• On November 9, 2022, Petitioner complained again of left shoulder pain. Ex. 8 at
27. A nurse advised that he was being scheduled for an off-site pain management
consultation. Id. However, no further records have been filed.
7

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IV. Findings of Fact
A. Prior History
The first issue to be resolved is whether Petitioner had “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,” 42 C.F.R. § 100.3(c)(10)(i).
In disputing Petitioner’s satisfaction of the above criterion, Respondent first cites
evidence of “pre-existing complaints of pain throughout [Petitioner’s] back and neck.” Rule
4(c) Report at 8. But Petitioner argues that this characterization is overly broad – because
any prior complaints were mostly related to his lower back (which has no correlation to
his left shoulder at all), with only one complaint about neck pain. Brief at 5. Respondent
did not rebut Petitioner’s explanation, which is confirmed by an independent review of the
medical records (as set forth above). And importantly, neither the medical records
themselves nor Respondent’s position addresses how any such prior history “would
explain” the post-vaccination complaints.
Respondent also emphasizes Dr. Ribault’s medical record notation that
Petitioner’s left shoulder pain and decreased ROM had been present “since at least ’18.”
Ex. 6 at 17. Respondent maintains that “this would predate Petitioner’s influenza
vaccination,” Rule 4(c) Report at 8, and emphasizes that Petitioner has the burden of
establishing that this history is inaccurate. Response at 3.
While Dr. Ribault’s notation “warrant[s] consideration as trustworthy evidence,”
Response at 3 (citing Cucuras, 993 F.2d 1525, 1528), it was also created in February
2022 – several years after both the vaccination and the even earlier timeframe it
references. Dr. Ribault did not appear to have any previous patient relationship with
Petitioner, and it is not evident he had reviewed any prior medical records prior to their
first meeting. The available evidence establishes only that Dr. Ribault was fulfilling other
medical providers’ requests for assistance in determining, and prescribing, appropriate
pain measures for Petitioner. Moreover, (and as Petitioner persuasively notes),
“[i]nconsistency among medical records… alone does not defeat a claim unless it
preponderantly supports an alternative finding.” Graczyk v. Sec’y of Health & Hum.
Servs., No. 21-0376V, 2023 WL 4573868, at *6 (Fed. Cl. Spec. Mstr. Jun. 16, 2023)
(emphasis added). Here, Dr. Ribault’s one inconsistent record is outweighed by the
overall weight of medical records, which do not document any pre-vaccination left
shoulder complaints. Therefore, preponderant evidence supports the determination that
8

Case 1:21-vv-00947-UNJ Document 39 Filed 06/27/24 Page 9 of 10
Petitioner did not likely have any history of left shoulder pain, inflammation, or dysfunction
prior to the November 5, 2019, vaccination.
Based on the above factual findings, Petitioner has preponderantly established this
Table element.
B. Other Condition or Abnormality
Petitioner also has the burden of establishing that “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)(iv).
On this point, Respondent emphasizes Dr. Ribault’s February 2022 assessment
of a left trapezius strain. Rule 4(c) Report at 8, citing Ex. 6 at 17. But Petitioner disputes
that any such strain had been present and undiagnosed for over two years. Brief at 5.
Indeed, Dr. Ribault “does not state when Petitioner’s trapezius strain occurred or how it
happened.” Reply at 6. Petitioner emphasizes the documentation from earlier, and much
closer in time to the November 2019 vaccination, of acute left shoulder pain,
supraspinatus tendinopathy, impingement syndrome, and adhesive capsulitis. Id. at 7 –
8. Indeed, all of the above is documented well before any significant neck pain, which is
first documented in or around September 2020. See Ex. 5 at 114 – 15.
Overall, there is far less than preponderant evidence that the trapezius strain would
explain Petitioner’s symptoms. Thus, this element is also met.
Conclusion and Scheduling Order
Based on a full review of the record and the lack of any further objections from
Respondent, I also conclude that Petitioner has established preponderant evidence of all
other required criteria for SIRVA as defined by the Vaccine Injury Table, and for all other
legal prerequisites for compensation under the Vaccine Act (as set forth in the above legal
standard). Thus, Petitioner is entitled to compensation for a Table SIRVA.
Petitioner previously reported that his claim did not involve a Medicaid lien.
Scheduling Order filed Nov. 12, 2021. He also conveyed a settlement demand limited to
pain and suffering. Status Report filed Mar. 1, 2022 (ECF No. 21).
9

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As the case proceeds to the damages phase, my preliminary and tentative
assessment is that the SIRVA damages picture extends at least until the April 8, 2021,
PT discharge. The subsequent medical records are less clear as to whether Petitioner
was still suffering from a SIRVA, versus more compensatory or entirely unrelated pain in
other parts of his body which would be harder to include in the SIRVA damages picture.
It is also noted that Petitioner’s fairly conservative treatment course may have been
influenced in part by his incarceration and (at least temporarily) by the Pandemic. Overall,
there appears to be opportunity for the parties to reach a reasonable and prompt
compromise on an appropriate pain and suffering award for Petitioner. If that is not
possible, the case will likely be transferred out of SPU for further proceedings.
Accordingly, Petitioner shall file a status report updating on the progress
made toward informally resolving damages by no later than Friday, July 12, 2024.
The status report shall specify the date on which Petitioner conveyed or intends to convey
a damages demand. If Petitioner’s damages demand is ready for Respondent’s
consideration, the status report shall also specify the date on which Respondent provided
his reaction. Otherwise, the parties shall confer, and Petitioner shall report the date by
which Respondent expects to offer a counter-proposal.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10