VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02043 Package ID: USCOURTS-cofc-1_21-vv-02043 Petitioner: Deborah Belker-Frechette Filed: 2021-10-19 Decided: 2025-01-06 Vaccine: influenza Vaccination date: 2020-10-05 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 50000 AI-assisted case summary: On October 19, 2021, Deborah Belker-Frechette filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) due to an influenza vaccine received on October 5, 2020. Petitioner, then 62 years old, claimed the vaccine was administered too high in her left deltoid, leading to pain and limited range of motion. She sought treatment from her primary care provider, physical therapists, acupuncturists, and massage therapists. Medical records documented her consistent reporting of left shoulder pain and limitations, correlating the onset to the vaccination. Respondent initially disputed the timing of her pain onset but later conceded that Petitioner met the remaining criteria for a Table SIRVA injury. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on December 6, 2024, finding that Petitioner's pain onset occurred within 48 hours of vaccination and that she satisfied all other requirements for a Table SIRVA injury. Subsequently, the parties reached a stipulation for damages. On January 3, 2025, Respondent filed a proffer recommending an award of $50,000.00 for pain and suffering, which Petitioner agreed to. Chief Special Master Corcoran issued a decision on February 20, 2025, awarding Petitioner a lump sum of $50,000.00 for pain and suffering. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Sarah Black Rifkin of the U.S. Department of Justice. Theory of causation field: Petitioner Deborah Belker-Frechette, age 62, received an influenza vaccine on October 5, 2020. She alleged a left shoulder injury related to vaccine administration (SIRVA), a condition listed on the Vaccine Injury Table. Petitioner claimed the vaccine was administered too high in her left deltoid, causing pain and limited range of motion. Medical records and Petitioner's statements indicated pain onset within 48 hours of vaccination, correlating to the administration date. Respondent initially disputed the onset timing but later conceded Petitioner met the remaining criteria for a Table SIRVA. Chief Special Master Brian H. Corcoran ruled on entitlement on December 6, 2024, finding Petitioner met the criteria for a Table SIRVA, including the 48-hour onset requirement. The parties stipulated to damages, and on February 20, 2025, Chief Special Master Corcoran awarded Petitioner $50,000.00 for pain and suffering. Petitioner was represented by David John Carney (Green & Schafle LLC) and Respondent by Sarah Black Rifkin (U.S. Department of Justice). Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02043-0 Date issued/filed: 2023-05-08 Pages: 8 Docket text: PUBLIC ORDER/RULING (Originally filed: 04/06/2023) regarding 22 Findings of Fact & Conclusions of Law, Scheduling Order, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. (Main Document 25 replaced on 5/8/2023 with correct PDF) (sw). -------------------------------------------------------------------------------- Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2043V UNPUBLISHED DEBORAH BELKER-FRECHETTE, Chief Special Master Corcoran Petitioner, Filed: April 6, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent FINDINGS OF FACT1 On October 19, 2021, Deborah Belker-Frechette filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, which was causally related to the influenza (“flu”) vaccine she received on October 5, 2020. Petition at 1, ¶¶ 3, 16. 1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Fact Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 2 of 8 A fact dispute has arisen between the parties regarding the situs of vaccine administration. For the reasons discussed below, I find the flu vaccine was most likely administered in Petitioner’s left deltoid, as alleged. I. Relevant Procedural History The day after filing the Petition, Ms. Belker-Frechette filed a signed declaration3 and some of the medical records usually required under the Vaccine Act. Exhibits 1-4, filed Oct. 20, 2021, ECF No. 6; see Section 11(c). Approximately four months later - on February 28, 2022, Petitioner filed the remainder of her required medical records. Exhibits 5-9, ECF No. 10. On March 2, 2022, the case was activated and assigned to the Special Processing Unit (OSM’s process for attempting to resolve certain, likely-to-settle claims). ECF No. 13. After noting that the vaccine record did not indicate the site of administration, and identifying another potential roadblock to entitlement (evidence of prior left shoulder pain), I ordered Petitioner to file additional evidence and briefing. ECF No. 16. In response, Petitioner filed a supplemental signed declaration, statements from two friends,4 and a motion requesting that I issue a factual ruling finding the vaccine alleged as causal was administered in her left arm. Exhibits 10-12, ECF No. 18; Petitioner’s Motion for Finding of Fact (“Motion”), ECF No. 19. Emphasizing the lack of any information regarding the site of vaccination, along with her consistent reports of left shoulder pain post-vaccination (Motion at 10-11), Petitioner insists she “has preponderantly shown that she received the influenza vaccine in her left arm on October 5, 2020” (id. at 13). She also points to the information contained in the supporting statement from her friends as further evidence supporting her assertions. Id. at 11-13. In reaction, Respondent argues that “there is currently no medical evidence to suggest that [P]etitioner was vaccinated in her left shoulder, beyond [P]etitioner’s own statements to treating physicians.” Respondent’s Response and Status Report, filed Sept. 13, 2022, at 2, ECF No. 20. He stresses that the statements provided by Petitioner’s friends were executed in June 2022, approximately twenty months post-vaccination. Id. Thus, he maintains they are “less reliable than contemporaneous medical reports.” Id. 3 Petitioner’s declaration is signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Exbibit 2. 4 Although Petitioner’s supplemental declaration is again signed under penalty of perjury as required by 28 U.S.C.A. § 1746 (Exhibit 10), the statements from her friends are unnotarized, and otherwise simply state that they understand the statement will be filed in Ms. Belker-Frechette’s vaccine proceeding, without any express indicia of their veracity. Exhibits 11-12. 2 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 3 of 8 (citing Reusser v. Sec’y of Health & Hum. Servs., 28 Fed Cl 516, 523 (1993)). Along with his arguments regarding situs, Respondent maintains Petitioner has failed to provide sufficient evidence to establish that the onset or her pain occurred within 48 hours of vaccination and there is evidence that Petitioner had a history of prior left shoulder pain. Id. at 2-3. The situs issue is now ripe for adjudication. II. Issue At issue is whether Petitioner received the October 5, 2020 flu vaccine in her left deltoid, as alleged. III. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). 3 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 4 of 8 The United States Court of Federal Claims has outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such fact testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). IV. Finding of Fact I make the finding regarding site of vaccination after a complete review of the record to include all medical records, affidavits, documentation, briefing, and additional evidence filed. Specifically, I base the finding on the following evidence: 4 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 5 of 8 • Approximately eleven months before receiving the 2020 flu vaccine alleged as causal (in late October 2019), Petitioner visited her current primary care provider (“PCP”), expressing a desire to discuss recent events and to obtain a “full baseline check.” Exhibit 1 at 15. It was noted that Petitioner “does not seek out medical care routinely” (id.), and the record indicates the visit was “to establish care” (id. at 18). • During this PCP visit on October 23, 2019, Petitioner described a recent episode of mid-chest discomfort and mild numbness in her left arm (characterized as a chronic condition) after loading 600 pounds of corn into her truck. Exhibit 1 at 15. When listing her past symptoms over the last one to two years, she reported an earlier episode of chest discomfort, “intermittent neck pain, numbness of [her] upper left arm at times,” and itching in her right armpit. Id. The PCP assessed Petitioner as having noncardiac-related chest pain, prescribed medication for acid reflux, and administered a flu vaccine. Id. at 9 (list of immunizations), 9-13 (testing), 17- 18 (PCP’s assessment and instructions). • Approximately one year later – on October 5, 2020, Petitioner (then 62 years old) returned to her PCP clinic for administration of the flu vaccine alleged as causal. Exhibit 1 at 14; see id. at 9 (list of immunizations). The immunization record indicates Petitioner received the flu vaccine intramuscularly on October 5, 2020. Id. at 9. It does not indicate the site of vaccination. Similarly, no site of vaccination is provided for the other listed vaccination – the flu vaccine Petitioner received in 2019. Id. • On November 13th, Petitioner returned to her PCP complaining of left shoulder pain and limited range of motion (“ROM”) which she attributed to the flu shot she received six weeks earlier.5 Exhibit 1 at 19. Reporting that she preferred to avoid medications, she described difficulty sleeping, lifting her arm overhead or behind her back, and one episode of left shoulder numbness. Id. Encouraging Petitioner to apply ice and heat and to take over the counter pain medication, the PCP prescribed topical gel and physical therapy (“PT”). Id. at 21. • At her initial PT evaluation, Petitioner again reported left shoulder pain and limited ROM after receiving a flu vaccine on October 5, 2020. Exhibit 8 at 10-14. Characterizing the onset of her pain as “[s]udden” (id. at 9), she 5 Petitioner also described ongoing difficulties related to acid reflux. Exhibit 1 at 19-21. 5 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 6 of 8 described constant pain at an initial level of four and reduction to two out of ten after four weeks (id. at 7). • After attending nine PT sessions through early January 2021, Petitioner was directed to return to her PCP for further diagnostic testing, due to her lack of progress. Exhibit 8 at 16-17. • At her next PCP appointment (on January 5th), Petitioner reported continued left shoulder pain and a reluctance to use the prescribed gel due to a concern about its potential side effects. Exhibit 1 at 22. After Petitioner declined a steroid injection, the PCP referred her to an orthopedist and suggested acupuncture, if desired. Id. at 24. • Petitioner attended one more PT session on January 7th. Exhibit 8 at 8. She was discharged on February 11th. Id. • At her first acupuncture session on January 12th, Petitioner again reported left shoulder pain after receiving a flu vaccine three months earlier. Exhibit 3 at 1. • By her fourth acupuncture session on January 22nd, Petitioner reported 50 percent improvement, even after shoveling snow. Exhibit 3 at 3. However, her pain had increased by her next session on January 24th, a change attributed to the use of a massage gun. Id. at 4. • On March 10th, Petitioner began attending massage therapy. Exhibit 4 at 5. She again reported that her left shoulder pain was due to the vaccine she received, characterizing her injury as a “SIRVA – shoulder injury due to vaccine administration.” Id. at 6. • During her next PCP appointment – held telephonically on March 24th, Petitioner reported “[s]ome improvement in ROM but no change in pain.” Exhibit 1 at 25. Noting that she had tried PT, Petitioner indicated she was attending acupuncture and had started massage therapy and yoga. She again declined a steroid injection, indicating she was “[t]errified of another injection.” Id. The PCP ordered an MRI and prescribed pain medication and a muscle relaxant. Exhibit 1 at 26-27. • Performed on April 8th, the MRI revealed “mild tendinosis of the supraspinatus and subscapularis tendons, [n]o rotator cuff tear, . . . [g]lenohumeral joint capsulitis, . . . [m]ild tendinosis of the long head biceps 6 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 7 of 8 tendon, . . . [and] [m]ild degenerative arthrosis of the AC joint.” Exhibit 1 at 7-8. There was “[n]o subacromial-subdeltoid bursal fluid” observed. Id. at 7. In the history portion of the MRI report, it is reported that Petitioner suffered “[s]houlder pain following vaccination fall 2020 [and] [l]imited range of motion.” Id. • Petitioner continued to attend acupuncture sessions throughout April, May, and early June 2021. Exhibit 5 at 3-22. She attended massage therapy until November 2021. Exhibit 6 at 4, 8-10. • In her initial signed declaration, Petitioner described left shoulder pain onset immediately upon vaccination. Exhibit 2 at ¶ 8. She indicated that she believed the vaccine was given “much higher than any of [her] previous flu shots.” Id. • In her supplemental signed declaration, Petitioner maintains that the left shoulder pain she experienced after vaccination was different than her 2019 soreness. Exhibit 10 at ¶¶ 5-7, 9. • In their signed statements, Petitioner’s friends recalling observations and communications from Petitioner which support her claims of differing pain post-vaccination. Exhibits 11-12. The above medical entries show that, when seeking treatment, Petitioner consistently identified her left shoulder as the problem, andattributed her pain to the flu vaccine she reported receiving in her left arm. She provided these histories, during the year following vaccination, to her PCP, physical therapist, acupuncturist, massage therapist, and the technician performing her April 2021 MRI. In both medical records and her first signed declaration, Petitioner described the flu vaccine as improperly administered – given too high in her left deltoid. Exhibit 1 at 19; Exhibit 2 at ¶ 8. While originating from Petitioner, these statements are also set forth in contemporaneous records, and should therefore be afforded greater weight than any subsequent assertion or witness statement. The Federal Circuit has stated that “[m]edical records, in general, warrant consideration as trustworthy evidence . . . [as they] contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight should be accorded to this class of information, even when the record in question simply memorializes what the petitioner said at the time. 7 Case 1:21-vv-02043-UNJ Document 25 Filed 05/08/23 Page 8 of 8 Although the vaccine record does not indicate the exact site of vaccination, it clearly establishes that, on October 5, 2020, Petitioner received an intramuscularly administered flu vaccine. Furthermore, the medical histories provided by Petitioner in the contemporaneously created medical records and supporting evidence from her PCP, other treaters, and friends provide persuasive evidence showing the vaccine was administered in Petitioner’s left deltoid. And there is a dearth of evidence indicating that the vaccine was administered in any other location. I thus determine, based on the entire record, that Petitioner has provided preponderant evidence establishing that the flu vaccine to which Petitioner attributes her SIRVA was most likely administered in her left deltoid on October 5, 2020. V. Scheduling Order Based on recent data, I expect the HHS review to be completed in this case in May 2023. Although I have determined that Petitioner has provided sufficient evidence to establish that she received the flu vaccine in her left deltoid, as alleged, there is evidence showing she previously suffered chronic left arm numbness. And the results of the April 2021 MRI do not definitively show a SIRVA injury. These matters may require additional consideration. On March 7, 2023, Petitioner forwarded a demand and supporting documentation to Respondent. ECF No. 21. Prior to the completion of the HHS review, she should make any needed adjustments to her demand and should file any updated medical records. Petitioner’s motion for a factual finding regarding the site of vaccination is GRANTED. Respondent shall file a status report indicating how he intends to proceed by no later than Tuesday, May 23, 2023. If interested in engaging in settlement or damages discussions, Respondent should provide an estimate of the amount of time needed to respond to Petitioner’s demand. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02043-1 Date issued/filed: 2025-01-06 Pages: 10 Docket text: PUBLIC ORDER/RULING (Originally filed: 12/06/2024) regarding 33 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 1 of 10 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2043V DEBORAH BELKER-FRECHETTE, Chief Special Master Corcoran Petitioner, Filed: December 6, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 19, 2021, Deborah Belker-Frechette filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, due to an influenza (“flu”) vaccine she received on October 5, 2020. Petition at 1, ¶¶ 3, 16. Respondent disputes Petitioner has established pain onset timing consistent with the requirements of a Table SIRVA. For the reasons discussed below, I find that the onset 1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 2 of 10 of Petitioner’s left shoulder pain occurred within 48 hours of vaccination, and that she has satisfied the other requirements of a compensable Table SIRVA injury. Petitioner is thus entitled to compensation under the Vaccine Act. I. Relevant Procedural History After several months of records-filing, the case was activated and assigned to the “Special Processing Unit” (OSM’s adjudicatory system for resolution of cases deemed likely to settle). ECF No. 13. Because the vaccination record did not indicate the site of administration (Exhibit 1 at 14), I allowed Petitioner the opportunity to present additional situs evidence and briefing. ECF No. 16; see Exhibits 10-12, ECF No. 18; Petitioner’s Motion for Ruling on the Record Regarding Vaccine Situs, ECF No. 19. On April 6, 2023, I issued a fact ruling determining that the flu vaccine was most likely administered in Petitioner’s left deltoid, as alleged. ECF No. 22. The parties thereafter attempted to settle the claim, but reached an impasse in August 2023. Status Report, ECF No. 28. They subsequently filed additional documents presenting their arguments related to entitlement. ECF Nos. 29-32. In his last filing, Respondent confirmed that his only objection to compensation related the onset Table requirement. Respondent’s Response to Petitioner’s Motion for Ruling on the Record at 5, 5 n.6 (stating “Respondent does not contest that [P]etitioner meets the remaining QAI for SIRVA”). The issue of entitlement is now ripe for adjudication.3 II. Finding of Fact Regarding Onset At issue is whether Petitioner’s first symptom or manifestation of onset after vaccine administration (specifically pain) occurred within 48 hours as set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(a)XIV.B. (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI). A. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, 3 In her last filing, Petitioner also addressed the question of compensation, stating that she seeks $72,000.00 for her pain and suffering. ECF No. 32. Because all prior filings addressed only the issue of entitlement, I will allow the parties to provide further briefing before determining the appropriate pain and suffering award in this case. I will, however, briefly discuss my initial assessment regarding damages in this ruling. See infra Section IV. 2 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 3 of 10 conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The United States Court of Federal Claims has outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such fact testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though 3 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 4 of 10 the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). B. Analysis I make the following onset finding after a complete review of the record to include all medical records, affidavits or declarations, and additional evidence filed. As the record shows: • Approximately eleven months before receiving the 2020 flu vaccine alleged as causal (in late October 2019), Petitioner visited her current primary care provider (“PCP”) expressing a desire to discuss recent events and to obtain a “full baseline check.” Exhibit 1 at 15. It was noted that Petitioner “does not seek out medical care routinely” (id.), and the record indicates the visit was “to establish care” (id. at 18). • During this PCP visit, Petitioner described a recent episode of mid-chest discomfort and mild numbness in her left arm (characterized as a chronic condition) after loading 600 pounds of corn into her truck. Exhibit 1 at 15. When listing her past symptoms over the last one to two years, she reported an earlier episode of chest discomfort, “intermittent neck pain, numbness of [her] upper left arm at times,” and itching in her right armpit. Id. The PCP assessed Petitioner as having noncardiac-related chest pain, prescribed medication for acid reflux, and administered a flu vaccine. Id. at 9 (list of immunizations), 9-13 (testing), 17-18 (PCP’s assessment and instructions). • On October 5, 2020, Petitioner (then 62 years old) visited her PCP clinic for administration of the flu vaccine alleged as causal, and received it at that time. Exhibit 1 at 14; see id. at 9 (list of immunizations). 4 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 5 of 10 • On November 13th, Petitioner returned to her PCP complaining of left shoulder pain and limited range of motion (“ROM”) which she attributed to the vaccination she received six weeks earlier.4 Exhibit 1 at 19. She reported that her pain began “[f]airly abruptly” after vaccination, and that she believed the vaccine had been administered “higher than usual.” Id. Stating that she preferred to avoid medications, Petitioner described difficulty sleeping, lifting her arm overhead or behind her back, and one episode of left shoulder numbness. Id. • Encouraging Petitioner to apply ice and heat and to take over the counter pain medication, the PCP prescribed topical gel and physical therapy (“PT”). Exhibit 1 at 21. Although he noted that such injuries are rare, the PCP opined Petitioner was suffering from a “[p]possible shoulder injury related to vaccination.” Id. • At her initial PT evaluation, Petitioner again reported left shoulder pain and limited ROM post-vaccination. Exhibit 8 at 10. Specially, she characterized her pain onset as “[s]udden” (id. at 9), providing an onset date of October 5, 2020 (id. at 6) - the date of her vaccination. Describing her pain as constant, Petitioner estimated her severity was initially four out of ten, but lessened to two out of ten after four weeks. Id. at 7. • Petitioner continued to improve over the course of nine PT sessions in December 2020 to January 2021, but was directed to return to her PCP for further diagnostic testing after experiencing a few days of increasing pain prior to her last session on January 4th. Exhibit 8 at 16-17. At that time, it was noted that her pain ranged from two to seven. Id. at 16. • When seen by her PCP the next day (January 5th), Petitioner again reported left shoulder pain after receiving a flu vaccine that was administered too high. Exhibit 1 at 22. In this record, it was noted that she “[c]orrelates onset to after receiving seasonal influenza vaccination.” Id. After Petitioner shared a reluctance to use the prescribed gel due to a concern about its potential side effects (id.) and declined a steroid injection, the PCP referred her to an orthopedist and suggested acupuncture, if desired. Id. at 24. • Petitioner was discharged from PT without receiving further treatment on February 11, 2021. Exhibit 8 at 8. 4 Petitioner also described ongoing difficulties related to acid reflux. Exhibit 1 at 19-21. 5 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 6 of 10 • At her first acupuncture session on January 12th, Petitioner again reported left shoulder pain after receiving a flu vaccine three months earlier. Exhibit 3 at 1. • By her fourth acupuncture session on January 22nd, Petitioner reported 50 percent improvement, even after shoveling snow. Exhibit 3 at 3. However, her pain had increased by her next session on January 24th, a change attributed to the use of a massage gun. Id. at 4. • On March 10th, Petitioner began attending massage therapy. Exhibit 4 at 5. She again reported that her left shoulder pain was due to the vaccine she received, characterizing her injury as a “SIRVA – shoulder injury due to vaccine administration.” Id. at 6. • During her next PCP appointment (held telephonically on March 24th), Petitioner reported “[s]ome improvement in ROM but no change in pain.” Exhibit 1 at 25. Noting that she had tried PT, Petitioner indicated she was attending acupuncture and had started massage therapy and yoga. She again declined a steroid injection, indicating she was “[t]errified of another injection.” Id. The PCP ordered an MRI and prescribed pain medication and a muscle relaxant. Exhibit 1 at 26-27. • When undergoing an MRI on April 8th, Petitioner again reported “[s]houlder pain following vaccination fall 2020.” Exhibit 1 at 7. The MRI revealed “mild tendinosis of the supraspinatus and subscapularis tendons, [n]o rotator cuff tear, . . . [g]lenohumeral joint capsulitis, . . . [m]ild tendinosis of the long head biceps tendon, . . . [and] [m]ild degenerative arthrosis of the AC joint . . . [but] [n]o subacromial-subdeltoid bursal fluid.” Id. at 7-8. • Petitioner continued to attend acupuncture sessions throughout April, May, and early June 2021. Exhibit 5 at 3-22. She attended massage therapy until November 2021. Exhibit 6 at 4, 8-10. • In her initial signed declaration, Petitioner described left shoulder pain onset immediately upon vaccination. Exhibit 2 at ¶ 8. She indicated that she believed the vaccine was given “much higher than any of [her] previous flu shots.” Id. 6 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 7 of 10 • In her supplemental signed declaration, Petitioner maintains that the left shoulder pain she experienced after vaccination was different than her 2019 soreness. Exhibit 10 at ¶¶ 5-7, 9. • In their signed statements, Petitioner’s friends recalling observations and communications from Petitioner which support her claims of immediate pain onset. Exhibits 11 at ¶¶ 5-6; Exhibit 12 at ¶ 5. The above medical records establish that when seeking treatment, Petitioner consistently described left shoulder pain that she attributed to a flu vaccine she received on October 5, 2020. Characterizing her pain as sudden and abrupt on at least one occasion, she provided the date of vaccination as the onset date for her pain. Petitioner provided these histories during the year following vaccination to her PCP, physical therapist, acupuncturist, massage therapist, and the technician performing her April 2021 MRI. And in both medical records and her first signed declaration, she described the flu vaccine as improperly administered – given too high in her left deltoid. While originating from Petitioner, these statements are also set forth in contemporaneous records, and should therefore be afforded greater weight than any subsequent assertion or witness statement. The Federal Circuit has stated that “[m]edical records, in general, warrant consideration as trustworthy evidence . . . [as they] contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight should be accorded to this class of information, even when the record in question simply memorializes what the petitioner said at the time. In addition, there is a dearth of evidence supporting a different pain onset. I thus determine, based on the entire record, that Petitioner has provided preponderant evidence establishing that her pain occurred within 48 hours of vaccination. III. Additional Requirements for Entitlement A. Legal Standards In addition to requirements concerning the vaccination received, the pain onset (discussed above in Section II), symptoms duration, and the lack of other award or settlement,5 a petitioner must establish that she suffered an injury meeting the Table 5 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or 7 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 8 of 10 criteria, in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(VIX)(B). The criteria establishing a SIRVA under the accompanying QAI are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E). 8 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 9 of 10 42 C.F.R. § 100.3(c)(10). B. Analysis Respondent has stated no further objections to compensation, and I find Petitioner has otherwise satisfied all criteria for a Table SIRVA injury following receipt of the flu vaccine. Although Petitioner experienced several instances of itching, numbness, and pain in her upper arm, as well as chest and neck, these episodes do prevent Petition from satisfying the QAI requirements related to a prior condition or alternative cause, especially considering Respondent’s lack of objection. See 42 C.F.R. § 100.3(c)(10)(i), (iv) (first and fourth QAI criteria). And Petitioner exhibited pain and limitations in ROM solely in her left, injured shoulder. E.g., Exhibit 1 at 20, 23 (PCP visits); Exhibit 6 at 8-10 (acupuncture records); Exhibit 8 at 5, 8, 16-17 (PT records); see 42 C.F.R. § 100.3(c)(10)(iii) (third QAI criterion). As I have determined in this ruling, the record supports a finding that Petitioner suffered pain within 48 hours of vaccination. See supra Section II.B.; 42 C.F.R. § 100.3(c)(10)(ii) (second QAI criterion). Additionally, the medical records show Petitioner suffered the residual effects of her injury for more than six-months. Exhibit 1 at 7-8 (MRI performed on March 8, 2021), 25-27 (March 24, 2021 PCP vists); see Section 11(c)(1)(D)(i) (six-month severity requirement). And the vaccine record shows Petitioner received the flu vaccine at her PCP’s clinic in Chanhassen, Minnesota. Exhibit 1 at 9, 14; see Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the United States or its territories). Furthermore, there is no evidence that Petitioner has collected a civil award for his injury. See Section 11(c)(1)(E) (lack of prior civil award). Thus, Petitioner has satisfied all requirements for entitlement under the Vaccine Act. IV. Appropriate Amount of Compensation Although I have found Petitioner entitled to compensation, I do not expect the amount awarded for Petitioner’s past pain and suffering to be significant. Throughout the medical records, Petitioner reported moderate pain levels (from two to seven). And she did not seek treatment initially until more than a month post-vaccination. Although her pain increased again in early January 2021, Petitioner received some relief from PT sessions in December 2020. In 2021, Petitioner declined two offers of a steroid injection from her PCP, preferring to treat her symptoms using acupuncture and massage therapy. And there is some evidence in these records showing her symptoms were aggravated by her continued physical activity, and included pain in other areas that appear unrelated to 9 Case 1:21-vv-02043-UNJ Document 38 Filed 01/06/25 Page 10 of 10 her SIRVA. See, e.g., Exhibit 5 at 3-4 (describing back and arm pain after weeding and muscle tension primarily in her trapezius). In attempting to resolve damages, the parties should keep in mind that this does not appear to be a case in which a significant pain and suffering award is warranted. Conclusion Based on the entire record in this case, I find that Petitioner has provided preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is entitled to compensation in this case. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 10 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02043-2 Date issued/filed: 2025-02-20 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 01/03/2025) regarding 36 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02043-UNJ Document 43 Filed 02/20/25 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2043V DEBORAH BELKER-FRECHETTE, Chief Special Master Corcoran Petitioner, Filed: January 3, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 19, 2021, Deborah Belker-Frechette filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, due to an influenza (“flu”) vaccine she received on October 5, 2020. Petition at 1, ¶¶ 3, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 6, 2024, I issued a ruling on entitlement, following briefing by the parties, finding Petitioner entitled to compensation for her SIRVA. On January 3, 2025, 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:21-vv-02043-UNJ Document 43 Filed 02/20/25 Page 2 of 5 Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $50,000.00, representing compensation for pain and suffering. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $50,000.00, representing compensation for pain and suffering, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement.3 This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this Decision.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Although the Proffer contains the former language – that this lump sum payment should be made in a check payable to Petitioner, the parties have agreed that, as of January 1, 2025, payments will be made electronically as stated in this Decision. 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:21-vv-02043-UNJ Document 43 Filed 02/20/25 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS DEBORAH BELKER-FRECHETTE, Petitioner, No. 21-2043V (ECF) Chief Special Master Corcoran v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 19, 2021, Deborah Belker-Frechette (“petitioner”) filed a petition for compensation (“Petition”), under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended, claiming a Table shoulder injury related to vaccine administration (“SIRVA”), caused by an influenza (“flu”) vaccination administered on October 5, 2020. Petition at 1. Respondent filed his Report on September 14, 2023, recommending that entitlement to compensation be denied. ECF No. 29. On October 17, 2023, petitioner filed a Motion for Ruling on the Record. ECF No. 30. On December 6, 2024, the Court issued a Ruling on Entitlement, finding petitioner entitled to compensation for a Table SIRVA injury.1 ECF No. 33. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Court issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the December 6, 2024 entitlement decision. Case 1:21-vv-02043-UNJ Document 43 Filed 02/20/25 Page 4 of 5 I. Items of Compensation Respondent proffers that petitioner should be awarded $50,000.00 in pain and suffering damages. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following:2 a lump sum payment of $50,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Deborah Belker-Frechette: $50,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:21-vv-02043-UNJ Document 43 Filed 02/20/25 Page 5 of 5 s/Sarah B. Rifkin SARAH B. RIFKIN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-5997 Sarah.Rifkin@usdoj.gov Dated: January 3, 2025 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_21-vv-02043-cl-extra-10803014 Date issued/filed: 2025-02-20 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10336426 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2043V DEBORAH BELKER-FRECHETTE, Chief Special Master Corcoran Petitioner, Filed: January 3, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 19, 2021, Deborah Belker-Frechette filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, due to an influenza (“flu”) vaccine she received on October 5, 2020. Petition at 1, ¶¶ 3, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 6, 2024, I issued a ruling on entitlement, following briefing by the parties, finding Petitioner entitled to compensation for her SIRVA. On January 3, 2025, 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access . 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S .C. § 300aa (2018). Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $50,000.00, representing compensation for pain and suffering. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $50,000.00, representing compensation for pain and suffering, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. 3 This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this Decision.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Although the Proffer contains the former language – that this lump sum payment should be made in a check payable to Petitioner, the parties have agreed that, as of January 1, 2025, payments will be made electronically as stated in this Decision. 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS DEBORAH BELKER-FRECHETTE, Petitioner, No. 21-2043V (ECF) Chief Special Master Corcoran v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 19, 2021, Deborah Belker-Frechette (“petitioner”) filed a petition for compensation (“Petition”), under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended, claiming a Table shoulder injury related to vaccine administration (“SIRVA”), caused by an influenza (“flu”) vaccination administered on October 5, 2020. Petition at 1. Respondent filed his Report on September 14, 2023, recommending that entitlement to compensation be denied. ECF No. 29. On October 17, 2023, petitioner filed a Motion for Ruling on the Record. ECF No. 30. On December 6, 2024, the Court issued a Ruling on Entitlement, finding petitioner entitled to compensation for a Table SIRVA injury.1 ECF No. 33. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Court issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the December 6, 2024 entitlement decision. I. Items of Compensation Respondent proffers that petitioner should be awarded $50,000.00 in pain and suffering damages. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following:2 a lump sum payment of $50,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Deborah Belker-Frechette: $50,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 s/Sarah B. Rifkin SARAH B. RIFKIN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-5997 Sarah.Rifkin@usdoj.gov Dated: January 3, 2025 3