VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00980
Package ID: USCOURTS-cofc-1_21-vv-00980
Petitioner: Kimberly Axelrod
Filed: 2021-02-22
Decided: 2024-01-16
Vaccine: influenza
Vaccination date: 2020-09-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 66988

AI-assisted case summary:
On February 22, 2021, Kimberly Axelrod filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on September 22, 2020. Ms. Axelrod, who was 38 years old at the time of vaccination, alleged that her vaccine-related injuries lasted more than six months. The petition stated that the vaccination was administered within the United States and that no other action or compensation had been sought for these injuries. The case was assigned to the Special Processing Unit. On October 25, 2022, the Special Master issued Findings of Fact, concluding that the evidence demonstrated the vaccination was administered in Ms. Axelrod's left arm, her injury persisted for more than six months, and onset occurred within 48 hours. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on January 9, 2023, stating that they would not defend the case on other grounds and that Ms. Axelrod had satisfied the criteria for a SIRVA claim under the Vaccine Injury Table. Specifically, the respondent noted that Ms. Axelrod had no recent history of left shoulder pain, that the onset of pain occurred within 48 hours of vaccination, that the pain was limited to the vaccinated shoulder, and that no other condition explained the pain. The respondent did not dispute that Ms. Axelrod had met all legal prerequisites for compensation. Based on the respondent's position and the evidence, a Ruling on Entitlement was issued in March 2023, finding Ms. Axelrod entitled to compensation. However, the parties could not agree on the amount of damages, leading to further briefing. On January 16, 2024, Chief Special Master Brian H. Corcoran issued a Decision awarding Ms. Axelrod $66,988.25. This award included $65,000.00 for actual pain and suffering and $1,988.25 for actual unreimbursable expenses, which the parties had stipulated to. The Special Master noted that Ms. Axelrod's SIRVA was mild, characterized by moderate pain (initially rated 5/10, later improving to 0-3/10), reduced range of motion, and weakness, which persisted for over six months. She underwent physical therapy, received medication, and had one steroid injection. The Special Master compared Ms. Axelrod's case to prior SIRVA awards, finding her injury less severe than in some cited cases but warranting an upward adjustment from others. Petitioner was represented by Catherine Wallace Costigan of Maglio Christopher & Toale, PA, and Respondent was represented by Nina Ren of the U.S. Department of Justice.

Theory of causation field:
Petitioner Kimberly Axelrod, a 38-year-old adult, received an influenza vaccine on September 22, 2020. She alleged a shoulder injury related to vaccine administration (SIRVA) with onset within 48 hours, lasting more than six months. The respondent conceded that the injury met the criteria for a Table claim, specifically noting no prior left shoulder issues, onset within 48 hours, pain localized to the vaccinated shoulder, and no other identified cause. The Special Master's Findings of Fact confirmed vaccination in the left arm, injury duration exceeding six months, and onset within 48 hours. The Ruling on Entitlement found Petitioner eligible for compensation. The subsequent Decision on Damages, issued by Chief Special Master Brian H. Corcoran on January 16, 2024, awarded Petitioner $66,988.25 ($65,000.00 for pain and suffering, $1,988.25 for unreimbursable expenses). The Special Master characterized the injury as mild, supported by medical records showing moderate pain, reduced range of motion, and weakness, treated with physical therapy, medication, and one steroid injection. Petitioner was represented by Catherine Wallace Costigan, and Respondent by Nina Ren.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00980-0
Date issued/filed: 2022-06-21
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/10/2022) regarding 25 Findings of Fact & Conclusions of Law Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:21-vv-00980-UNJ Document 33 Filed 06/21/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0980V
UNPUBLISHED
KIMBERLY AXELROD, Chief Special Master Corcoran
Petitioner, Filed: May 10, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Compensation Under the Vaccine
HUMAN SERVICES, Program; Offset; Section 15(g);
Claim of Subrogation by Private
Respondent. Health Care Insurance; Section
15(h).
LeeAnne Pedrick, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON INABILITY TO CLAIM PRIVATE HEALTH CARE
INSURANCE OFFSET IN VACCINE PROGRAM 1
On May 9, 2022, Kimberly Axelrod (“Petitioner”) filed a motion for a ruling
concerning how Sections 15(g) and (h) of the National Childhood Vaccine Injury
Compensation Program (the “Vaccine Act” or “Program”)2 pertains to the present case.
Petitioner has been contacted by Optum, on behalf of her healthcare insurer United
Healthcare, regarding recoupment of benefits under a right of subrogation set forth in the
insurance policy. Thus, Petitioner seeks to clarify whether her health care insurer is
entitled to reimbursement of benefits that it has paid if Petitioner recovers monies in her
Vaccine case.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (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 The National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as
amended, 42 U.S.C. §§ 300aa-10 et seq. Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.

Case 1:21-vv-00980-UNJ Document 33 Filed 06/21/22 Page 2 of 2
Under the Vaccine Program, a petitioner may recover actual and projected
unreimbursable expenses, lost wages, and pain and suffering, and an award of $250,000
if the injury resulted in death. Section 15(a); see also Helman v. Sec’y of Health & Hum.
Servs., No. 10-813V, 2014 WL 3589564, at *1 (Fed. Cl. Spec. Mstr. June 24, 2014) (citing
Bruesewitz v. Wyeth, LLC, 131 S.Ct. 1068, 1074 (2011)). But such compensation
elements are limited by subsequent sections of the Act. Thus, punitive and exemplary
damages are prohibited, and for unreimbursable expenses and pain and suffering,
compensation may be provided only for the “health, education, or welfare of the person
who suffered the vaccine-related injury.” Section 15(d).
Additionally, total recoverable compensation for an established vaccine injury is
offset by amounts paid or expected to be paid under an insurance policy and certain State
or Federal programs. Section 15(g).3 Thus, the Vaccine Act always and by its own terms
functions as a secondary payer to a petitioner’s health care insurance. Any entitlement
award paid to a petitioner cannot include amounts paid or expected to be paid under his
or her existing health care insurance policy. The Act also prohibits any health insurance
policy from “mak[ing] payment of benefits under the policy secondary to the payment of
compensation under the Program.” Section 15(h).
In light of the above, it is readily evident that the plain language of the Vaccine Act
does not authorize reimbursement for benefits already paid under Petitioner’s health care
insurance policy. This means that if Petitioner is successful in establishing
entitlement to a Vaccine Act award, her insurer cannot be reimbursed by the
Vaccine Program for its payments for Petitioner’s treatment in connection with the
injury, sickness, accident, or condition which has been alleged. Petitioner shall so
inform any entity that indicates the intent to act in controversion of the Act’s requirements.
Any questions about this order or about this case generally may be directed to OSM
attorney Kate Burmeister at (202) 357-6370 or Kate_Burmeister@cfc.uscourts.gov.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 As Section 15(g) specifically states:
Payment of compensation under the Program shall not be made for any
item or service to the extent that payment has been made, or can
reasonably be expected to be made, with respect to such item or service
(1) under any State compensation program, under an insurance policy, or
under any Federal or State health benefits program (other than under title
XIX of the Social Security Act (42 U.S.C. 1396 et seq.)), or (2) by an entity
which provides health services on a prepaid basis.
2

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00980-1
Date issued/filed: 2022-11-29
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/25/2022) regarding 42 Findings of Fact & Conclusions of Law,,, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 1 of 12
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0980V
UNPUBLISHED
KIMBERLY AXELROD, Chief Special Master Corcoran
Petitioner,
v. Filed: October 25, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Ruling on Entitlement; Findings of
Fact; Severity; Site of Vaccination;
Respondent. Onset; Influenza (Flu); Shoulder
Injury Related to Vaccine
Administration (SIRVA).
LeeAnne Pedrick, Maglio, Christopher, & Toale PA, Washington, DC, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On February 22, 2021, Kimberly Axelrod 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 that as a result of receiving the influenza (“flu”) vaccine
on September 22, 2020, she suffered a left-sided shoulder injury related to vaccine
administration (“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petition
(ECF No. 1) at Preamble. The case was assigned to the Special Processing Unit (“SPU”)
of the Office of Special Masters.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (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-00980-UNJ Document 45 Filed 11/29/22 Page 2 of 12
For the reasons discussed below, I find that the flu vaccine was most likely
administered in Petitioner’s left arm; her injury persisted for more than six months; and
onset occurred within 48 hours.
I. Relevant Procedural History
Three months after the case’s imitation, Ms. Axelrod filed medical records, a
declaration,3 and other materials needed to evaluate what records should be filed to
substantiate the claim (Exs. 1-22). On October 20, 2021, I deemed the record complete
pursuant to Section 11(c) of the Vaccine Act. However, I noted a discrepancy between
Petitioner’s allegations and one contemporaneous record indicating a right-sided vaccine
administration (Ex. 12 at 5, 7, 9). PAR Activation Order (ECF No. 13). On January 3,
2022, Petitioner filed an Amended Petition (ECF No. 18), as well as some supplemental
declarations (Exs. 23-24).
On March 7, 2022, Respondent offered his preliminary review and analysis of the
case. Status Report (ECF No. 23). Petitioner then filed supplemental contemporaneous
evidence (Ex. 25) and her original declaration unchanged except for a new signature
dated May 19, 2022 (Ex. 26).
On May 31, 2022, the parties were permitted to file any additional evidence and
briefing on the factual and/or legal issues raised by Respondent, and receive my
resolution thereof, while the case awaited Respondent’s medical review. Scheduling
Order (ECF No. 30). Petitioner was granted additional time. Motion (ECF No. 31); Order
(ECF No. 32); Exs. 27-28. Thereafter on September 1, 2022, Petitioner filed a Motion for
Findings of Fact (“Motion”) (ECF No. 39).4 On September 15, 2022, Respondent filed his
Response in opposition (ECF No. 40). On September 28, 2022, Petitioner filed a Reply
(ECF No. 41). I have determined that resolution of several disputed fact issues is
appropriate and will assist in the case’s ultimate resolution.5
3 In each statement submitted to date, the witness declared that his or her statements are true and correct
under penalty of perjury. See 28 U.S.C. § 1746 (providing that such a statement shall carry “like force and
effect” as a notarized affidavit).
4 Also on September 1, 2022, Petitioner reported that she was no longer undergoing formal treatment for
her shoulder as her pain had mostly subsided, and that she had not yet conveyed a demand to Respondent
in light of the identified factual issues. ECF No. 38.
5 See also Response at 3 and n. 1-2 (providing that Respondent had not conducted the required medical
analysis of the claim as of September 15, 2022, and estimating that would occur in December 2022).
2

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 3 of 12
II. Applicable Legal Standard
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “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 also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “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 & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
3

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 4 of 12
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
III. Relevant Evidence
I have reviewed all of the evidence filed to date. This ruling, however, is limited to
determining facts pertaining to disputed factual issues. Accordingly, I will offer only a
limited summary of the relevant facts. Specifically:
• Petitioner was thirty-seven (37) years old with a non-contributory medical
history. She received a flu vaccine in October 2018 in her left arm. Ex. 12 at
12. She received another flu vaccine in October 2019, but the site is not
recorded. Ex. 13 at 10. She is right-handed. Id.
• On September 22, 2020, at approximately 8:00 a.m., Petitioner presented to
the Commonwealth Medical Center Urgent Care (“CMC Urgent Care”) clinic in
Arlington, Virginia. See Ex. 12 at 7-9. Petitioner sought 1) COVID-19 testing
that was required before a surgical procedure and 2) the subject flu vaccination.
Ex. 12 at 8.6 She reported no complaints. Id. Her temperature, pulse, and
oxygen level were normal. Id. at 7. She “stated” her weight and height. Id.
Physical exam of the eyes, as well as the constitutional, respiratory, and
cardiovascular systems, was unremarkable. Id. at 8. A rapid antigen test for
COVID-19 was negative. Id. at 9. She was instructed on “the need to continue
with protective measures and social distance, mask wearing, etc.” Id.
6 See also Ex. 13 at 26-28 (September 9, 2020, orthopedics pre-operative consultation regarding surgery
on her foot).
4

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 5 of 12
• During the same CFC urgent care encounter, Petitioner also received the
subject vaccine. The record reflects: “Site: Arm, Right Upper.” Ex. 12 at 7, 9.
Yukeenia Malcolm is listed as the “vaccinator.” Id. at 7. However, a physician
assistant (“PA”), Alison Broadbent, is listed as the provider and signed off on
the resulting records. Id.
• A separate “Data Portability” record reflects receipt of the subject vaccine, but
no site. Ex. 1 at 3. This record is uncertified, and its origin is unclear. See also
Exhibit List (ECF No. 36-1) (identifying Ex. 1 only as “Vaccination Record”).
• On September 24, 2020, Petitioner underwent surgery on her left foot with local
sedation. Ex. 13 at 52. Later that day, the orthopedic surgeon telephoned
Petitioner, answered unspecified questions, and encouraged her to call back
as needed. Id. at 30. Petitioner was prescribed aspirin, promethazine, and
Percocet (oxycodone-acetaminophen) for her post-operative foot pain. Id.
• No circumstances about the vaccination or the condition of Petitioner’s left
shoulder are reflected in the records of:
o An October 2, 2020, primary care appointment conducted via
telemedicine. Ex. 10 at 7-8. At this appointment, Petitioner’s chief
complaint was chills, for which the PA could not rule out COVID-19. Id.
at 8.
o October 2, 2020, and October 24, 2020, orthopedics appointments
following up on her recent foot surgery. Ex. 13 at 32-34, 35-37. At each
encounter, the current medications list reflected aspirin for pain. Id. at
32, 35. On physical exam, review of the musculoskeletal system was
limited to the lower extremities. Ex. 13 at 34, 37.7
7 It is also observed that within each orthopedics record (dating from December 2019 – February 2021,
including the specific records noted above), the “Review of Systems” section is positive only for
“Musculoskeletal: Back Pain.” See Ex. 13 at 9, 13, 17, 22, 26, 32, 35, 38, 40, 43, 45, 47, 49. It is likely that
the orthopedist did not utilize this section of the record, relying instead on the “chief complaint” and “HPI”
[history of present illness] sections.
5

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 6 of 12
o October 13, 2020, and October 22, 2020, chiropractic “routine
maintenance appointments” for established chief complaints of pain in
her neck, back, hip, and bilateral trapezius muscles. Ex. 28 at 13-14.
• Thirty-seven (37) days after vaccination, on October 29, 2020, Petitioner
attended another primary care appointment via telemedicine. Ex. 10 at 7. The
PA recorded that Petitioner “got flu shot 5 weeks ago, initially just felt sore;
since then has sharp pain in left shoulder region,” despite dry needling from a
chiropractor. Id. The PA did not address the shoulder in the (telemedicine)
exam, was unsure if the pain was “related to recent injection,” and recorded
that Petitioner would see her established orthopedist. Id.
• On November 3, 2020, Petitioner presented to her established orthopedist,
reporting that since her flu shot five weeks ago, she developed worsening pain
when doing certain movements with her left shoulder. Ex. 13 at 38. She
reported that the “usual” pain rated at 5/10, it was qualitatively “moderate,” and
it improved with rest. Id. On physical exam of the left shoulder, active range of
motion (“AROM”) was painful at the end ranges. Id. at 39. Hawk in’s and Neer’s
tests were positive and elicited pain. Id. The orthopedist assessed left shoulder
impingement syndrome and bursitis, for which he prescribed Voltaren
(diclofenac sodium extended-release tablets) and recommended a course of
physical therapy. Id.
• Petitioner subsequently saw various medical providers for left shoulder pain,
which she consistently related back to the flu vaccine. See, e.g., Ex. 4 (first PT
course from November 11 – 24, 2020); Ex. 9 (first PT course from December
16, 2020 – January 26, 2021); Ex. 4 at 8 (February 2, 2021, orthopedics
encounter and steroid injection); Ex. 9 at 47-49 (PT encounter documenting “no
pain” but continued muscle tightness); Ex. 15 (March 17, and March 27, 2021
PT sessions – representing the last formal medical treatment in evidence, just
over six months after vaccination).
• Petitioner submitted an archived version of CMC Urgent Care’s webpage as of
September 2020, which reflects that the facility was “doing almost exclusively
[COVID-19] testing and… working to accommodate a large volume of patients.”
6

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 7 of 12
Ex. 258 at 2. A patient seeking COVID-19 testing should “drive in and pull up
facing the Urgent Care,” call to report his or her arrival, and wait outside for any
needed paperwork and for the encounter, which would begin with vitals and the
COVID-19 test via nasal swab. Id. Afterwards, the provider on duty would come
out, complete an evaluation, and discuss the test results. Id. at 3-4. CMC
Urgent Care was continuing to offer other urgent care services including STD
testing and x-rays. Id. at 5-6. The webpage does not address the availability or
administration procedures for vaccines.
• In a declaration dated January 3, 2022, Petitioner recalled that on September
22, 2020, she had presented to CMC Urgent Care for the purpose of testing for
COVID-19. Ex. 23 at ¶¶ 1-2 4. Her husband had to work, so she drove herself
to the appointment, which was set up as a “drive-through testing center.” Id. at
¶ 3. Petitioner avers that she remained in her car, in the driver’s seat, during
the COVID-19 test and the flu shot. Id. at ¶ 6. This meant that both procedures
were administered through the driver’s side window, on her left-hand side, and
that the flu shot was administered in her left shoulder. Id. at ¶¶ 6-7.
• Petitioner’s husband, Andrew Axelrod, also offered a declaration dated
January 3, 2022. He recalls that on September 22, 2020, he went to work rather
than transporting or otherwise accompanying Petitioner to CMC Urgent Care.
Ex. 24 at ¶ 3. That evening, Petitioner described the encounter – including
receiving the COVID-19 test, as well as her flu vaccine in her left arm, while
remaining in her car. Id. at ¶ 4. He recalls that from that evening forward,
Petitioner began complaining about her left shoulder and that she began having
unusual pain and soreness shortly after the vaccination was given. Id. at ¶ 5.
IV. Analysis
A. Severity
In his preliminary review and analysis, Respondent identified a potential issue
regarding the statutory severity requirement. ECF No. 23, at 2, citing Section
8 The archived webpage is publicly available via “The Wayback Machine.” See Ex. 25 at 1 (citing
https://web.archive.org/web/20200902194902/https://www.urgentcarearlingtonva.com/). Petitioner
accessed the webpage as of September 2, 2020. Upon review, there were no relevant changes to the
webpage before it was next archived on October 2, 2020.
7

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 8 of 12
11(c)(1)(D)(i). While the parties opted not to brief severity, it is a threshold requirement
for eligibility under the Program. Black v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 546,
550 (1995) (reasoning that the “potential petitioner” must not only make a prima facie
case, but clear a jurisdictional threshold, by “submitting supporting documentation which
reasonably demonstrates that a special master has jurisdiction to hear the merits of the
case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted). Thus, I will address
it first.
Respondent noted that Petitioner’s declaration attesting to the severity
requirement is dated February 22, 2021 – which was only five months post-vaccination.
Status Report (ECF No. 23) at 2, citing Ex. 3 (ECF No. 8-4). While Respondent’s point is
accurate, the petition stated that Petitioner “continue[d] to suffer from SIRVA, and “ha[d]
an injury which is being treated and will more likely than not require more than six months
of treatment.” Petition (ECF No. 1) at ¶¶ 6, 8 (emphasis added). The circumstances in
which the Petition was filed are relevant – for at that time there was widespread concern
that SIRVA claims were to be eliminated from the Vaccine Injury Table. Id. at n. 1; see
also 85 FR 43794-01 (July 20, 2020, notice of proposed rulemaking); 86 FR 6249 (final
rule issued January 21, 2021, providing effective date of February 22, 2021); 86 FR 9308-
01 (Feb. 12, 2021 (notice delaying effective date until April 23, 2021). I am not inclined to
find that this error detracts from Petitioner’s credibility, see Response at n. 4, but it may
warrant some adjustment of her counsel’s associated attorneys’ fees and costs.
The medical records otherwise reflect that Petitioner sought regular medical care
for her left shoulder leading up to a February 2, 2021, subacromial steroid injection. Ex.
13 at 49-51. Seven days later at physical therapy, she reported no pain but “continue[d]
to demonstrate [muscular] tightness”; she was instructed to continue home exercises and
avoid strenuous activity. Ex. 9 at 47-48. Following an approximately one-month gap in
treatment, she reported that the cortisone shot “helped but [was] wearing off,” and she
was documented to have left shoulder pain (rated at 1-3/10) and objective limitations by
a new therapist on March 17 and March 27, 2021. See generally Ex. 15.
The filed evidence thus documents a shoulder injury lasting just over “6 months
after the administration of the vaccine,” even if Petitioner could not establish severity at
the date of the case’s initiation. (This same evidence also, however, documents a mild
SIRVA – something relevant to any damages to be awarded in this case.)
8

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 9 of 12
B. Situs
The parties primarily dispute whether Petitioner received the subject flu vaccine in
her left arm as alleged, rather than in her right arm as documented on the
contemporaneous medical records. Ex. 12 at 7, 9.
Medical records that are contemporaneous, clear, and consistent on a specific
factual issue are presumed to be reliable, and therefore usually accorded more weight
than later statements. Ms. Axelrod argues that this proposition does not apply in her case
because of the “Data Portability” record. Reply at 5 (citing Ex. 1 at 3). However, this record
is not clearly contemporaneous,9 and it omits the key fact of situs, rather than conflicting
with the CMC Urgent Care record on that point.
CMC Urgent Care created the single most contemporaneous medical record on
the disputed fact of situs – and it clearly points towards a finding of the right upper arm.
Response at 7 (citing Ex. 12 at 7-9). However, this record is not as persuasive as the
evidence in the prior case cited by Respondent. Response at 7, citing Schmidt v. Sec’y
of Health & Human Servs., No. 17-1530V, 2021 WL 5226494 (Fed. Cl. Spec. Mstr. Oct.
7, 2021). In Schmidt, upon declining to favor the petitioner’s later statements regarding
situs, I noted that the vaccine administration record was “completed by hand… signed by
both the vaccine administer and Petitioner… is consistent with the notes in [Mr. Schmidt’s]
electronic medical record [and…contains signatures from multiple vaccine administrators,
suggesting that the site of injection is not recorded in advance and requiring thought on
the part of the administrator.” Schmidt, 2021 WL 5226494, at *8. Mr. Schmidt did not
successfully challenge the reliability of the subject medical record, and moreover, it was
consistent with other records of earlier vaccinations. Id. at *8-9.
Here, by contrast, there is only one record indicating situs. This record was
electronic and most likely involved a prepopulated form (based on my experience
reviewing such records in deciding other SIRVA claims). It was also not signed by
Petitioner. The record does not indicate final approval by either the “vaccinator” or by
Petitioner herself.
9 Based on its heading and its contents, this record may instead represent a “snapshot” of the medical
history, for Petitioner to present to new providers.
9

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 10 of 12
Moreover, Petitioner has introduced a credible, specific reason to doubt the
reliability of the relevant medical record. CMC Urgent Care’s webpage from the time in
question reflects special procedures to facilitate an increased volume of patients and a
focus on COVID-19 testing. See generally Ex. 25. The webpage does not expressly state
that a patient must remain in his or her vehicle – but that would be feasible for the
procedures involved (temperature, pulse, oxygen, a limited physical exam, and a nasal
swab), as Petitioner has argued. Reply at 8. While CMC Urgent Care was offering certain
other procedures that would necessitate exiting the vehicle (e.g., x-rays), it was “doing
almost exclusively COVID-19 testing.” Ex. 25 at 2. Petitioner’s own primary purpose was
to obtain COVID-19 testing; receipt of the flu vaccine appears to have been a secondary
issue. Ex. 12 at 8. I find that the vaccine’s administration also would have been feasible
with Petitioner remaining in the driver’s seat of her car, exposing her left shoulder. That
would be consistent with Petitioner’s previous receipt of at least one prior vaccine in her
non-dominant left arm.
In addition, I accord some weight to the medical records in which Petitioner
reported that her recent vaccination caused her left shoulder pain – as “information
supplied to…. health professionals” intended to facilitate diagnosis and treatment.
Cucuras, 993 F.2d at 1528. And Petitioner has provided additional support by way of a
fact witness’s affidavit. Thus, upon consideration of all the available evidence, I find that
the September 22, 2020, flu vaccine was more likely administered in Ms. Axelrod’s left
arm, as alleged.
C. Onset
In his preliminary review and analysis, Respondent maintained that “the record
does not support” onset occurring within 48 hours after vaccination. Status Report (ECF
No. 23) at 2 and n. 1. Despite my invitation for briefing on any factual or legal issue raised
by Respondent, this was not addressed in the Motion or Response, only the Reply –
which does not address the cited physical therapy records. I will therefore review the
record as a whole.
I recognize that the first post-vaccination medical records do not contain any
information about the subject vaccination or Petitioner’s left shoulder injury. However,
those encounters were focused on other concerns, and some were inherently limited by
the telemedicine context. Additionally, those encounters were within approximately the
first month after vaccination – a period during which individuals often believe that they are
experiencing routine post-vaccination pain which will self-resolve.
10

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 11 of 12
Once Petitioner began to seek medical treatment for her shoulder injury, however,
she consistently faulted the vaccination. She first placed onset as generally “since” the
vaccination occurring five weeks earlier. Ex. 10 at 7; Ex. 13 at 38. Respondent only
identifies that the November 11, 2020, PT initial evaluation lists onset as “9/28/20.” Ex. 4
at 18. This date may have been generated from Petitioner’s history that “about 6 weeks
ago had a flu shot and ended up with bursitis.” Id. (emphasis added). However, the
vaccine was in fact administered seven weeks plus a day before the PT initial evaluation.
Thus, the recorded history is internally inconsistent – too much so to give it much weight
either way. A preponderance of the evidence ultimately supports onset as likely having
occurred within 48 hours of vaccination.
V. Conclusion and Scheduling Order
Based on recent data about the general processing times for SIRVA claims in
general, I expect that Respondent will complete his medical review and form his tentative
position in this case in approximately November 2022. I have not received both parties’
positions, and thus have yet to formally consider whether Petitioner’s injury meets all
criteria for a Table SIRVA. However, in the light of the above findings and my preliminary
review of the evidence overall, Petitioner shall proceed with preparing a demand for
Respondent’s consideration if she has not already done so. I understand that Respondent
cannot provide a response to this demand until he has formulated his position. However,
the parties should strive to be in a position to immediately discuss damages once
Respondent indicates he is amenable to consideration of Petitioner’s demand after
Respondent’s review is complete. In addition, it is sensible for Petitioner to calculate the
likely damages as quickly as possible in any case pending in SPU.
Accordingly:
• By no later than Tuesday, November 8, 2022, Petitioner shall file a status
report indicating the date by which she conveyed or intends to convey a
demand to Respondent.
• By no later than Monday, November 28, 2022, Respondent shall file a
status report updating on his tentative position. If Respondent intends to
either concede or explore informal resolution of the case, the status report shall
reflect the date by which Respondent responded, or intends to respond, any
demand received from Petitioner. If Respondent wishes to file his report
pursuant to Vaccine Rule 4(c), the status report shall propose a deadline for
doing so.
11

Case 1:21-vv-00980-UNJ Document 45 Filed 11/29/22 Page 12 of 12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_21-vv-00980-2
Date issued/filed: 2023-04-10
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/06/2023) regarding 53 Ruling on Entitlement, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00980-UNJ Document 55 Filed 04/10/23 Page 1 of 2
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-980V
UNPUBLISHED
KIMBERLY AXELROD, Chief Special Master Corcoran
Petitioner, Filed: March 6, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Uncontested;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Catherine Wallace Costigan, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 22, 2021, Kimberly Axelrod filed a petition2 for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (SIRVA) resulting from the adverse effects of the influenza (flu) vaccination
on September 22, 2020. See Amended Petition. Petitioner further alleges that the
vaccination was administered within the United States, her vaccine-related injuries have
lasted more than six months, and neither Petitioner, nor any other party, has ever brought
an action or received compensation in the form of an award or settlement for Petitioner’s
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (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 Petitioner filed a more detailed amended petition on January 3, 2022. See ECF No. 18.
3 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-00980-UNJ Document 55 Filed 04/10/23 Page 2 of 2
vaccine-related injuries. Amended Petition at 1, 5. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On October 25, 2022, I issued Findings of Fact concluding that the evidence
preponderantly demonstrates that Petitioner’s vaccination was administered in her left
arm, her injury persisted for more than six months, and onset occurred within 48 hours.
Findings of Fact at 2, 7-11; ECF No. 42.
On January 9, 2023, Respondent filed his Rule 4(c) report in which he states that
"he will not defend the case on other grounds during further proceedings before the
Office of Special Masters.” Respondent’s Rule 4(c) Report at 3. Respondent further
submits that “[P]etitioner has otherwise satisfied the criteria set forth in the Vaccine
Injury Table and the Qualifications and Aids to Interpretation (“QAI”) for a SIRVA claim.”
Specifically, Respondent states that “[P]etitioner had no recent history of pain,
inflammation, or dysfunction of her left shoulder; the onset of pain occurred within forty-
eight hours after receipt of an intramuscular vaccination; the pain was limited to the
shoulder in which the vaccine was administered; and, no other condition or abnormality,
such as brachial neuritis, has been identified to explain [P]etitioner’s right shoulder pain
. . . . In addition, [P]etitioner suffered the residual effects of her condition for more than
six months.” Id. Responded concludes, “based on the record as it now stands and
subject to his right to appeal the Findings of Fact, [R]espondent does not dispute that
[P]etitioner has satisfied all legal prerequisites for compensation under the Act.” Id.
(citing 42 U.S.C. § 300aa-13).
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_21-vv-00980-3
Date issued/filed: 2024-01-16
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 12/15/2023 ) regarding 61 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0980V
KIMBERLY AXELROD,
Chief Special Master Corcoran
Petitioner,
v. Filed: December 15, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Catherine Wallace Costigan, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 22, 2021, Kimberly Axelrod filed a petition2 for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the
“Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) following her receipt of an influenza (“flu”) vaccine on September
22, 2020. The case was assigned to the Special Processing Unit (“SPU”) of the Office of
Special Masters.
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 Petitioner filed a more detailed amended petition on January 3, 2022. See ECF No. 18.
3 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-00980-UNJ Document 68 Filed 01/16/24 Page 2 of 8
On October 25, 2022, I issued Findings of Fact concluding that Petitioner’s
vaccination was “more likely than not” administered in her left arm, that her injury
persisted for more than six months, and that onset occurred within 48 hours. Findings of
Fact (ECF No. 42). Respondent did not raise any further objections to the claim upon
filing the Rule 4(c) Report (ECF No. 50), and a Ruling on Entitlement was issued in March
2023 (ECF No. 53). However, the parties could not agree on the appropriate award of
damages and have submitted briefing on the subject. Petitioner’s Brief filed June 13, 2023
(ECF No. 58); Respondent’s Response filed Aug. 11, 2023 (ECF No. 59); Petitioner’s
Reply filed Sept. 8, 2023 (ECF No. 60). The matter is now ripe for adjudication. For the
reasons set forth below, I find that Petitioner is entitled to an award of $66,988.25,
representing $65,000.00 for actual pain and suffering, plus $1,988.25 for actual
unreimbursable expenses.
I. Authority
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 I and II of McKenna v. Sec’y
of Health & Hum. Servs., No. 21-0030V, 2023 WL 5045121, at *1-3 (Fed. Cl. Spec. Mstr.
July 7, 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 & Hum. 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.4
II. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Consideration of the Evidence
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 to her mental faculties or
capacity. I therefore analyze principally the severity and duration of Petitioner’s injury. In
4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
2

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 3 of 8
performing this analysis, I have reviewed the record as a whole, including all medical
records, declarations, affidavits, and all other filed evidence, plus the parties’ briefs and
other pleadings. I also have taken into account prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases, and I rely upon my experience adjudicating these
cases. However, I base my ultimate determination on the specific circumstances here.
Petitioner was thirty-eight (38) years old when vaccinated. She emphasizes that
she exercised regularly, including lifting weights and attending physical fitness classes.
Brief at 5 (citing Ex. 7 at 4; Ex. 13 at 32). She also received periodic chiropractic treatment,
with the last pre-vaccination encounter occurring in March 2020 (and hence several
months prior to it). Response at 3; see generally Ex. 28 at 15 – 46.
On September 22, 2020, Petitioner received the subject flu vaccine in her left non-
dominant shoulder, while sitting in her car outside of an urgent care clinic. Findings of
Fact (ECF No. 42) at 4 – 5, 9 - 10. Two days later, she underwent surgery on her left foot.
Ex. 13 at 52. To manage post-operative foot pain, she took Percocet (oxycodone-
acetaminophen) for 4 days, Promethazine for 6 days, and aspirin (325 mg) for 30 days.
Ex. 13 at 30. Petitioner’s left shoulder was not addressed at several subsequent
intervening treatment encounters, including an October 2nd primary care (“PCP”)
encounter via telemedicine for possible COVID-19 infection; October 2nd and 24th
orthopedics follow-up appointments for her foot; and October 13th and October 22nd
chiropractic “routine maintenance appointments.” Ex. 10 at 7 – 8; Ex. 13 at 30 – 35; Ex.
28 at 13 – 14.
When Petitioner first sought treatment for her shoulder thirty-seven (37) days post-
vaccination, on October 29th, she presented to her PCP, and she did not receive any
additional pain medication. Ex. 7 at 10. Five days later, her orthopedist recorded that
Petitioner’s pain was “moderate” (5/10) but worse with movement while improved with
rest. Ex. 13 at 38. On exam, Petitioner’s left shoulder range of motion (“ROM”) was normal
with pain at the endpoints, and Neer’s and Hawkins signs were positive. Id. at 39. The
orthopedist assessed left shoulder impingement syndrome and bursitis, for which he
recommended activity modification (to avoid aggravation of the shoulder), prescribed
Voltaren (diclofenac sodium 100mg extended-release tablets, once per day), and referred
to physical therapy (“PT”). Id.
At the November 11, 2020, PT initial evaluation at Virginia Sports Medicine
Institute, Petitioner reported that diclofenac sodium had “helped some”; her pain was
currently 1/10 and at times reached 4/10. Ex. 4 at 18. She had difficulty putting milk in the
fridge, Y press, and across the body movement. Id. Active ROM was decreased (flexion
3

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 4 of 8
and abduction 150 degrees, external rotation 75 degrees, internal rotation 70 degrees).5
Id. Strength was also slightly decreased (4/5, compared to 4+/5 in the non-affected arm).
Id. at 19. Her goals included returning to her regular exercise routine. Id. at 20. She
returned to this PT practice for additional formal sessions on November 13th, 17th, 20th,
and 24th. Id. at 10 – 17.
At a December 7th follow-up, the orthopedist proposed that Petitioner’s “left
shoulder injury pain is refractory to physical therapy with dry needling and [diclofenac
sodium].” Ex. 13 at 44. A December 17th MRI visualized rotator cuff tendinopathy, mild
subacromial subdeltoid bursitis, and possible adhesive capsulitis. Ex. 14 at 158. On
December 17th, the orthopedist recommended “continued PT with aggressive stretching.”
Ex. 13 at 46.
Petitioner identified a new facility, Pivot Physical Therapy, through internet
research. Ex. 9 at 112. At the December 18, 2020, initial evaluation, she reported mild
difficulty with opening jars, heavy household chores, cutting food with a knife, recreational
activities involving force or impact to the shoulder, and sleeping. Id. at 100. She rated her
pain as currently 0/10 and reaching 5/10. Id. at 101. Left shoulder active ROM was
normal, but shoulder abduction and end range flexion elicited pain. Id. at 102. Strength
was still decreased (3 to -4/5), and Neer’s and empty-can tests were positive. Id. at 103.
She returned for PT on December 23rd, 28th, and 30th, 2020, and January 4th, 7th, 11th,
13th, and 26th, 2021. Id. at 55 – 94. On January 18th, 23rd, and 29th, Petitioner received
massages to address shoulder pain (as well as hamstring tension). Ex. 21 at 3; see also
Ex. 13 at 47 – 48 (orthopedist’s record that the PT and massage were associated with
improvement and should be continued).
On February 2nd, 2021, the orthopedist assessed that Petitioner’s pain and function
were not substantially improved despite PT and massage, and he administered a sub-
acromial steroid injection within the glenohumeral joint. Ex. 13 at 49 – 50. At the
orthopedist’s direction,6 later that day, Petitioner returned to the Virginia Sports Medicine
Institute PT facility, where she rated her pain as currently 0/10 and reaching up to 3/10.
Ex. 4 at 8. The therapist recorded that she had decreased active ROM and weakness,
but she was able to participate in “light” PT and responded well to manual therapy. Id.
5 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in
abduction, 90 to 100 degrees in external rotation, and 70 to 90 degrees in internal rotation. Cynthia C.
Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80,
84, 88 (F. A. Davis Co., 5th ed. 2016), previously cited in Edminster v. Sec’y of Health & Hum. Servs., No.
19-0184V, 2023 WL 3059218, n. 3 (Fed. Cl. Spec. Mstr. April 24, 2023).
6 See Ex. 13 at 48 (plan for “cortisone injection with PT scheduled later in the day”).
4

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 5 of 8
On February 9th, Petitioner returned to the Pivot PT facility, now reporting that since
receiving the steroid injection she had experienced “no pain.” Ex. 9 at 47. During the
encounter, she was able to perform exercises, progressing to higher external rotation and
scapular strengthening with no pain. Id. She was counseled about her ongoing muscle
tightness, the need to avoid strenuous activity, and continuing her home exercise program
(“HEP”). Id. On February 15th, Petitioner received another massage for shoulder pain. Ex.
21 at 3.
On March 17th, Petitioner presented to a third PT practice, MMA & Sports Rehab,
for her left shoulder pain. Ex. 15 at 6. She reported: “s[eeing] physician after 5 weeks and
went to PT for 3 months and didn’t get better. Got cortisone shot at beginning of Feb
which helped but the shot is wearing off and feeling pain. Most pain holding things away
from body, sleeping on the shoulder. Has been able to continue strength training, but pain
with pressing.” Id. Her pain ranged from 1 – 3/10. Id. The therapist assessed that the left
shoulder had strength deficits, painful active ROM, and impingement, and educated
Petitioner on proper posture, avoiding aggravation, and adherence to a HEP. Id. at 8.
Petitioner attended one more PT session at MMA on March 27, 2020. Id. at 4-5.7
B. Analysis
The evidence reflects that Petitioner’s SIRVA was (fortunately) mild. While the five
medical encounters she experienced for other complaints within the first month of
vaccination did not prevent me from finding that Petitioner’s left shoulder pain began
within 48 hours post-vaccination (see Findings of Fact at 10 – 11), they support the
conclusion that her left shoulder pain was not a significant concern, and was initially
manageable with the aspirin (an over-the-counter medication), which she had started
taking in the context of her foot surgery. Only after the shoulder pain had persisted for 37
days did Petitioner go to her PCP (rather than say, an urgent care facility), receiving no
additional medication at that time. Her orthopedics initial evaluation reflects a pain rating
of 5/10. While the subsequent records state that diclofenac sodium (prescribed by the
orthopedist), PT, dry needling, massage, and activity modification did not significantly
improve her condition, Petitioner reported less severe and less constant pain. See, e.g.,
7 Petitioner suggested that she received additional treatment for her SIRVA from a chiropractor. Brief at 8,
9, 10, 13. But I agree with Respondent that the chiropractic records “provide scant information regarding
Petitioner’s left shoulder[.]” Response at n. 6. The records note a (presumably left-sided) deltoid lesion and
(presumably left shoulder) reduced range of motion, hindering Petitioner’s ability to exercise. Ex. 28 at 11.
But the records reflect palpation of bilateral muscles, myofascial release and trigger point therapy to “all
affected muscles,” and manipulation of the spine. They do not reflect any treatment specifically for the left
shoulder – rather than her pre-existing low back, mid-back, and neck issues, which fall more squarely within
a chiropractor’s expertise. See generally Ex. 28.
5

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 6 of 8
Ex. 4 at 18 (pain rating of 0 – 4 /10); Ex. 9 at 101 (0 – 5/10). Four months into the course,
she received one steroid injection which further reduced her pain. See, e.g., Ex. 4 at 8 (0
– 3/10); Ex. 9 at 47 (“no pain”); Ex. 15 at 6 (1 – 3/10). Her ROM and strength were initially
reduced, but also improved over time. She received a total of 4 massages and 18 formal
PT sessions, concluding on March 27, 2020, just over six months post-vaccination. This
treatment course demonstrates an injury which is sufficiently severe to be eligible for
compensation under the Program, but it was nevertheless limited in scope and duration.
I also recognize that the SIRVA necessitated modification of her exercise program, which
was important to Petitioner’s physical and mental wellbeing – but nothing else in the
existing record substantiates the personal impact her injury had on her life.
Petitioner argues that she should be awarded $90,000.00 for her actual pain and
suffering, favorably comparing herself to the petitioners in Bruegging, Schandel, Gentile,
and Miller.8 Brief at 10 – 14. Those cases are helpful as a starting point – each features
an initial treatment delay, a treatment course concluding within approximately one year,
and a lack of surgical intervention, and thus all reflect a mild to moderate injury, as is true
here. But the Schandel petitioner’s first medical encounter occurred just 15 days post-
vaccination (with no intervening encounters for unrelated complaints), and that individual
initially suffered “significant levels of pain and severely limited ROM for four to five months
after vaccination,” ultimately attending a total of 39 PT sessions. 2019 WL 5260368, at
*12. Her injury was also assessed to be “severe” notwithstanding her refusal of a steroid
injection (allegedly due to a fear of needles after experiencing the SIRVA). Id. at *4, 7.
Petitioner further contends her circumstances are comparable to Bruegging,
Gentile, and Miller because each featured two steroid injections. Brief at 11, 13, 14. But
the record reveals Petitioner received just one steroid injection. Otherwise, these cases
are also distinguishable. For instance, Miller featured an earlier presentation for treatment
(16 days). 2023 WL 4312920, at *1. Petitioner also suggests that the Miller petitioner’s
“MRI reflected no abnormalities,” but that decision makes clear that the claimant “had an
MRI of her humerus only, and only x-ray imaging of her shoulder, which suggests any
comparison of findings is not useful in determining Ms. Miller’s pain and suffering.” Id. at
*6.
8 Bruegging v. Sec’y of Health & Hum. Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May
13, 2019) (awarding $90,000.00 for actual pain and suffering); Schandel v. Sec’y of Health & Hum. Servs.,
No. 16-0225V, 2019 WL 5260368, at *3 (Fed. Cl. Spec. Mstr. July 8, 2019) ($85,000.00); Gentile v. Sec’y
of Health & Hum. Servs., No. 16-980V, 2020 WL 3618909 (Fed. Cl. Spec. Mstr. June 5, 2020) ($85,000.00);
Miller v. Sec’y of Health & Hum. Servs., No. 20-0959V, 2023 WL 4312920 (Fed. Cl. Spec. Mstr. June 1,
2023) ($80,000.00).
6

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 7 of 8
Bruegging featured less delay in seeking treatment (24 days, and one intervening
primary care encounter for possible bronchitis), with pain “severe enough that she
received” a steroid injection at that first encounter; only “a one-week period of relief due
to the cortisone injection”; and eventual acceptance of a second steroid injection and
formal PT. 2019 WL 2620957, at *9. The MRI that claimant received also showed
“moderate to severe” tendinitis, Id., compared to the mild to moderate findings in Ms.
Axelrod’s case. And while Gentile involved a longer treatment delay (49 days, with two
intervening encounters for diarrhea and headaches), that petitioner received her first
steroid injection at her first encounter, and the second injection six months post-
vaccination. 2020 WL 3618909, at *2. The Gentile decision also took into account proof
of the emotional distress on the injured party not apparent in this case (“relinquishing her
beloved dog and the demise of her marriage”). Id. at *14.
In contrast, Respondent argues for a lesser award of $52,500.00, maintaining that
Petitioner’s case is more comparable to Merwitz,9 in which the petitioner “received one
steroid injection, was provided one prescription, and attended seventeen (17) PT
sessions. Ms. Merwitz’s treatment lasted approximately eight months.” Response at 6 –
7. The MRI findings from Merwitz also appear to be very similar – tendinitis, and mid to
moderate subacromial and subdeltoid bursitis. 2022 WL 17820768, at *5. However,
Petitioner sought treatment more quickly (37 days, versus 91 in Merwitz), reported
relatively higher and more consistent pain, had more significantly reduced ROM, and
despite improvement, continued to experience pain with motion and weakness at the end
of her formal course of treatment (just six months post-vaccination). Those factors warrant
an upward adjustment from the sum allowed in Merwitz.
Overall based on a review of the case evidence, the parties’ briefing, and
comparison to past reasoned opinions, I find that Petitioner’s actual pain and suffering
warrants an award of $65,000.00.
Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $66,988.25, representing $65,000.00 for actual pain and
suffering, plus $1,988.25 for actual unreimbursable expenses.10
9 Merwitz v. Sec’y of Health & Hum. Servs., No. 20-1141V, 2022 WL 17820768 (Fed. Cl. Spec. Mstr. Nov.
14, 2022) ((awarding $50,000.00 for actual pain and suffering).
10 The parties have stipulated to the expenses. Brief at 1; Response at 2.
7

Case 1:21-vv-00980-UNJ Document 68 Filed 01/16/24 Page 8 of 8
This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11 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.
8