VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01971
Package ID: USCOURTS-cofc-1_21-vv-01971
Petitioner: Jane Baker
Filed: 2021-10-06
Decided: 2025-05-23
Vaccine: influenza
Vaccination date: 2020-10-06
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 77472

AI-assisted case summary:
Jane Baker filed a petition on October 6, 2021, alleging that an influenza vaccine administered in her left shoulder on October 6, 2020, caused a Table SIRVA. She had previously received compensation for a different SIRVA claim involving a 2014 flu vaccination, and respondent challenged the new claim.

The entitlement record showed left shoulder symptoms after the 2020 vaccination, including an October 13, 2020 primary-care encounter noting burning pain radiating from the deltoid toward the collarbone. Respondent argued that the symptoms were not limited to the shoulder, that her prior SIRVA history undermined the claim, and that MRI findings were unremarkable. Special Master Horner found the Table SIRVA requirements satisfied, crediting the onset evidence and concluding that the symptoms were sufficiently shoulder-limited and not better explained by another condition. Entitlement was granted on January 17, 2025.

Damages were litigated. Ms. Baker's treatment included physical therapy and injections, with a course the Special Master compared to moderate SIRVA cases. She also sought compensation for lost leave and out-of-pocket costs. On May 23, 2025, Special Master Horner awarded $77,472.07: $75,000.00 for actual pain and suffering, $310.60 for actual loss of earnings, and $2,161.47 for actual unreimbursable expenses. A later fee decision concerned attorney fees and costs only. Ms. Baker was represented by David John Carney of Green & Schafle LLC.

Theory of causation field:
Influenza vaccine on October 6, 2020 causing Table SIRVA. ENTITLEMENT GRANTED; COMPENSATED. Respondent contested shoulder-limited symptoms, prior SIRVA history, and MRI findings. SM Daniel T. Horner credited onset and medical-record evidence, found symptoms sufficiently limited to the vaccinated shoulder, and found no better alternative cause. Treatment included PT and injections; damages decision compared her course to moderate SIRVA awards. Petition filed October 6, 2021; entitlement January 17, 2025; damages May 23, 2025. Award $77,472.07: $75,000 pain and suffering, $310.60 lost earnings, $2,161.47 unreimbursable expenses. Attorney: David John Carney, Green & Schafle LLC.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01971-0
Date issued/filed: 2025-02-11
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 1/17/2025) regarding 42 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (cd) Service on parties made.
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Case 1:21-vv-01971-UNJ Document 44 Filed 02/11/25 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1971V
Filed: January 17, 2025
Special Master Horner
JANE BAKER,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner.
Madelyn Weeks, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On October 6, 2021, petitioner, Jane Baker, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10, et seq. (2012), alleging that she
suffered a Table Injury of a shoulder injury related to vaccine administration (“SIRVA”)
as a result of an influenza (“flu”) vaccination she received on October 6, 2020. (ECF
No. 1.) For the reasons set forth below, I conclude that petitioner is entitled to
compensation.
I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
received it in the United States; suffered a serious, long-standing injury; and has
1 Because this document 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 document 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.
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received no previous award or settlement on account of the injury. Finally – and the key
question in most cases under the Program – the petitioner must also establish a causal
link between the vaccination and the injury. In some cases, the petitioner may simply
demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be
shown that the vaccine recipient suffered an injury of the type enumerated in the
“Vaccine Injury Table,” corresponding to the vaccination in question, within an
applicable time period following the vaccination also specified in the Table. If so, the
Table Injury is presumed to have been caused by the vaccination, and the petitioner is
automatically entitled to compensation, unless it is affirmatively shown that the injury
was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A)-(B);
§ 300aa-11(c)(1)(C)(i); § 300aa-14(a).
As relevant here, the Vaccine Injury Table lists SIRVA as a compensable injury if
it occurs within ≤48 hours of administration of a flu vaccine. § 300aa-14(a) as amended
by 42 CFR § 100.3. Table Injury cases are guided by a statutory “Qualifications and
aids in interpretation” (“QAI”), which provides more detailed explanation of what should
be considered when determining whether a petitioner has actually suffered an injury
listed on the Vaccine Injury Table. Id. To be considered a Table SIRVA petitioner must
show that his/her injury fits within the following definition:
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 . . . 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
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radiculopathy, brachial neuritis, mononeuropathies, and any other
neuropathy).
42 CFR § 100.3(c)(10).
Alternatively, if no injury falling within the Table can be shown, the petitioner
could still demonstrate entitlement to an award by instead showing that the vaccine
recipient’s injury or death was caused-in-fact by the vaccination in question.
§ 300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(ii). The petitioner must demonstrate that the
vaccine was “not only [the] but-for cause of the injury but also a substantial factor in
bringing about the injury.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315,
321 (Fed. Cir. 2010) (quoting Shyface v. Sec'y of Health & Human Servs., 165 F.3d
1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec'y of Health & Human Servs., 451 F.3d
1352, 1355 (Fed. Cir. 2006). Thus, to successfully demonstrate causation-in-fact,
petitioner bears a burden to show: (1) a medical theory causally connecting the
vaccination and the injury; (2) a logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing of proximate temporal
relationship between vaccination and injury. Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274, 1278 (Fed. Cir. 2005).
For both Table and Non–Table claims, Vaccine Program petitioners bear a
“preponderance of the evidence” burden of proof. § 300aa-13(1)(a). That is, a
petitioner must offer evidence that leads the “trier of fact to believe that the existence of
a fact is more probable than its nonexistence before [he] may find in favor of the party
who has the burden to persuade the judge of the fact's existence.” Moberly, 592 F.3d at
1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct. 476, 486 (1984) (mere
conjecture or speculation is insufficient under a preponderance standard). Proof of
medical certainty is not required. Bunting v. Sec'y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program
award based solely on his assertions; rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa-13(a)(1).
Cases in the Vaccine Program are assigned to special masters who are
responsible for “conducting all proceedings, including taking such evidence as may be
appropriate, making the requisite findings of fact and conclusions of law, preparing a
decision, and determining the amount of compensation, if any, to be awarded.” Vaccine
Rule 3(b)(1). Special masters must ensure each party has had a “full and fair
opportunity” to develop the record. Vaccine Rule 3(b)(2). However, special masters are
empowered to determine the format for taking evidence based on the circumstances of
each case. Vaccine Rule 8(a); Vaccine Rule 8(d). Special masters are not bound by
common law or statutory rules of evidence but must consider all relevant and reliable
evidence in keeping with fundamental fairness to both parties. Vaccine Rule 8(b)(1).
The special master is required to consider “all [] relevant medical and scientific evidence
contained in the record,” including “any diagnosis, conclusion, medical judgment, or
autopsy or coroner’s report which is contained in the record regarding the nature,
causation, and aggravation of the petitioner’s illness, disability, injury, condition, or
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death,” as well as the “results of any diagnostic or evaluative test which are contained in
the record and the summaries and conclusions.” § 300aa-13(b)(1). The special master
is required to consider all the relevant evidence of record, draw plausible inferences,
and articulate a rational basis for the decision. Winkler v. Sec’y of Health & Human
Servs., 88 F.4th 958, 963 (Fed. Cir. 2023) (quoting Hines ex rel. Sevier v. Sec’y of
Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)).
II. Procedural History
Petitioner initially filed medical records, an affidavit, and a statement of
completion in October of 2021. (ECF Nos. 6, 8; Exs. 1-7.) She filed additional medical
records and an amended statement of completion in July of 2022. (ECF Nos. 15-16;
Exs. 8-12.) On September 23, 2022, respondent filed a status report identifying
additional records that he identified as necessary to evaluate the case. (ECF No. 17.)
Petitioner filed additional evidence in December of 2022, including photos of petitioner’s
vaccination site, work conference, etc.; emails regarding her injury; and affidavits from
petitioner’s niece, husband, coworkers, friend, and yoga instructor. (ECF Nos. 20-21;
Exs. 13-25.) Petitioner filed a second amended statement of completion on January 5,
2023. (ECF No. 22.) The parties then engaged in settlement discussions between July
and September of 2023 before reaching an impasse. (ECF Nos. 26-29.) Petitioner
then filed additional medical records on October 14, 2023. (ECF No. 30; Exs. 26-27.)
Petitioner filed a Motion for a Ruling on the Record and Brief in Support of
Damages on October 14, 2023. (ECF No. 31.) Before respondent could file his
response, petitioner filed a Motion to Supplement her Motion for a Ruling on the Record
and Brief in Support of Damages, specifically to include damages for lost wages and
out-of-pocket medical expenses. (ECF No. 34.) On February 9, 2024, respondent filed
a response to both petitioner’s Motion to Supplement and Motion for a Ruling on the
Record and Brief in Support of Damages, arguing that petitioner had failed to satisfy the
criteria for a SIRVA Table claim. (ECF No. 35.) Petitioner filed a reply on March 1,
2024. (ECF No. 36.)
The case was reassigned to the undersigned on March 26, 2024. (ECF No. 39.)
I subsequently issued a scheduling order indicating that, based on my review, the case
appeared ripe only for resolution of entitlement. (ECF No. 40.) I instructed the parties
to confirm that the case is ripe for resolution of entitlement based on the previously filed
motion for a ruling on the record, which they did, but noted that I would not reach the
question of damages absent additional briefing. (ECF Nos. 40-41; NON-PDF
Scheduling Order, filed April 25, 2024.) Accordingly, I have determined that the parties
have had a full and fair opportunity to present their cases and that it is appropriate to
resolve entitlement on the existing record. See Vaccine Rule 8(d); Vaccine Rule
3(b)(2); see also Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366
(Fed. Cir. 2020) (noting that “special masters must determine that the record is
comprehensive and fully developed before ruling on the record”). Accordingly, this
matter is now ripe for resolution.
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III. Factual History
a. As reflected in the medical records
Before receiving the vaccine at issue in this case, petitioner saw her physicians
for regular preventative care appointments. (Ex. 3, pp. 68-81, 124-28, 152-69, 185-90,
284-93, 313-19, 513-18, 585-95, 735-40, 924-36, 985-95, 1027-44, 1110-24, 1050-56,
1225-29; Ex. 5, pp. 70-74, 83-84.) In 2014, petitioner began taking Fosamax and
Vitamin D for low bone density. (Ex. 3, pp. 170-72.)
On October 15, 2014, petitioner received a flu vaccine, and, on November 20,
2014, she reported left arm muscle pain that began two days after her flu shot. (Ex. 3,
pp. 191-192, 230.) Petitioner presented to her primary care physician, George Zotalis,
M.D., on December 29, 2014, for worsening left arm pain. (Id. at 234.) Petitioner
underwent an x-ray of her shoulder that showed a “nodular density in the left perihilar
region.” (Id. at 268.) Petitioner was diagnosed with frozen shoulder and was treated
with a glenohumeral injection into the joint. (Id. at 251.) Petitioner continued to report
pain and seek treatment throughout 2015. (Id. at 394-402, 418-26, 455-63, 473-83.)
Petitioner’s treatment included an additional shoulder injection, a Medrol pak, Voltaren
gel, and a physical therapy referral. (Id. at 418-26, 449-53, 456.) Petitioner also
underwent an ultrasound of the left shoulder that showed a “small articular sided
Subscapularis tear, tendon bulk and contour preserved.” (Id. at 521.) Petitioner was
last treated for this injury on November 23, 2015. (Id. at 547, 585, 770, 1110.) She
received compensation through this program for the injury as a “SIRVA.” Baker v. Sec’y
of Health & Human Servs., No. 15-775V, 2015 WL 7428556 (Fed. Cl. Spec. Mstr. Oct.
30, 2015).
Petitioner received the vaccine at issue in this case on October 6, 2020. (Ex. 1,
p. 1.) A week later, on October 13, 2020, petitioner reported to physician’s assistant
(PA) Jordan Bright with left shoulder pain lasting about a week. (Ex. 5, p. 8.) She
reported that a burning pain began right after she received the flu vaccine and radiated
from her deltoid to her collarbone. (Id.) Petitioner reported her history related to her
shoulder and explained that she was taking ibuprofen which offered some relief. (Id.)
The physical exam of her left shoulder revealed no trapezius trigger points in the
deltoid, biceps tendon, or acromioclavicular joint. (Id. at 9.) Her range of motion with
abduction was intact, however, her range of motion on flexion was limited to 100
degrees. (Id. at 9.) Petitioner was referred to physical therapy and prescribed
naproxen for pain. (Id. at 9.)
Petitioner presented to physical therapy for an initial evaluation on October 14,
2020. (Ex. 4, pp. 9-11, 19-22.) She reported that she had inflammation and burning
pain in her shoulder following her flu vaccine. (Id. at 9, 19.) Petitioner reported her
history of a similar injury in 2014, explaining that she experienced pain and limited
range of motion for a duration of 14 months. (Id. at 19.) She noted that her pain
currently fluctuated between 3/10 and 7/10. (Id.) Petitioner’s physical exam revealed
reduced range of motion and strength. (Id. at 20.) Petitioner’s physical therapist
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explained that petitioner had “signs and symptoms of left shoulder adhesive capsulitis.”
(Id.) During petitioner’s next physical therapy session on October 16, 2020, petitioner
reported that she was performing her at-home physical therapy program and noted
slight improvement to her pain. (Id. at 23.) While her assessment showed some
improvement with range of motion, the physical therapist reported that the petitioner still
suffered from significant range of motion restrictions. (Id.) Petitioner attended physical
therapy four more times in October of 2020. (Id. at 26-37.) She reported marginal
increases in her range of motion. (Id.)
On October 28, 2020, petitioner had an appointment at Geisinger Sports
Medicine with Matthew McElroy, D.O. (Ex. 3, p. 1165.) Petitioner reported continued
pain and her physical exam revealed limited range of motion, tenderness in her left
biceps tendon on palpation, limited supraspinatus strength of the left shoulder, and left
shoulder impingement with positive Neer and Hawkins tests. (Id. at 1165, 1167.)
Petitioner received a subacromial bursa injection. (Id. at 1169.) On the same day,
petitioner underwent an x-ray that showed “[m]ild osteoarthritis of the acromioclavicular
joint.” (Id. at 1190.) Two days later, on October 30, 2020, petitioner had a physical
therapy appointment and reported that the injection provided no relief. (Ex. 4, p. 35.)
Petitioner continued physical therapy throughout November of 2020, attending
seven appointments. (Ex. 4, pp. 38-59.) During this time, petitioner reported increased,
intense pain. (Id.) On November 13, 2020, petitioner saw PA Bright for left arm bursitis.
(Ex. 5, p. 35.) Petitioner reported about 70% improvement with physical therapy,
however, petitioner noted continued pain, and requested to be placed on Naproxen. (Id.
at 35, 65.) Petitioner’s physical exam continued to reveal limited range of motion. (Id.
at 36.)
Petitioner did not attend another physical therapy appointment until March 5,
2021 with Adam Wolfe, PT. (Ex. 6, p. 56-58.) During her appointment, petitioner
reported a history of left frozen shoulder following flu vaccination. (Id. at 56.) Petitioner
reported that she tried physical therapy, however, the pain in her left shoulder persisted.
(Id.) She described her current pain level as mild but noted that her mobility also
remained limited. (Id.) She explained she was returning to physical therapy to attempt
to regain full mobility. (Id.) She reported that her pain fluctuated between a 6/10 and a
2/10. (Id.) Petitioner’s strength in her shoulder abduction, shoulder external rotation,
shoulder scaption, and shoulder external rotation at 90 degrees were all decreased in
her left shoulder. (Id. at 57.) Additionally, petitioner’s examination revealed positive
Hawkins/Kennedy and Neers tests in her left shoulder. (Id.) PT Wolfe noted that
petitioner “has signs and symptoms of left shoulder impingement following left shoulder
adhesive capsulitis.” (Id. at 58.)
Petitioner attended nine physical therapy appointments throughout the rest of
March 2021, during which petitioner gradually improved. (Ex. 6, pp. 31-50, 53-54.)
During her physical therapy session on March 29, 2021, petitioner reported that her
shoulder was “feeling a lot better, but continu[ed] to be missing the ‘last 10% of motion.’”
(Id. at 31.) Petitioner’s physical assessment showed that her active and passive range
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of motion along with her shoulder strength remained limited. (Id. at 32.) Her
Hawkins/Kennedy and Neer tests remained positive. (Id. at 33.) On that same day,
petitioner underwent an MRI of her left shoulder that was unremarkable and revealed
“[n]o rotator cuff tear or MR findings of adhesive capsulitis.” (Ex. 12, p. 9.)
On April 7, 2021, petitioner had a follow up appointment with D.O. McElroy. (Ex.
8, p. 6.) Petitioner reported that her shoulder was feeling much better, and her range of
motion was nearly normal. (Id.) She credited physical therapy as significantly helping
her condition. (Id.) Upon physical exam, petitioner’s range of motion was bilateral and
equal, however, her left biceps tendon was “tender with palpation,” she had weakness
in her supraspinatus muscle, and her biceps and labral tests were positive on the left.
(Id. at 6-7.) She was assessed with adhesive capsulitis of the left shoulder and biceps
tendinitis. (Id. at 7.)
Petitioner continued physical therapy, attending nine sessions throughout April
2021, and continued to refill her Naproxen prescription. (Ex. 6, pp. 9-30; Ex. 8, p. 24.)
Throughout these sessions, petitioner continued to report significant improvement. (Ex.
6, pp. 9-30.) On April 30, 2021, petitioner was reevaluated by her physical therapist and
reported 95% improvement. (Id. at 9.) Her physical exam still revealed some active
and passive decreased range of motion and decreased strength; however, all her
impingement and rotator cuff tests were negative. (Id. at 9-11.) Petitioner attended
physical therapy one more time on May 3, 2021, before being discharged on May 6,
2021. (Id. at 5-8; Ex. 5, pp. 114-16.) Petitioner reported significant improvement,
however, her symptoms did persist at her discharge. (Ex. 5, pp. 114-16.)
On August 5, 2021, petitioner saw PA Julie Farrow, for right hand pain,
numbness, tingling, and mechanical symptoms. (Ex. 12, p. 17.) Petitioner reported
locking of her right ring finger and thumb, and then tingling and numbness in her right
index and long finger. (Id.) She was no longer able to passively extend her ring finger.
(Id. at 17.) Petitioner was diagnosed with carpal tunnel syndrome in her right wrist and
trigger finger in her right ring finger. (Id. at 21.) Petitioner opted to undergo surgery.
(Id.) Petitioner underwent an endoscopic carpal tunnel release and a release of the
right ring trigger finger and trigger thumb on August 16, 2021. (Ex. 10, pp. 15-18.)
Petitioner attended occupational therapy after her surgery. (Ex. 12, pp. 57-59.)
b. As reflected in affidavits and other evidence
In addition to her medical records, petitioner has filed several other pieces of
evidence, including affidavits, photographs, and e-mails. (Exs. 13-25.) I have reviewed
this evidence. However, in light of the particular issues raised by the parties and the
analysis that follows, it is not necessary to address these pieces of evidence in detail.
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IV. Party Contentions
In her motion, petitioner argues that the evidence of record preponderantly
establishes that she received a flu vaccine in her left shoulder on October 6, 2020, that
she suffered onset of left shoulder pain within 48 hours of vaccination, and that her
injury meets all of the QAI requirements for a Table SIRVA. (ECF No. 31, p. 1.)
Petitioner requests a ruling in her favor finding she has suffered a Table SIRVA. (Id. at
2.) Petitioner does not present any alternative argument based on causation-in-fact.
In his response, respondent raises two issues with respect to petitioner’s alleged
Table SIRVA. First, respondent contends that petitioner experienced symptoms that
were not limited to her affected shoulder. Specifically, respondent cites petitioner’s
October 13, 2020 primary care encounter as noting intense burning radiating from her
deltoid to her collar bone area. (ECF No. 35, p. 14.) Second, respondent stresses that
this case represents an unusual circumstance, because this petitioner was previously
compensated for a SIRVA in the same shoulder relative to a prior vaccination. (Id.)
Because petitioner retained counsel within a month of the vaccination at issue in this
case, respondent urges that the subjective complaints in petitioner’s medical records
should be treated as “made-for-litigation” statements, which, citing several cases, he
argues have historically carried little weight. (Id. at 14-15.) Respondent argues that the
outcome in this case should be based on objective evidence and stresses that
petitioner’s left shoulder MRI was unremarkable, with no findings to support the
presence of either a SIRVA or intense shoulder pain. (Id. at 15-16.) Accordingly,
respondent requests that this case be dismissed. (Id. at 16.)
In reply, petitioner argues the cases that respondent cited with respect to “made-
for-litigation” statements are not on point, because petitioner’s case does not rest on
subjective statements made solely for litigation. (ECF No. 36, p. 3.) Petitioner stresses
that there is not a shred of evidence that petitioner’s subjective complaints to her
treating physicians were made for litigation. (Id. at 3-4.) Further, petitioner never
attempted to hide the fact of her previously successful SIRVA claim. (Id. at 4.)
Petitioner observes that respondent’s argument amounts to mere insinuation, especially
given that respondent has not taken any steps seeking to litigate the question. (Id.) In
any event, petitioner’s subjective reports to her treating physicians were also supported
by physical exam findings. (Id. at 5.) In that regard, petitioner urges the court to take
notice of the fact that petitioner’s treating physicians consistently linked her shoulder
injury to her flu vaccination. (Id.) Petitioner notes that treating physician opinions are
generally considered “quite probative.” (Id. at 5-6 (quoting Andreu v. Sec’y of Health &
Human Servs., 569 F.3d 1367, 1375 (Fed. Cir. 2009)).)
With respect to whether petitioner’s symptoms were confined to her shoulder,
petitioner cites a number of prior decisions by special masters for the proposition that
the SIRVA QAI are intended to rule out other sources of injury and that stray references
to pain beyond the shoulder are not necessarily dispositive of whether a SIRVA is
present. (ECF No. 36, pp. 8-13.) Petitioner stresses that the notation cited by
respondent is the only reference to radiating symptoms within petitioner’s medical
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records and that her medical records substantiate that her symptoms relate to a
musculoskeletal injury to the shoulder. (Id. at 13-14.) Petitioner contends that
respondent’s response has otherwise failed to raise any issue with the QAI criteria for a
Table SIRVA, thereby conceding the other criteria are met. (Id. at 14-16.) Petitioner
stresses that an abnormal MRI is not a requirement under the table definition of SIRVA.
(Id. at 16-17.)
V. Analysis
a. QAI Criterion (i) - No history of pain, inflammation or dysfunction of
the affected shoulder
Respondent stresses in his motion response that petitioner had a prior history of
a left shoulder SIRVA in 2014 for which she received compensation. (ECF No. 35, p.
14.) Petitioner likewise acknowledges this history. (ECF No. 36, p. 4.) Importantly,
however, the first SIRVA criterion addresses prior shoulder dysfunction “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). Petitioner argues in her
motion that her prior 2014 SIRVA “was completely healed” and that she had no issues
with her left shoulder at the time of her 2020 flu vaccination. (ECF No. 31, p. 12.)
Respondent has not raised any argument to the contrary. Although respondent raises
the fact of petitioner’s prior SIRVA in his motion response, he does so to stress that
“[a]s a previous recipient of compensation from the Vaccine Program, petitioner is not
ignorant of the requirements for an award of compensation.” (ECF No. 35, p. 14.) In
his recitation of the facts, respondent acknowledges that, despite seeking care for other
unrelated issues, petitioner did not report any left shoulder pain between November 23,
2015, and October 13, 2020. (Id. at 3-4.) Accordingly, there is preponderant evidence
that petitioner was free of any history of pain, inflammation or dysfunction of her left
shoulder that would explain her alleged condition, as required by the first SIRVA
criterion.
b. QAI Criterion (ii) - Pain occurs within the specified time-frame (48
hours)
Petitioner was vaccinated on October 6, 2020, and first presented for care a
week later on October 13, 2020. (Ex. P1, p. 1; Ex. P5, p. 8.) At that time, she reported
that she had been experiencing shoulder pain for a week and explained that it started
“right after” the flu vaccination. (Ex. P5, p. 8.) Although respondent argues that
petitioner’s statements to her physicians should not carry significant weight, he does not
raise any specific argument that petitioner’s shoulder pain arose at any time outside of
the appropriate 48-hour post-vaccination time-frame. (ECF No. 35, pp. 14-16.) To the
extent respondent implies based on petitioner’s MRI that she may not have experienced
shoulder pain at all, this is not persuasive in light of petitioner’s overall course of
treatment. Petitioner’s initial physical therapy evaluation included objective findings of
reduced strength and reduced range of motion sufficient to corroborate her subjective
complaints of a bothersome shoulder injury. (Ex. 4, p. 20.) Her later orthopedic
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evaluation included a physical exam that found slightly limited abduction and external
rotation along with positive Hawkins and Neer tests. (Id. at 14.) Petitioner was
assessed by her orthopedist as having impingement syndrome and administered
treatment in the form of a therapeutic injection. (Id. at 15.) Accordingly, there is
preponderant evidence that petitioner experienced onset of left shoulder pain within 48
hours of her October 6, 2020 flu vaccination, as required by the second SIRVA criterion.
c. QAI Criterion (iii) - Pain and reduced range of motion are limited to
the shoulder in which the intramuscular vaccine was administered
Respondent stresses that when petitioner first presented for care of her alleged
SIRVA, she reported that she “[f]elt intense burning which she never had before. Is
radiating from deltoid into collar bone area.” (ECF No. 35, p. 14; Ex. 5, p. 8.)
Accordingly, respondent argues that petitioner’s pain was not limited to her left shoulder
as required by the third SIRVA criterion. (ECF No. 35, p. 14.) As petitioner notes,
however, I have previously explained at greater length in a prior decision that “the
gravamen of this requirement is to guard against compensating claims involving
patterns of pain or reduced range of motion indicative of a contributing etiology beyond
the confines of a musculoskeletal injury to the affected shoulder.” Grossmann v. Sec’y
of Health & Human Servs., No. 18-13V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr.
Feb. 15, 2022) (citing Werning v. Sec’y of Health & Human Servs., No. 18-267V, 2020
WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020).) Although petitioner
characterized her pain this way in her initial encounter with her primary care provider,
the provider’s record does not indicate that he placed any significance on that report.
(Ex. 5, pp. 9-10.) Respondent does not cite any instance where this report was
repeated or ever analyzed as diagnostically relevant by any treating physician.
Respondent’s recitation of the facts otherwise reflects a course of treatment for a
musculoskeletal injury to the left shoulder and respondent does not suggest that the
treating physicians ever suspected any etiology beyond the confines of the shoulder.
(ECF No. 35, pp. 4-8.) Accordingly, there is preponderant evidence that petitioner’s
pain and reduced range of motion were limited to her affected shoulder within the
meaning of the third SIRVA criterion. Accord Grossmann, 2022 WL 779666, at *15.
d. QAI Criterion (iv) - No other condition or abnormality is present that
would explain the patient’s symptoms – and factor(s) unrelated to
vaccination
The fourth SIRVA criterion requires that there be no other condition or
abnormality present that would otherwise explain the petitioner’s symptoms. Moreover,
once a petitioner has met her initial burden of proof in demonstrating the presence of a
Table injury, respondent may still demonstrate that the injury was nonetheless caused
by a factor unrelated to vaccination. § 300aa-13(a)(1)(B); Deribeaux v. Sec’y of Health
& Human Servs., 717 F.3d 1363, 1367 (Fed. Cir. 2013). Respondent has not raised
any argument suggesting that petitioner’s alleged SIRVA may be explained by any other
condition or abnormality. (ECF No. 35, pp. 14-16.) My own review of the medical
history has not otherwise found any condition or abnormality concerning as a potential
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cause of petitioner’s condition. Accordingly, there is preponderant evidence that
petitioner’s clinical presentation is free of any other condition or abnormality that would
explain her alleged SIRVA, as required by the fourth SIRVA criterion. Moreover,
petitioner having prima facie demonstrated the presence of a Table SIRVA, respondent
has not otherwise demonstrated that petitioner’s injury is due to factors unrelated to
vaccination.
e. Respondent’s additional argument
Notwithstanding the above, respondent raises two additional arguments that he
suggests as overriding considerations that should cast doubt on the idea that any injury
was present at all. As explained above, he contends that (1) petitioner’s subjective
complaints in her medical records should be dismissed merely as statements made for
litigation and (2) petitioner’s MRI, which was unremarkable, constitutes objective
evidence casting doubt on the presence of any shoulder injury. (ECF No. 35, pp. 14-
16.) I have considered these arguments but find them unpersuasive.
Although respondent is correct that there are circumstances in which statements
can be made for litigation purposes even when directed to a physician, respondent
casts his suspicion too widely in applying that concern to this case. Respondent cites
four prior decisions, all of which are distinguishable. (ECF No. 35, pp. 14-15.) Three of
the four cases cited by respondent involved situations where later, conflicting reports to
medical providers were discounted relative to more contemporaneous records, in part,
because the petitioner had developed a motivation relative to litigation. Duda v. Sec’y
of Health & Human Servs., No. 19-31V, 2021 WL 4735857, at * 8 (Fed. Cl. Spec. Mstr.
Aug. 10, 2021); Vashro v. Sec’y of Health & Human Servs., No. 20-1849V, 2023 WL
6643108, at *3 (Fed. Cl. Spec. Mstr. Sept. 5, 2023); Goodgame v. Sec’y of Health &
Human Servs., 157 Fed. Cl. 62, 71 (2021). In all of these cases, the petitioner’s
motivation was just one factor in an overall weighing of evidence that simply favored
more contemporaneous records as more likely to be accurate, which is not a
remarkable proposition in this program. In this case, however, petitioner’s most
contemporaneous records support her allegation.
In the fourth case cited by respondent, Rastetter v. Secretary of Health & Human
Services., the petitioner had previously stopped seeking treatment, the medical record
at issue explicitly indicated that the evaluation had been sought for litigation only, and
the petitioner refused any follow-up treatment for that very reason. No. 19-1840V, 2023
WL 5552317, at *10 (Fed. Cl. Spec. Mstr. Aug. 3, 2023). Thus, it was observed that
“[w]ithout a bona fide ongoing treatment relationship, the credibility and reliability of the
history provided by petitioner and his mother is not enhanced merely because it was
recorded by a medical provider.” Id. Again, however, that is not the situation in this
case. Petitioner’s medical records reflect ongoing care and treatment with supportive
physical examination and medical evaluation. Only respondent’s own imputation
suggests the lack of a bona fide treatment relationship. Respondent effectively seeks to
penalize petitioner merely for being aware of this program.
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Seeking to buttress his skepticism of petitioner’s subjective complaints of pain,
respondent further argues that, because petitioner’s MRI was unremarkable, there is a
lack of objective evidence of any actual shoulder injury. This is unpersuasive for
several reasons. First, petitioner’s MRI is not the only objective evidence of record. As
explained above, petitioner had physical exam findings that objectively confirmed she
suffered reduced strength, reduced range of motion, and was positive for signs of
impingement based on special testing. Second, petitioner’s orthopedist did not treat the
MRI as dispositive. After reviewing the MRI results, he diagnosed petitioner with
ongoing biceps tendinitis for which continued physical therapy was recommended. (Ex.
7, pp. 1-2.) And third, the QAI requirements for a Table SIRVA place no specific
burden on petitioner to demonstrate abnormal findings on MRI or to even substantiate
any particular diagnosis relative to the complained of shoulder symptoms.
VI. Conclusion
After weighing the evidence of record within the context of this program, I find by
preponderant evidence that petitioner suffered a Table Injury of SIRVA resulting from
the flu vaccination she received on October 6, 2020. Accordingly, petitioner is entitled
to compensation for her SIRVA. A separate damages order will be issued.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-01971-1
Date issued/filed: 2025-06-17
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 05/23/2025) regarding 48 DECISION AWARDING DAMAGES. Signed by Special Master Daniel T. Horner. (cd) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-01971-UNJ Document 52 Filed 06/17/25 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1971V
Filed: May 23, 2025
Special Master Horner
JANE BAKER,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner.
Madelyn Weeks, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 6, 2021, petitioner, Jane Baker, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10, et seq. (2012), alleging that she
suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an
influenza (“flu”) vaccination she received on October 6, 2020. (ECF No. 1.) On January
17, 2025, petitioner was found entitled to compensation for her SIRVA. (ECF No. 42.)
For the reasons set forth below, I now conclude that petitioner is entitled to
compensation for her damages in the amount of $77,472.07.
I. Procedural History
This case was initially assigned to the Special Processing Unit (“SPU”). (ECF
No. 10.) Petitioner filed medical records, an affidavit, and a statement of completion in
October of 2021. (ECF Nos. 6, 8; Exs. 1-7.) She filed additional medical records and
an amended statement of completion in July of 2022. (ECF Nos. 15-16; Exs. 8-12.) On
1 Because this document 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 document 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.
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Case 1:21-vv-01971-UNJ Document 52 Filed 06/17/25 Page 2 of 15
September 23, 2022, respondent filed a status report providing an informal assessment
of the claim and identifying potential issues, including petitioner’s history of a left
shoulder injury for which she previously received compensation. (ECF No. 17.)
Petitioner filed additional evidence in December of 2022, including photos of petitioner’s
vaccination site, work conference, etc.; emails regarding her injury; and affidavits from
petitioner’s niece, husband, coworkers, friend, and yoga instructor. (ECF Nos. 20-21;
Exs. 13-25.) Petitioner filed a second amended statement of completion on January 5,
2023. (ECF No. 22.) The parties then engaged in settlement discussions between July
and September of 2023 before reaching an impasse. (ECF Nos. 26-29.) Petitioner
then filed additional medical records on October 14, 2023. (ECF No. 30; Exs. 26-27.)
Petitioner filed a Motion for a Ruling on the Record and Brief in Support of
Damages on October 14, 2023. (ECF No. 31.) Before respondent could file his
response, petitioner filed a Motion to Supplement her Motion for a Ruling on the Record
and Brief in Support of Damages, specifically to include damages for lost wages and
out-of-pocket medical expenses. (ECF No. 34.) On February 9, 2024, respondent filed
a response to both petitioner’s Motion to Supplement and Motion for a Ruling on the
Record and Brief in Support of Damages, arguing that petitioner had failed to satisfy the
criteria for a SIRVA Table claim. (ECF No. 35.) Petitioner filed a reply on March 1,
2024. (ECF No. 36.)
The case was reassigned to the undersigned on March 26, 2024. (ECF Nos. 38-
39.) I subsequently issued a scheduling order indicating that, based on my review, the
case appeared ripe only for resolution of entitlement. (ECF No. 40.) I instructed the
parties to confirm that the case is ripe for resolution of entitlement based on the
previously filed motion for a ruling on the record, which they did, but noted that I would
not reach the question of damages absent additional briefing. (ECF Nos. 40-41; Non-
PDF Scheduling Order, filed Apr. 25, 2024.)
On January 17, 2024, I issued a Ruling on Entitlement, finding petitioner entitled
to compensation for her SIRVA. (ECF No. 42.) Thereafter, I gave the parties a brief
opportunity to attempt an informal resolution of damages; however, they were unable to
do so. (ECF No. 45.) I directed respondent to file a brief regarding the appropriate
amount of damages and permitted petitioner a reply. (ECF Nos. 46-47.)
Accordingly, I have determined that the parties have had a full and fair
opportunity to present their cases and that it is appropriate to resolve damages on the
existing record. See Vaccine Rule 8(d); Vaccine Rule 3(b)(2); see also Kreizenbeck v.
Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that
“special masters must determine that the record is comprehensive and fully developed
before ruling on the record”).
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II. Factual History
a. As reflected in the medical records
Petitioner received the vaccine at issue in this case on October 6, 2020.2 (Ex. 1,
p. 1.) A week later, on October 13, 2020, petitioner reported to physician assistant
(“PA”) Jordan Bright with left shoulder pain lasting about a week. (Ex. 5, p. 8.) She
reported that a burning pain began right after she received the flu vaccine and radiated
from her deltoid to her collarbone. (Id.) Petitioner reported her history related to her
shoulder and explained that she was taking ibuprofen which offered some relief. (Id.)
The physical exam of her left shoulder revealed no trapezius trigger points in the
deltoid, biceps tendon, or acromioclavicular joint. (Id. at 9.) Her range of motion with
abduction was intact; however, her range of motion on flexion was limited to 100
degrees. (Id.) Petitioner was referred to physical therapy and prescribed naproxen for
pain. (Id.)
Petitioner presented to physical therapy for an initial evaluation on October 14,
2020. (Ex. 4, pp. 9-11, 19-22.) She reported that she had inflammation and burning
pain in her shoulder following her flu vaccine. (Id. at 9, 19.) She noted that her pain
currently fluctuated between 3/10 and 7/10. (Id. at 19.) Petitioner’s physical exam
revealed reduced range of motion and strength. (Id. at 20.) Petitioner’s physical
therapist explained that petitioner had “signs and symptoms of left shoulder adhesive
capsulitis.” (Id.) During petitioner’s next physical therapy session on October 16, 2020,
petitioner reported that she was performing her at-home physical therapy program and
noted slight improvement to her pain. (Id. at 23.) While her assessment showed some
improvement with range of motion, the physical therapist reported that the petitioner still
suffered from significant range of motion restrictions. (Id.) Petitioner attended physical
therapy four more times in October of 2020. (Id. at 26-37.) She reported marginal
increases in her range of motion. (Id.)
On October 28, 2020, petitioner had an appointment at Geisinger Sports
Medicine with Matthew McElroy, D.O. (Ex. 3, p. 1165.) Petitioner reported continued
pain, and her physical exam revealed limited range of motion, tenderness in her left
biceps tendon on palpation, limited supraspinatus strength of the left shoulder, and left
shoulder impingement with positive Neer and Hawkins tests. (Id. at 1165, 1167.)
Petitioner received a subacromial bursa injection. (Id. at 1169.) On the same day,
petitioner underwent an x-ray that showed “[m]ild osteoarthritis of the acromioclavicular
joint.” (Id. at 1190.) Two days later, on October 30, 2020, petitioner had a physical
therapy appointment and reported that the injection provided no relief. (Ex. 4, p. 35.)
Petitioner continued physical therapy throughout November of 2020, attending
seven appointments. (Ex. 4, pp. 38-59.) During this time, petitioner reported an
2 She had a prior SIRVA in the same arm, for which she was previously found entitled to compensation.
Baker v. Sec’y of Health & Human Servs., No. 15-775V, 2015 WL 7428556 (Fed. Cl. Spec. Mstr. Oct. 30,
2015).
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increase in the intensity of her pain. (Id.) On November 13, 2020, petitioner saw PA
Bright for left arm bursitis. (Ex. 5, p. 35.) Petitioner reported about 70% improvement
with physical therapy, however, petitioner noted continued pain and requested to be
placed on naproxen. (Id.) Petitioner’s physical exam continued to reveal limited range
of motion. (Id. at 36.)
Petitioner did not attend another physical therapy appointment until her March 5,
2021 session with Adam Wolfe, PT. (Ex. 6, pp. 56-58.) During her appointment,
petitioner reported a history of left frozen shoulder following flu vaccination. (Id. at 56.)
Petitioner reported that she tried physical therapy, however, the pain in her left shoulder
persisted. (Id.) She described her current pain level as mild but noted that her mobility
also remained limited. (Id.) She explained she was returning to physical therapy to
attempt to regain full mobility. (Id.) She reported that her pain fluctuated between a
6/10 and a 2/10. (Id.) Petitioner’s strength in her shoulder abduction, shoulder external
rotation, shoulder scaption, and shoulder external rotation at 90 degrees were all
decreased in her left shoulder. (Id. at 57.) Additionally, petitioner’s examination
revealed positive Hawkins/Kennedy and Neer tests in her left shoulder. (Id.) PT Wolfe
noted that petitioner “has signs and symptoms of left shoulder impingement following
left shoulder adhesive capsulitis.” (Id. at 58.)
Petitioner attended nine physical therapy appointments throughout the rest of
March of 2021, during which petitioner gradually improved. (Ex. 6, pp. 31-50, 53-54.)
During her physical therapy session on March 29, 2021, petitioner reported that her
shoulder was “feeling much better, but continues to be missing the ‘last 10% of motion.’”
(Id. at 31.) Petitioner’s physical assessment showed that her active and passive range
of motion along with her shoulder strength remained limited. (Id. at 32.) Her
Hawkins/Kennedy and Neer tests remained positive. (Id. at 33.) On that same day,
petitioner underwent an MRI of her left shoulder that was unremarkable and revealed
“[n]o rotator cuff tear or MR findings of adhesive capsulitis.” (Ex. 12, p. 9.)
On April 7, 2021, petitioner had a follow up appointment with Dr. McElroy. (Ex. 8,
p. 6.) Petitioner reported that her shoulder was feeling much better, and her range of
motion was nearly normal. (Id.) She credited physical therapy as significantly helping
her condition. (Id.) Upon physical exam, petitioner’s range of motion was bilateral and
equal, however, her left biceps tendon was “tender to palpation,” she had weakness in
her left supraspinatus muscle, and her biceps and labral tests were positive on the left.
(Id. at 6-7.) Dr. McElroy noted that petitioner’s adhesive capsulitis of the left shoulder
had resolved and assessed her with biceps tendinitis. (Id. at 7.)
Petitioner continued physical therapy, attending nine sessions throughout April of
2021, and continued to refill her naproxen prescription. (Ex. 6, pp. 9-30; Ex. 8, p. 24.)
Throughout these sessions, petitioner continued to report significant improvement. (Ex.
6, pp. 9-30.) On April 30, 2021, petitioner was reevaluated by her physical therapist and
reported 95% improvement. (Id. at 9.) Her physical exam still revealed some active
and passive decreased range of motion and decreased strength; however, all her
impingement and rotator cuff tests were negative. (Id. at 9-11.) Petitioner attended two
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physical therapy sessions in May of 2021, before being discharged on May 6, 2021. (Id.
at 5-8; Ex. 5, pp. 114-16.) Petitioner reported significant improvement, however, her
symptoms did persist at her discharge. (Ex. 5, p. 114: Ex. 6, p. 5.)
Petitioner returned to Dr. McElroy on August 4, 2021. (Ex. 26, pp. 20-22.) She
had “fairly good range of motion” as well as normal strength but did have some pain
with extreme ranges of motion, which was causing her to sleep differently. (Id. at 20.)
She also reported experiencing some numbness in her right hand at night that she
believed to be positional. (Id.) Dr. McElroy assessed petitioner with chronic
impingement of the left shoulder and tendinopathy of the left biceps tendon. (Id. at 21.)
She had an ultra-sound guided therapeutic (Ropivacaine) injection at this encounter.
(Id. at 21-22.)
On August 5, 2021, petitioner saw PA Julie Farrow, for right hand pain,
numbness, tingling, and mechanical symptoms. (Ex. 12, p. 17.) Petitioner reported
locking of her right ring finger and thumb and tingling and numbness in her right index
and long finger. (Id.) She was no longer able to passively extend her ring finger. (Id.)
Petitioner was diagnosed with carpal tunnel syndrome in her right wrist and trigger
finger in her right ring finger. (Id. at 21.) Petitioner opted to undergo surgery. (Id.)
Petitioner underwent an endoscopic carpal tunnel release and a release of the right ring
trigger finger and trigger thumb on August 16, 2021. (Ex. 10, pp. 15-18.) Petitioner
attended occupational therapy after her surgery. (Ex. 12, pp. 57-59.)
Petitioner had another follow up with Dr. McElroy on August 24, 2022, at which
time it was noted that she had responded “very well” to the prior therapeutic injection.
(Ex. 26, p. 213.) At this encounter, she received another therapeutic (Lidocaine)
injection. (Id. at 216.)
b. As reflected in affidavits and other evidence
In addition to her medical records, petitioner has filed several witness
statements. Candace Baker, petitioner’s niece, recalled petitioner experiencing a new
onset of worsening pain during the three months following her vaccination, such that it
was painful “doing normal things like lifting objects or even walking my dog.” (Ex. 20, ¶
6.) Paul Baker, Jr., petitioner’s husband, recalled that, although petitioner was initially
able to continue yoga following her vaccination, she was experiencing debilitating pain
during the 2020 holiday season and thereafter, noting as of October 2022 she was still
unable to sleep on her left side. (Ex. 21, ¶¶ 8-9.) Denise Lewis, a coworker, primarily
recalled that petitioner had been asymptomatic prior to vaccination. (Ex. 22, ¶¶ 4-5.)
Jeffrey Turner, a coworker, recalled petitioner being in pain from the time of her
vaccination throughout the remainder of the academic semester. (Ex. 23, ¶ 6.) Kara
VanBuskirk, a coworker, likewise recalled that petitioner experienced a new onset of
shoulder symptoms following her vaccination. (Ex. 24, ¶¶ 4-6.) Donelle Bryson,
petitioner’s cousin and yoga teacher, explained that, although petitioner continued to
attend yoga classes after receiving her flu shot, she had difficulty with some poses and
required modifications. (Ex. 25, ¶¶ 4, 6.)
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As discussed further below, petitioner also filed several documents in support of
her claims for loss of earnings and out-of-pocket expenses. Regarding her loss of
earnings, she filed a letter by the chair of her department at Bucknell University, where
petitioner works as an administrative assistant, explaining petitioner’s hourly pay rate
and her employer’s policy regarding the payout of leave upon separation or retirement.
(ECF No. 34, p. 8.) She also filed a document tiled “Absence Jane K Baker, Bucknell
University,” with columns documenting the date, type (sick, vacation, or “FMLA”),
number of hours, and status (i.e., approved), of various leave requests between
October of 2020 and August of 2022. (Id. at 9-12.) Finally, she filed several credit card
statements and invoices regarding her claimed expenses. (Id. at 13-34.)
III. Analysis
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.” § 300aa-15(a)(4). Additionally, a petitioner may
recover for unreimbursable expenses and loss of earning capacity. § 300aa-15(a)(1)-
(3). In this case, petitioner asserts she should recover all three categories of damages.
(ECF Nos. 31, 34, 47.) Petitioner bears the burden of proof with respect to each
element of compensation requested. Brewer v. Sec’y of Health & Human Servs., No.
93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
a. Pain and Suffering
There is no mathematic formula for assigning a monetary value to a person’s
pain and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No.
04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (reasoning that
“[a]wards for emotional distress are inherently subjective and cannot be determined by
using a mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-
172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (concluding that “the
assessment of pain and suffering is inherently a subjective evaluation”). In general,
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. I.D.,
2013 WL 2448125, at *9 (citing McAllister v. Sec’y of Health & Human Servs., No. 91-
1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and
remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
Special masters may also consider prior awards when determining what
constitutes an appropriate award of damages. See, e.g., Doe 34 v. Sec’y of Health &
Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in
the chief special master’s decision to refer to damages for pain and suffering awarded in
other cases as an aid in determining the proper amount of damages in this case”);
Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(explaining that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
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claims). Importantly, however, while potentially persuasive, decisions regarding prior
awards are not binding. See Nance v. Sec’y of Health & Human Servs., No. 06-0730V,
2010 WL 3291896, at *8 (Fed. Cl. Spec. Mstr. July 30, 2010); Hanlon v. Sec’y of Health
& Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are neither bound by
their own decisions nor by cases from the Court of Federal Claims, except, of course, in
the same case on remand.”), aff’d, 191 F.3d 1344 (Fed. Cir. 1999).
Based on prior experience within the SPU as of the beginning of 2025, the
overall spectrum of proffered SIRVA awards extends from $5,000.00 to $1,845,047.00.
Timberlake v. Sec’y of Health & Human Servs., No. 20-1905V, 2025 WL 721730, at *3
(Fed. Cl. Spec. Mstr. Feb. 19, 2025). Eliminating outliers, the first and third quartiles
span from $60,000.00 to $107,987.07. (Id.) The median is $80,000.00. (Id.) Damages
awards based on decisions by special masters run slightly higher, with the first and third
quartile range being from $67,305.16 to $125,000.00 and a median of $89,500.00. (Id.)
Petitioner initially argued that she should be awarded $75,000.00 for actual and
projected pain and suffering (ECF No. 31, p. 35), but later revised her assessment
upward, arguing in reply to respondent’s argument that she should be awarded between
$75,000.00 and $80,000.00. (ECF No. 36, p. 24.) She cited the following prior cases
as comparable: Belka v. Sec’y of Health & Human Servs., No. 20-0585V, 2022 WL
4717891 (Fed Cl. Spec. Mstr. Sept. 1, 2022) (awarding $68,000.00 for pain and
suffering); Alcantara v. Sec’y of Health & Human Servs., No. 20-0990V, 2022 WL
2800868 (Fed. Cl. Spec. Mstr. June 10, 2022) (awarding $70,000.00 for pain and
suffering); Hartman v. Sec’y of Health & Human Servs., No. 19-1106V, 2022 WL
444456 (Fed. Cl. Spec. Mstr. Jan. 14, 2022) (awarding $75,000.00 for pain and
suffering); Miller v. Sec’y of Health & Human Servs., No. 20-604V, 2022 WL 3641716
(Fed. Cl. Spec. Mstr. July 22, 2022) (awarding $75,000.00 for pain and suffering);
Moreland v. Sec’y of Health & Human Servs., No. 18-1319V, 2022 WL 10469047 (Fed.
Cl. Spec. Mstr. Sept. 2, 2022) (awarding $75,000.00 for pain and suffering); Mantagas
v. Sec’y of Health & Human Servs., No. 20-1720V, 2023 WL 4573855 (Fed. Cl. Spec.
Mstr. June 14, 2023) (awarding $75,000.00 for pain and suffering); Smith v. Sec’y of
Health & Human Servs., No. 21-409V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Dec. 11,
2023) (awarding $77,000.00 for pain and suffering); Starnes v. Sec’y of Health &
Human Servs., No. 20-1514V, 2023 WL 8110730 (Fed. Cl. Spec. Mstr. Oct. 13, 2023)
(awarding $78,000.00 for pain and suffering); Eichorn v. Sec’y of Health & Human
Servs., No. 20-154V, 2023 WL 8525127 (Fed. Cl. Spec. Mstr. Nov. 7, 2023) (awarding
$78,000.00 for past pain and suffering as well as an award for future pain and
suffering); Bergstrom v. Sec’y of Health & Human Servs., No. 19-0784V, 2021 WL
5754968 (Fed. Cl. Spec. Mstr. Nov. 2, 2021) (awarding $80,000.00 for pain and
suffering). (ECF No. 31, pp. 31-35; ECF No. 36, pp. 19-24; ECF No. 47, pp. 10-32.)
Before entitlement was resolved, respondent initially asserted (arguendo) that
petitioner should be awarded only $46,000.00 for pain and suffering. (ECF No. 35, p.
16.) At that time, he cited the following cases as comparable: Piccolotti v. Sec’y of
Health & Human Servs., No. 20-0135V, 2023 WL 3165383 (Fed. Cl. Spec. Mstr. May 1,
2023) (awarding $45,000.00 for pain and suffering); Merwitz v. Sec’y of Health &
7

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Human Servs., No. 20-1141V, 2022 WL 17820768 (Fed. Cl. Spec. Mstr. Nov. 14, 2022)
(awarding $50,000.00 for pain and suffering). (Id. at 23-25.) After entitlement was
granted, respondent revised his assessment to $60,000.00, though his analysis
remained substantially the same. (ECF No. 46, p. 7.) Respondent then cited the
following cases as comparable: Allner v. Sec’y of Health & Human Servs., No. 19-
1048V, 2022 WL 6962656 (Fed. Cl. Spec. Mstr. Sept. 9, 2022) (awarding $60,000.00
for pain and suffering); Krebs v. Sec’y of Health & Human Servs., No. 21-484V, 2024
WL 4930680 (Fed. Cl. Spec. Mstr. Oct. 31, 2024) (awarding $60,000.00 for pain and
suffering). (Id. at 7-9.)
I am mindful of prior decisions regarding damages for SIRVA, including those
cited by the parties. However, I do not merely rely on any prior decision to determine
the amount of petitioner’s damages in this case. Instead, I have reviewed previous
SIRVA awards, the arguments presented by the parties, and the totality of the
evidentiary record. The primary considerations informing pain and suffering in SIRVA
cases is the severity and duration of the shoulder pain. Numerous aspects of a
petitioner's medical history potentially speak to these issues, including the total duration
of the petitioner’s pain, the total duration of petitioner’s reduced range of motion, the
length of time over which the petitioner actively treated the condition, the duration and
outcome of physical therapy, the modalities of treatment (e.g., steroid injections,
surgeries, etc.), the severity of MRI or surgical findings, subjective reports of pain levels,
and the ultimate prognosis.
In this case, petitioner explains that she “has treated her left shoulder injury for
over twenty-two months, or nearly two years, with two cortisone injections, one of which
was ultrasound-guided, a lidocaine injection, prescription medication, an MRI, and two
rounds of physical therapy totaling thirty-four (34) sessions.” (ECF No. 31, p. 35; ECF
No. 36, p. 24.) Respondent agrees with petitioner’s basic explanation of her treatment
history – a 22-month course of treatment with prescription medication, three therapeutic
injections, and thirty-four physical therapy sessions. (ECF No. 46, p. 7.) However,
respondent contends that petitioner experienced only “low to moderate” levels of
shoulder pain and only a slight limitation in her range of motion and stresses that there
are gaps in treatment totaling 18 months. (Id. at 7-10; ECF No. 35, p. 18.) Petitioner
contends that her gap in treatment is at least partly explained by the Covid-19 pandemic
(ECF No. 47, p. 4); however, respondent also stressed that petitioner returned to her
desired activities following her physical therapy discharge in May of 2021 and saw
significant relief from her August 2021 steroid injection. (ECF No. 35, pp. 18-19.)
I am not persuaded that the cases cited by respondent are comparable to this
case. The Krebs petitioner had an overall course of 18 months of SIRVA symptoms
characterized as mild to moderate. 2024 WL 4930680, at *9. Like this petitioner, he
had multiple therapeutic injections. Id. Unlike this petitioner, however, he had only two
physical therapy appointments. Id. Although he had a home exercise plan, he was
noncompliant. Id. Thus, the duration of the Krebs petitioner’s injury was shorter, and
he had less robust treatment. Although the Allner petitioner had a much longer overall
course of injury, she sought conservative treatment only intermittently and had
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significant gaps in treatment suggestive of only a mild injury. 2022 WL 6962656, at *6.
The award in that case was further informed by a delay in initially seeking treatment and
resort to only eight physical therapy sessions. Id. at *5-6. By contrast, two cases cited
by petitioner are reasonably analogous to the instant case. The Miller petitioner had an
initial delay in treatment suggestive of a mild to moderate injury, but ultimately had a 17-
month long course of treatment, inclusive of twenty-one physical therapy encounters
and three steroid and trigger point injections, but with a seven-month gap in treatment.
2022 WL 3641716, at *5-6, *5 nn.10-11. The Moreland petitioner underwent treatment
for approximately 18 months, including forty-three physical therapy sessions and three
steroid injections. 2022 WL 10469047, at *13, *13 nn.22, 24. I find the remainder of the
cited cases less helpful. In particular, while the Eichorn petitioner similarly had thirty-
nine sessions of physical therapy and two cortisone injections, she consistently treated
her condition over the course of a year and ultimately had a 6% permanent disability
that not only factored into past pain and suffering, but also supported an award for
future pain and suffering. 2023 WL 8525127, at *5-7.
Considering the evidence of record and the arguments presented by the parties,
and for the reasons stated above, I find that a reasonable award for petitioner’s past
pain and suffering is $75,000.00.
b. Loss of Earnings
Under the Vaccine Act, compensation for actual and anticipated loss of earnings
may be awarded “[i]n the case of any person who has sustained a vaccine-related injury
after attaining the age of 18 and whose earning capacity is or has been impaired by
reason of such person’s vaccine-related injury for which compensation is to be
awarded.” § 300aa-15(a)(3)(A). Petitioner argues that she should be awarded
$10,500.54 for loss of earnings because she missed 414 hours of work between
October 14, 2020, and August 24, 2022, as a direct result of her SIRVA.3 (ECF No. 34,
pp. 1-2.) Petitioner reasons that her time off, though paid time off, still had monetary
value because her employer would have paid out accrued time upon her retirement.
(Id.) Respondent raises three arguments in opposition. (ECF No. 35, pp. 25-27.) First,
respondent appears to argue as a threshold matter that petitioner has not demonstrated
an impairment in her earning capacity. (Id. at 25.) Second, respondent argues that it
would be speculative to base a loss of earnings award on a future payout of accrued
leave. (Id. at 26.) And, third, respondent argues that petitioner has overstated the
leave that can be attributed to her SIRVA. (Id. at 26-27.) I am persuaded by
respondent’s objection to the scope of petitioner’s loss of earnings claim, but not his
objection to the availability of this type of award.
3 In her motion, petitioner indicates that she is requesting compensation relative to 150 hours of missed
work; however, a review of the hours she has included in her request confirms that her tally of the hours
at issue is incorrect. (ECF No. 34, pp. 5-7.) Moreover, given her hourly pay rate (id. at 8), the requested
amount of $10,500.54 is more consistent with a request based on 414 hours.
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Petitioner, who is paid as an hourly employee, filed a print-out of a Table titled
“Absence Jane K Baker, Bucknell University.” (ECF No. 34, pp. 9-12.) The document
contains various leave requests (sick, vacation, and FMLA) from October 14, 2020
through August 24, 2022, totaling 414 hours of leave. (Id.) However, petitioner’s
absence sheet does not indicate the reason for any of her leave requests. Although
many of the leave requests do correlate to medical encounters for petitioner’s SIRVA
within her otherwise filed medical records, respondent stresses that many others do not.
(ECF No. 35, pp. 26-27.) Of particular concern, a substantial number of leave hours
recorded reflect FMLA leave beginning on August 16, 2021, which correlates with the
date of an unrelated carpal tunnel release surgery. (Ex. 10, pp. 15-17.) Even after
respondent raised issues pertaining to the scope of petitioner’s request, she did not
address this issue. (ECF No. 47, pp. 34-36.) In light of these concerns, merely
providing a list of dates of approved leave falls short of preponderantly demonstrating
that the absences would not have occurred but for her SIRVA. And, of course,
petitioner bears the burden of proof with respect to the damages she claims. Brewer,
1996 WL 147722, at *22-23. Petitioner has not filed any evidence explaining how the
list was generated, explaining how specific leave requests were selected for inclusion in
her claim, or otherwise averring that it accurately reflects leave related to petitioner’s
SIRVA.4 Accordingly, petitioner’s loss of earnings claim is limited in scope to the
absences respondent agrees are associated with her injury. Respondent indicates that
he has determined that 74 hours of sick or vacation time (totaling $1,863.62) can be
correlated to documented treatment of petitioner’s SIRVA. (ECF No. 35, pp. 26-27.)
As petitioner notes, the Chief Special Master has previously concluded that a
loss of earnings can encompass the use of paid time off necessitated by a vaccine
injury, though only if the petitioner can establish that she would have later been paid for
any unused leave. (ECF No. 47, p. 36 (discussing Gross v. Sec’y of Health & Human
Servs., No. 19-0835V, 2021 WL 2666685 (Fed. Cl. Spec. Mstr. Mar. 11, 2021), mot. rev.
denied 154 Fed. Cl. 109 (2021)); see also Eilan v. Sec’y of Health & Human Servs., No.
15-381V, 2024 WL 4222583, at *6 (Fed. Cl. Spec. Mstr. Aug. 15, 2024) (the
undersigned citing approvingly to Gross for the broader proposition that loss of earnings
can include future benefits). In this case, the evidence petitioner submitted does
demonstrate that under her own employer’s policy any accrued sick time that she
maintained as of her retirement would be paid out without any overall cap at a minimum
rate of one day per every six days of unused sick time.5 (ECF No. 34, p. 8.) Given this,
4 All of the time documented in petitioner’s absence sheet is also included in her tally of the time
constituting her loss of earnings claim. (Compare ECF No. 34, pp. 9-12 (absence sheet), with ECF No.
34, pp. 5-7 (petitioner’s tally of her claim within her brief).) Accordingly, unless petitioner refrained from
taking leave for any other reason during the nearly two-year period reflected on the absence sheet, the
absence sheet purports to reflect a curated list of leave requests, raising the question of how petitioner
created the list. Conversely, if the absence sheet does reflect all of the leave petitioner took during this
period, then that highlights the need for petitioner to more explicitly confirm (with evidence beyond her
counsel’s briefing) that the leave reflected on the absence sheet is fairly attributable to her SIRVA. In
either event, it remains unknown on what basis petitioner purported to recall and identify which leave
requests were or were not related to her SIRVA.
5 Under the leave policy at issue, any payout of accrued vacation time is capped (ECF No. 34, p. 8.) and
petitioner has not provided evidence as to how vacation time is carried over from year to year or how she
10

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and applying the reasoning in Gross, as urged by petitioner, she is entitled to an award
for loss of earnings totaling $310.60.6 Applying only the rate of payout guaranteed
under the terms of petitioner’s leave policy resolves respondent’s concerns regarding
speculation.
Respondent argues more broadly, however, that the Vaccine Act explicitly
identifies those who may receive a loss of earnings award as those “whose earning
capacity is or has been impaired” by reason of their vaccine injury, essentially
questioning whether a use of paid time off constitutes a reduction in earning capacity in
itself. (ECF No. 35, p. 25 (quoting § 300aa-15(a)(3)(A)) (citing Brown v. Sec’y of Health
& Human Servs., No. 00-0182V, 2005 WL 2659073, at *6-8 (Fed. Cl. Spec. Mstr. Sept.
21, 2005) (noting that the loss of earnings must be calculated “in a cautious manner”)).)
To respondent’s point, the Federal Circuit has interpreted this phrasing as creating an
eligibility requirement for an award of lost earnings, albeit in the context of parallel
language pertaining to future loss of earnings for minors. Tembenis v. Sec’y of Health &
Human Servs., 733 F.3d 1190, 1194 (Fed. Cir. 2013) (stating that under § 300aa-
15(a)(3)(B) “[i]n order to be eligible for lost earnings, the minor must have an injury: (1)
which is vaccine-related; (2) which impaired the minor’s earning capacity . . .”).
Although the Chief Special Master has on multiple occasions addressed whether given
circumstances support paid time off as a loss of earnings, I have not located any
instance among these cases in which the availability of a loss of earnings award was
challenged as a threshold question. See Gross, 2021 WL 2666685, at *6; Brown v.
Sec’y of Health & Human Servs., No. 20-1287V, 2024 WL 5410122, at *6. (Fed. Cl.
Spec. Mstr. Dec. 18, 2024); Cyr v. Sec’y of Health & Human Servs., No. 21-0012V,
2024 WL 991944, *7 (Fed. Cl. Spec. Mstr. Feb. 6, 2024); Ruppert v. Sec’y of Health &
Human Servs., No. 18-1621V, 2023 WL 9063679, at *12 (Fed. Cl. Spec. Mstr. Nov. 30,
2023); Bidlack v. Sec’y of Health & Human Servs., No. 20-0093V, 2023 WL 2885332, at
*8 (Fed. Cl. Spec. Mstr. Apr. 11, 2023).
When lacking direct guidance, this program typically follows the Restatement
(Second) of Torts. Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1351-
52 (Fed. Cir. 1999) (adopting the Restatement (Second) of Torts with respect to tort
has used her vacation time over the longer term. Accordingly, vacation time cannot reasonably be
included in her loss of earnings claim based on this record. Additionally, depending on the overall
amount of sick time accrued at the time of retirement, some accrued sick days (the first 60 days) will be
paid at the full rate and some unused sick days can be paid out at a 1/4 rate. (Id.) However, as
respondent argues, determining exactly how many sick days petitioner would have at her anticipated
retirement would be speculative and, in any event, the record of this case lacks any information regarding
petitioner’s overall accrual and use of sick time that could even potentially lead to such a conclusion. The
fact that much of petitioner’s later leave is marked as FMLA could imply that she had used up her paid
leave; however, that would be speculation on this record. Accordingly, petitioner has not preponderantly
demonstrated that the sick time at issue would be paid out at more than the minimum amount at which
sick time is potentially paid out under the policy.
6 Respondent did not explain how many of the hours he identified were sick time versus vacation time. I
will allow petitioner the benefit of that ambiguity. Because her sick time could be paid out at 1/6 of the
actual time, $1,863.62 divided by 6 is $310.60.
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principles to be applied in the Vaccine Program); Tembenis, 733 F.3d at 1196 (applying
the Restatement (Second) of Torts with respect to general principles as to the forms of
compensation available under section 15(a) of the Vaccine Act). The Restatement
(Second) explains that “[a] person physically harmed by the tort of another is entitled to
receive as damages the amount of earnings he has been prevented from acquiring up
to the time of the trial.” Restatement (Second) of Torts § 924 cmt. c (Am. L. Inst. 1979).
In that regard, it characterizes harm to one’s earning capacity as “the difference
between what he probably could have earned but for the harm and any lesser sum that
he actually earned in any employment . . . .” Id.
Here, when examining petitioner’s earnings holistically, including both her hourly
wages and her benefits, petitioner earned less overall than she could have but for her
injury. That is, had petitioner not been injured, she could have actually worked the
income-producing hours she missed due to her treatment of her injury and also
preserved her accrued benefits, which she has demonstrated to have monetary value
for the reasons discussed above. However, due to her injury, petitioner did not actually
work those income-producing hours and instead expended her valuable leave benefit.
Thus, she has suffered a loss of earning capacity (i.e., a reduction in what earning was
possible but for the injury) that did result in a loss of earnings (i.e., the ultimate value of
her accrued leave) despite her use of leave to cover her usual wage.
In light of the above, and given the evidence at hand, petitioner is entitled to an
award for loss of earnings totaling $310.60.7
c. Out-of-Pocket Expenses
Under to the Vaccine Act, a petitioner is entitled to compensation for “actual
unreimbursable expenses” which have been incurred relative to the alleged injury for
“medical or other remedial care determined to be reasonably necessary.” § 300aa-
15(a)(1). Petitioner requests reimbursement of out-of-pocket medical expenses totaling
$2,950.12.8 (ECF No. 47, p. 34.) However, respondent contends that petitioner should
7 In Gross, the award for paid time off was reduced to a net present value because it constituted an award
of future loss of earnings based on the fact that it was compensating for a loss that would be realized
upon future employment separation. 2021 WL 2666685, at *6. Here, however, based on petitioner’s age
and representation that she is already eligible to receive these benefits, this award may be considered
actual rather than projected loss of earnings. Moreover, given the amount at issue and given petitioner’s
age, a reduction to net present value would be de minimis.
8 Originally, petitioner requested $4,010.10 in unreimbursable expenses, which included $1,059.98 for
“OOP surgery.” (ECF No. 34, pp. 4-5.) However, respondent challenged this (and other expenses) as
being due to an unrelated right arm issue. (ECF No. 35, p. 28, n.7.) Petitioner never addressed
respondent’s contention, but did subsequently drop the cost of the “OOP surgery” from her list of
unreimbursable expenses, resulting in a new total request of $2,950.12. (ECF No. 47, pp. 33-34.)
According to petitioner, “OOP surgery” refers to a September 22, 2021 charge on her credit card by
“Geisinger Danville PA.” (ECF No. 34, p. 29.) Although petitioner had an orthopedic outpatient surgery
for her carpal tunnel syndrome (Ex. 10, pp. 15-16), she never had surgery to correct the SIRVA at issue.
Accordingly, even if petitioner’s omission of the “OOP surgery” was inadvertent, I would still find it is not
compensable.
12

Case 1:21-vv-01971-UNJ Document 52 Filed 06/17/25 Page 13 of 15
be awarded only $1,557.26 for out-of-pocket expenses. (ECF No. 35, p. 27; ECF No.
46, p. 2, n.1.) Respondent challenges the following expenses:
• Petitioner seeks reimbursement of $10.00 for an August 5, 2021 credit
card charge by Geisinger Danville PA. (ECF No. 47, p. 33; ECF No. 34, p.
25.) Respondent asserts this corresponds to a post-operative encounter
for petitioner’s carpal tunnel surgery. (ECF No. 35, p. 28 n.7 (citing Ex.
12, p. 17).)
Petitioner did not file any evidence indicating the reason for this $10.00 charge
from Geisinger Danville and did not provide any response to respondent’s correlation of
that charge to an encounter for an unrelated condition. Accordingly, petitioner has not
preponderantly demonstrated that this represents a reimbursable expense related to her
SIRVA.
• Petitioner seeks reimbursement of her $30.00 copay for her physical
therapy appointments. (ECF No. 47, p. 33; ECF No. 34, pp. 32-33.)
Respondent does not generally dispute reimbursement of these copays
but asserts that there is no corresponding medical record for copays listed
for March 30, 2021; September 8, 2021; September 14, 2021; September
16, 2021; and September 24, 2021. (ECF No. 35, p. 28 n.8.) Accordingly,
respondent disputes $150.00 of the physical therapy copays.
Respondent is persuasive in challenging $120.00 of these $150.00 in copays.
Respondent is not persuasive in disputing petitioner’s entitlement to reimbursement of
the March 30, 2021 copay. Petitioner has submitted is an invoice from Pivot Physical
Therapy. (ECF No. 34, pp. 32-33.) Although respondent is unable to correlate the
invoice charge to the relevant medical records, he has not disputed the authenticity of
the invoice given that he has accepted that many of the charges are reimbursable.
Thus, the fact that petitioner has been charged these amounts is not at issue and
respondent has not suggested any reason to suspect petitioner was seen at Pivot
Physical Therapy for any reason other than her SIRVA during that period. Regarding
the September 2021 copays, however, respondent is persuasive in challenging the lack
of medical record documentation. Petitioner has not filed Pivot Physical Therapy
records beyond May of 2021 (Exs. 4, 6); however, her other medical records confirm
that as of August 26, 2021, she was referred to post-operative occupational therapy
following her carpal tunnel release surgery and that she specifically requested a referral
to Pivot Physical Therapy for this therapy. (Ex. 11, pp. 4-5.) Accordingly, the record
evidence suggests that the September 2021 Pivot Physical Therapy copays were
unrelated to petitioner’s SIRVA.
• Petitioner seeks reimbursement of $114.51 paid to Geisinger Clinic on
November 25, 2020. (ECF No. 47, p. 33; ECF No. 34, p. 21.) As with the
physical therapy copays, respondent argues there is no medical record for
this date of service corresponding to this expense. (ECF No. 35, p. 28
n.8.)
13

Case 1:21-vv-01971-UNJ Document 52 Filed 06/17/25 Page 14 of 15
Whereas petitioner provided an invoice for her physical therapy copays, she
evidences the $114.51 paid to Geisinger Clinic only by a line on her credit card
statement. (ECF No. 34, p. 21.) Neither the credit card statement nor petitioner’s
briefing explains the reason for the charge, even after it was questioned by respondent.
(ECF Nos. 34, 47.) The fact that the billing record indicates that the Geisinger Clinic in
question is in Selinsgrove, Pennsylvania, might suggest that the charge originates from
her orthopedist. (See ECF No. 34, p. 21.) However, it is impossible to confirm that
based on the existing record. Unlike petitioner’s treatment with Pivot Physical Therapy,
petitioner’s overall care from Geisinger cannot be easily parsed with respect to the
condition at issue. Accordingly, petitioner has not preponderantly demonstrated that
this amount is reimbursable as an expense related to her SIRVA.
• Petitioner seeks reimbursement of $544.14, which she identifies as a
charge for a cortisone injection of April 5, 2023, and $564.21, which she
identifies as a charge for an MRI of August 26, 2021. (ECF No. 47, p. 33;
ECF No. 34, pp. 20, 27.) Respondent contends, however, that the
supporting documentation does not identify the reason for the charges.
(ECF No. 35, p. 28 n.8.)
Regarding the $544.14 petitioner seeks for reimbursement of a cortisone
injection, petitioner submitted an invoice from Geisinger dated April 5, 2023. (ECF No.
34, p. 34.) Although the invoice balance owed by petitioner after insurance is $544.14,
the total charge had been $5,308.20 and the reason for the charge is not indicated.
(Id.) This amount is not readily identifiable as a charge for a cortisone injection,
petitioner has not filed medical records for 2023, and in discussing the course of her
treatment throughout her briefing petitioner did not at any other point assert that she
received a cortisone injection in 2023. (ECF Nos. 31, 47.) Nor did petitioner seek to
further explain or substantiate the nature of this invoice after respondent challenged its
sufficiency. Accordingly, petitioner has not preponderantly demonstrated that this
amount is reimbursable as an expense related to her SIRVA.
Regarding the $564.21 petitioner seeks for reimbursement of an MRI, petitioner
submitted a credit card statement with a line item for that amount by “Geisinger Danville
PA” of August 26, 2021. (ECF No. 34, p. 27.) The credit card statement does not
indicate the reason for the charge. (Id.) However, other records filed by petitioner
confirm that on that date she paid separate charges of $174.12 and $351.91 for a left
upper extremity MRI performed on March 29, 2021. (Ex. 9, pp. 7, 12.) This adds up to
only $526.03. The difference of $38.18 is explained by a third charge of that date,
which was related to petitioner’s August 4, 2021 guided ultrasound injection for her
shoulder. (Ex. 9, p. 9.) Accordingly, while petitioner’s description did not fully capture
the nature of the charges, I find that petitioner has preponderantly established that the
full amount of $564.21 is reimbursable as expenses related to her SIRVA.
• Petitioner seeks reimbursement of $10.00 spent at CVS on October 13,
2020, which she represents as the cost of a prescription. (ECF No. 47, p.
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Case 1:21-vv-01971-UNJ Document 52 Filed 06/17/25 Page 15 of 15
34.) Respondent questions this because the credit card documentation
shows a broader charge of $40.00, with only petitioner’s handwritten
notation suggesting a portion of the amount was related to her shoulder.
(ECF No. 35, p. 28 n.8.)
Although petitioner’s documentation of this expense is not ideal, her October 13,
2020 encounter record with PA Bright confirms she did receive a prescription for a pain
killer for her shoulder as of that date. (Ex. 3, p. 1141.) Accordingly, petitioner has
preponderantly demonstrated that she incurred this $10.00 cost as an expense related
to her SIRVA.
In light of all of the above, I find that petitioner is entitled to compensation for
unreimbursable expenses in the amount of $2,161.47.
IV. Conclusion
In light of the above, I award petitioner a lump sum payment of $77,472.07
representing $75,000.00 in compensation for actual pain and suffering, $310.60 in
compensation for actual loss of earnings, and $2,161.47 in compensation for
actual unreimbursable expenses, to be paid through an ACH deposit to
petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner. This
amount represents compensation for all damages available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this decision.9
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
9 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.
15

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_21-vv-01971-cl-extra-11309940
Date issued/filed: 2026-04-10
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10842585
--------------------------------------------------------------------------------
  In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                            No. 21-1971V
                                      Filed: February 25, 2026



 JANE BAKER,                                                    Special Master Horner

                         Petitioner,
 v.

 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                         Respondent.


David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Madelyn Weeks, U.S. Department of Justice, Washington, DC, for respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

       On October 6, 2021, Jane Baker filed a petition under the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner
alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”)
as a result of an influenza (“flu”) vaccination she received on October 6, 2020. (ECF No.
1.) On May 23, 2025, I issued my decision awarding damages in favor of petitioner.
(ECF No. 48.)

      On October 2, 2025, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 53) (“Fees App.”) Petitioner requests the following compensation: attorneys’ fees
and costs in the amount of $73,250.64, representing $70,688.75 in fees and $2,561.89

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), Petitioners have 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
in costs. Fees App. at 3. Pursuant to General Order No. 9, petitioner indicated that she
did not personally incur any costs in pursuit of this litigation. Fees App. Ex. C. On
October 16, 2025, respondent filed a response to petitioner’s motion. (ECF No. 54.)
Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires
respondent to file a response to a request by a petitioner for an award of attorneys' fees
and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2.
Respondent “respectfully requests that the Court exercise its discretion and determine a
reasonable award for attorneys’ fees and costs.” Id. at 4. Petitioner did not file a reply.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). The Federal Circuit has approved the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-
48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum
v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or
downward departure from the initial calculation of the fee award based on specific
findings. Id. at 1348.

      It is “well within the special master’s discretion” to determine the reasonableness
of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir.
1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
(“[T]he reviewing court must grant the special master wide latitude in determining the
reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees
must include contemporaneous and specific billing records that indicate the work
performed and the number of hours spent on said work. See Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not
include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

       Reasonable hourly rates are determined by looking at the “prevailing market rate”
in the relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the
burden of providing adequate evidence to prove that the requested hourly rate is
reasonable. Id.

       Special masters can reduce a fee request sua sponte, without providing
petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee
reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee


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application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to
determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of
Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their
prior experience to reduce hourly rates and the number of hours claimed in attorney fee
requests . . . Vaccine program special masters are also entitled to use their prior
experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

       a. Hourly Rates

      Petitioner requests the following rates of compensation for her attorney, Mr. David
Carney: $325.00 per hour for work performed in 2019, $350.00 per hour for work
performed in 2020, $375.00 per hour for work performed in 2021, $400.00 per hour for
work performed in 2022, $425.00 per hour for work performed in 2023, $450.00 per
hour for work performed in 2024, and $475.00 per hour for work performed in 2025; for
Mr. Adam M. Green: $400.00 per hour for work performed in 2020-2021; and for Ms.
Evan R. Baker, $200.00 per hour for work performed as an attorney in 2023. Fees App.
Ex. A. Additionally, for law clerks, Petitioner requests $150.00 per hour for work
performed in 2021, $157.50 per hour for work performed in 2022, and $165.00 per hour
for work performed in 2023; and for paralegals: $145.00 per hour for work performed
from 2019-2022, $175.00 per hour for work performed from 2023-2024, and $185.00
per hour for work performed in 2025. Id. Additionally, for law clerks, Petitioner requests:
$145.00 per hour for work performed from 2019-2022, and $157.50 per hour for work
performed in 2024; and for paralegals: $145.00 per hour for work performed from 2019-
2022, and $175.00 per hour for work performed in 2023-2024. Id. These rates are
consistent with what counsel has previously been awarded for their Vaccine Program
work and I find them to be reasonable herein. I shall also award the requested law clerk
and paralegal time at the provided rates.

       b. Hours Expended

        Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests
hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at
1521. While attorneys may be compensated for non-attorney-level work, the rate must
be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y
of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr.
Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of
who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

      Upon review, the overall number of hours billed appears to be reasonable. I have
reviewed the billing entries and find that they adequately describe the work done on the
case and the amount of time spent on that work. I do not find any of the entries to be
objectionable, nor has respondent identified any as such. Petitioner is therefore
awarded final attorneys’ fees of $70,688.75.


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        c. Attorneys’ Costs

      Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl.
1992). Petitioner requests a total of $2,561.89 in attorneys’ costs. Fees App. Ex. B.
These costs are comprised of acquisition of medical records, the Court’s filing fee, and
postage. Id. I find that these costs have been supported with the necessary
documentation and are reasonable. Petitioner is therefore awarded the full amount of
costs sought.

II.     Conclusion

      In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have
reviewed the billing records and costs in this case and finds that petitioner’s request for
fees and costs is reasonable. I find it reasonable to compensate petitioner and her
counsel as follows: a lump sum in the amount of $73,250.64, representing
reimbursement for petitioner’s attorneys’ fees and costs, to be paid through an
ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court shall enter judgment in accordance herewith.3

        IT IS SO ORDERED.

                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

Vaccine Rule 11(a).

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