VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00245
Package ID: USCOURTS-cofc-1_22-vv-00245
Petitioner: Margaret Chalgren
Filed: 2022-03-03
Decided: 2025-06-10
Vaccine: influenza
Vaccination date: 2020-10-09
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 40302

AI-assisted case summary:
Margaret Chalgren, an adult, received an influenza vaccine on October 9, 2020. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA). Her petition was filed on March 3, 2022. Ms. Chalgren reported left shoulder pain starting within 48 hours of vaccination, which she initially attributed to normal injection site soreness. However, the pain worsened over the following week, becoming severe and limiting her range of motion. She sought medical attention nearly three months later, on January 6, 2021, and was diagnosed with left shoulder pain. She later saw an orthopedist who diagnosed her with left shoulder subacromial bursitis with impingement and recommended physical therapy and a cortisone injection, which provided relief. She received a second cortisone injection in December 2021. The court found that the evidence preponderantly supported that her pain began within 48 hours of vaccination, meeting the Table criteria for SIRVA. The parties stipulated to damages, and the court awarded Ms. Chalgren $40,000.00 for pain and suffering and $302.34 for out-of-pocket expenses, for a total award of $40,302.34.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00245-0
Date issued/filed: 2025-06-10
Pages: 18
Docket text: PUBLIC DECISION (Originally filed: 05/05/2025) regarding 43 Ruling on Entitlement,, DECISION of Special Master,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:22-vv-00245-UNJ Document 47 Filed 06/10/25 Page 1 of 18
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0245V
MARGARET CHALGREN, Chief Special Master Corcoran
Petitioner, Filed: May 5, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On March 3, 2022, Margaret Chalgren 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on October 9,
2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
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 1:22-vv-00245-UNJ Document 47 Filed 06/10/25 Page 2 of 18
Respondent determined that he was amenable to informal resolution, and the
parties negotiated, but reached an impasse, and have now fully briefed entitlement and
damages (ECF Nos. 27-32, 39, 41, 42). For the reasons set forth herein, I find that
Petitioner is entitled to compensation, and award damages for actual pain and suffering
in the amount of $40,000.00, plus $302.34 for out-of-pocket expenses (including travel
expenses calculated at the business rate).
I. Factual Evidence
A. Medical Records
Petitioner received a flu vaccine in her left deltoid on October 9, 2020. Ex. 1 at 6.
The vaccine was administered during a preoperative examination in anticipation of eye
surgery, which she underwent a week later. Ex. 4 at 201; Ex. 7 at 10. The operative
report for her eye surgery indicates that she had a condition, dermatochalasis, where
excess skin obstructed her peripheral vision. Id. She followed up with her eye surgeon
the following month, saying she was doing well. Id. at 11. Unsurprisingly, neither of these
records mentions her shoulder.
On January 6, 2021 – just under three months after vaccination – Petitioner saw
her primary care physician Dr. Jennifer Lewis for left shoulder pain. Ex. 4 at 212. The
record describes her pain as being present “since flu vaccine on 10/9/2020,” stating that
the pain “started in October after she received her flu vaccine.” Id. at 214, 215. She had
some relief with ibuprofen. Id. On examination, she had tenderness over the left deltoid
muscle and pain over her lateral shoulder with external rotation, abduction, internal
rotation, and adduction. Id. at 216. Dr. Lewis assessed Petitioner with acute pain of her
left shoulder, and recommended non-steroidal anti-inflammatory medications, ice, rest,
and physical therapy (“PT”). Id.
Nearly four months later (April 28, 2021), Petitioner called Dr. Lewis, stating that
her shoulder was not getting any better and requesting an MRI. Ex. 4 at 219. Dr. Lewis
inquired whether Petitioner had done PT, because insurance typically would not approve
an MRI without a trial of PT. Id. at 220.
It appears that Petitioner did not follow up with Dr. Lewis. Instead, she saw
orthopedist Dr. Scott Holthusen the following week – now nearly seven months after
vaccination (May 5, 2021). Ex. 8 at 8. On the new patient form, she described “pain since
flu shot,” that she rated as zero out of ten when sitting and eight out of ten when active.
Id. at 15. There are two versions of this appointment record, one that Dr. Holthusen signed
on the appointment date, May 5th (Ex. 8 at 8), and one Dr. Holthusen signed nine months
later, on February 9, 2022 (Ex. 15 at 6).
2

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The version of the May 5th record signed on the appointment date explains that
Petitioner had a vaccination on October 9, 2020, and that the nurse told her that the
needle had broken, but had not stayed in her shoulder. Ex. 8 at 8. The record states that
Petitioner “did fine initially, however indicates pain one week later.” Id. Since that time,
she had increasing pain with reaching away from her body or behind her back. Id. She
had been trying home exercises, without relief. Id. She had difficulty sleeping on her left
side. Id. Dr. Holthusen diagnosed Petitioner with left shoulder subacromial bursitis with
impingement. Id. at 7-8. They discussed a cortisone injection, but because Petitioner had
her second COVID vaccine less than two weeks prior, Dr. Holthusen recommended that
she return for the injection after that time had passed. Id. He also recommended PT. Id.
Petitioner later requested that Dr. Holthusen amend the May 5th appointment
record through a form that is not dated. Ex. 8 at 34. The record stated she had pain a
week after vaccination, and she now explained this was “partly true but not specific
enough.” Id. She requested that Dr. Holthusen amend the record to reflect that she had
pain following vaccination, which she initially thought was normal. Id. However, “the pain
kept worsening until after about a week I couldn’t move my arm without intense pain.” Id.
The amendment request was made due to her pending vaccine injury claim and the “need
[for] an accurate record regarding onset of pain.” Id.
The amended version of the May 5th record signed by Dr. Holthusen in February
2022 states that Petitioner “noted what she believed to be initial injection related pain,
however indicates the pain progressively got worse over the next week until she could
not move her arm without intense pain.” Ex. 15 at 6. Since that time, she had continued
pain with reaching away from her body or behind her back. Id. Thus, the changes to the
record bolster Petitioner’s contention that the onset of her pain was within the time set
forth in the Table. The record is otherwise identical in relevant respects to the original,
unamended, record.
Petitioner returned to Dr. Holthusen on May 24, 2021, and was given a left shoulder
steroid injection and referred for PT.3 Ex. 8 at 16. Petitioner underwent a PT evaluation
for her left shoulder the following month, on June 23, 2021. Ex. 9 at 11. The record
indicates that the onset of her pain was sudden, beginning on October 9, 2020 following
a “flu shot gone wrong.” Id. at 11, 21, 28. Her left shoulder range of motion (“ROM”) was
3 The record includes a Vaccine Adverse Event Reporting System (“VAERS”) report submitted on the same
day as Petitioner’s first steroid injection (May 24, 2021). Ex. 10. The report is for an incident relating a flu
vaccine administered on October 6, 2020 – three days before Petitioner’s vaccination – with an onset date
of October 7, 2020 – two days before vaccination. Id. Some of the demographic details in the VAERS report
appear to match Petitioner, but the vaccination date does not, and VAERS reports do not include the
patient’s name. For these reasons, and because VAERS reports are not of significant evidentiary value in
any event (because they contain only self-reported information that is not submitted for purposes of
receiving medical treatment), I do not give this report any weight.
3

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mildly reduced in all planes compared to her right shoulder.4 Id. at 11. She rated her pain
as four out of ten, stating that it was intermittent and ranged between two and six, and
was generally worst at night and best in the morning. Id. at 21.
Petitioner attended two more PT sessions in July 2021. Ex. 9 at 25. At her final
session on July 14th, she was feeling better, but still had soreness with reaching. Id. Her
left shoulder ROM had improved, but she still had pain at end ranges. Id. at 10, 25.
Petitioner did not seek further care for her shoulder for over five months. On
December 27, 2021, she returned to Dr. Holthusen. Ex. 8 at 30. Her previous cortisone
injection had provided “great relief” for three months, but over the last couple of months
her pain had been increasing. Id. Dr. Holthusen administered another cortisone injection
and recommended that she continue home exercises. Id. at 30-31.
Following another lengthy treatment gap, Petitioner returned to Dr. Holthusen on
August 29, 2022 (eight months from December 2021). Ex. 11 at 9. Her pain had returned
since her last injection, and she wanted to discuss other options. Id. Dr. Holthusen
ordered a left shoulder MRI to determine if there was any pathology other than bursitis.
Id. at 9-10. The MRI record states that Petitioner had a history of “[l]eft shoulder pain for
2 years.” Id. at 11. The MRI showed mild supraspinatus tendinosis, mild degenerative
arthrosis, and labral fraying/degenerative tearing. Id. at 12.
Petitioner saw orthopedist Dr. Charles Eggert to review the MRI on September 30,
2022. Ex. 11 at 14. She explained that following a flu vaccine she had significant pain and
burning sensation, which had been ongoing for two years and was slowly improving. Id.
She rated her pain as two out of ten, which she considered “livable.” Id. Dr. Eggert
recommended continued observation and home exercises, with a repeat steroid injection
if she experience a flareup of symptoms. Id. There are no further treatment records.
B. Testimonial Evidence
Petitioner submitted an affidavit and three declarations in support of her claim. Exs.
3, 12, 13, 14. When Petitioner received the flu vaccine, she was sitting in a chair and the
nurse was standing. Ex. 3 at ¶ 4. When the nurse pulled the needle out, she said “Oh, it
broke” and that it “was weird.” Id. Petitioner thought it was strange, but because the nurse
did not seem too concerned, she did not inquire about it. Id.
Twenty-four hours after receiving the vaccine, Petitioner’s shoulder began hurting.
Ex. 3 at ¶ 5. She thought it was normal injection-related pain and expected it to improve
with time, but instead it continued to get worse. Id. After a week, it had become “incredibly
painful.” Id. She took ibuprofen and modified her activities, hoping it would improve. Id.
4 Petitioner’s ROM in flexion was 143 degrees on the left and 157 degrees on the right; in abduction, 143
degrees on the left and 160 degrees on the right; and in extension, 62 degrees on the left and 70 degrees
on the right. Ex. 9 at 11.
4

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She could not sleep on her left side anymore, and was fatigued every day because she
did not sleep well. Id. She could no longer do her online exercise class because so many
movements caused pain. Id. Her shoulder “ached constantly” and the pain was “intense.”
Id. She had pain while brushing her hair, and showering was difficult. Id. She could not
go grocery shopping without help because she could not lift heavy items into the cart. Id.
Petitioner’s shoulder pain seemed to get worse, with periods of relief, over the next
couple of months. Ex. 3 at ¶ 6. Sometimes she would hear a crackle or pop when she
moved her shoulder, and she felt a “weird sensation that feels like I have a tunnel in my
arm where the needle went in.” Id. Her husband thought she should go back to the doctor,
but she was nervous about COVID-19 exposure, as she was taking care of two
grandchildren three days a week as well as visiting and helping her 89 year old mother
once or twice a week. Id. For those reasons, she continued using ibuprofen and ice and
hoping the pain would go away eventually. Id.
Petitioner adds that she did not initially seek medical treatment for her left shoulder
because she did not consider it an emergency. Ex. 12 at ¶ 2. During this time, she sought
in-person care for eye surgery and a surgical follow-up appointment. Id. She explains that
the eye surgery was required as she “had cancer in [her] eye.”5 Id. She adds that she
“obviously did not report any shoulder symptoms to my eye doctor as I did not think it was
appropriate to discuss my shoulder with an eye specialist, nor was I asked about my
shoulder at these appointments.” Id.
Petitioner adds that she did not have a virtual appointment or call or email her
doctor about her shoulder pain in the initial months after vaccination because she thought
the pain would go away. Ex. 12 at ¶ 3. Furthermore, she expected that if she did call or
email, her doctor would schedule an in person appointment – which she wanted to avoid
during this time for conditions that she did not deem serious or an emergency. Id.
When her shoulder had not improved by January 2021, Petitioner worried that part
of the needle might have broken off in her arm, and saw Dr. Lewis. Ex. 3 at ¶ 8. She was
very concerned about COVID-19 exposure, but “could not take the pain and the sleepless
nights anymore.” Id. She had also searched online ‘why does my shoulder still hurt 3
months after getting a vaccine?’ and learned about SIRVA, and that others had
experienced what she had. Id.
Dr. Lewis did not think the needle was in Petitioner’s arm, and did not think imaging
was needed, recommending PT instead. Ex. 3 at ¶ 9. Petitioner opted to do home
5 Petitioner asserts that her October 2020 eye surgery was due to cancer. Although I have no reason to
question her assertion, Petitioner has not cited, and I have not noted, any medical records that would
support it. For purposes of this Decision, it does not matter whether the surgery was for cancer or another
pressing condition (which I find the medical records support this was, given that her condition was
obstructing her vision). Ex. 7 at 10.
5

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exercises using resources she found online. Id. at ¶ 9. Unfortunately, these exercises did
not seem to help, and some of them hurt. Id. at ¶ 10. During this time, her shoulder pain
persisted, with some days being worse than others. Id. at ¶ 10. She used her left arm as
little as possible, using her right arm for almost everything. Id.
In the beginning of April, Petitioner’s daughter – who knew she had shoulder pain
from a vaccination – noticed that Petitioner was still suffering, and told a friend who is a
nurse about it. Ex. 3 at ¶ 11. The friend told Petitioner’s daughter about the Vaccine
Program. Id. Petitioner then called Dr. Lewis to ask about an x-ray or MRI. Id. Dr. Lewis
wanted to see PT records, which Petitioner did not have because she had done exercises
at home due to COVID. Id. Petitioner then decided to see an orthopedist. Id.
Dr. Holthusen took an x-ray and confirmed that there was not a piece of needle in
Petitioner’s shoulder. Ex. 3 at ¶ 12. He explained that she had inflammation in her bursa
that was causing her symptoms. Id. The cortisone injection she received in May 2021
made her shoulder feel “a lot better.” Id. at ¶ 14. At this point, she had received COVID
vaccines and felt better about going to a clinic, so she started PT in June. Id. Her therapist
gave her exercises to work on at home. Id. She did three PT sessions and did not return
because she felt it was a waste of money, as she could do the exercises on her own at
home. Id.
In early August 2021, Petitioner’s shoulder pain started to return. Ex. 3 at ¶ 15.
The pain worsened, and in late December 2021 she received a second cortisone
injection. Id. at ¶ 17.
In a declaration signed on January 12, 2024, Petitioner states that she still needs
help with jackets because her arm does not bend the way it used to, and if it does, it
causes pain. Ex. 12 at ¶ 6. She sometimes “get[s] stuck in my coat like a two year old if I
don’t have help.” Id. She continues to experience pain when reaching behind to her left.
Id. And she still cannot sleep on her left arm or do exercises that put weight on her left
shoulder. Id.
Petitioner requested that Dr. Holthusen amend his record because it was
inaccurate. Ex. 12 at ¶ 4. She had not reviewed her medical records until after she
engaged an attorney, and when she discovered the inaccuracy, she requested the
amendment in good faith. Id. She does not believe that Dr. Holthusen would have
amended his note if he thought her request was for an improper purpose. Id.
Theodore Chalgren, Petitioner’s husband, submitted a declaration on her behalf.
Ex. 13. He states that when Petitioner came home after vaccination, she told him that her
shoulder was aching, but she assumed it was normal injection-site soreness. Id. at ¶ 4.
Therefore, Petitioner said she would try to “tough it out” until the pain dissipated. Id.
Instead the pain worsened every day, expanding from just the injection site to her entire
6

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shoulder. Id. Mr. Chalgren became alarmed at seeing Petitioner wince in pain from simple
motions such as reaching for a coffee cup. Id.
Mr. Chalgren explains that Petitioner “is not one to complain.” Ex. 13 at ¶ 5. She
believed that the pain would go away and tried to work through it, doing exercises at
home. Id. During this time, he had to help her with many tasks she previously could do
on her own. Id. Petitioner’s sleep quality, and her quality of life, suffered. Id. Their son
bought a baby carrier to help her hold her grandchild. Id.
Attached to Mr. Chalgren’s declaration is an unsigned statement dated September
17, 2021.6 Ex. 13 at 4. Mr. Chalgren states that Petitioner’s shoulder pain began the
evening of vaccination, and recounts an episode where Petitioner had difficulty reaching
for a glass on the end table while they watched television. Id.
Petitioner’s son, Zack Chalgren, submitted a declaration in support of Petitioner’s
claim. Ex. 14. Petitioner has helped care for his children (Petitioner’s grandchildren) for
years, and Zack affirms that there are things Petitioner could do before her injury that she
can no longer do. Id. at ¶ 3. She cannot hold the baby without a baby carrier. Id. She
moves cautiously when performing simple tasks such as washing dishes, folding laundry,
or sweeping. Id. She cannot play with her grandchildren with the same energy, and he
has witnessed her guarding her shoulder. Id.
Attached to Zack Chalgren’s declaration is a signed statement from him dated
March 3, 2022.7 Ex. 14 at 3. Zack states that Petitioner cares for his children several days
a week while he works at home. Id. After Petitioner’s October 2020 vaccination, he states
that there was “an obvious change in her physical movements and abilities.” Id. When
she arrived in the morning, she would “wince with pain as she tried to take her coat off,”
leading him to help her with this – something that had never happened before vaccination.
Id. She also modified how she did other household tasks such as lifting her grandchildren,
opening doors, folding laundry, and vacuuming. Id. Some days, the pain was too much
and she had to leave early. Id.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
preponderantly demonstrate all matters required under Section 11(c)(1), including the
6 In his declaration, Mr. Chalgren refers to this statement and states that it is a “true and correct copy of my
statement dated September 17, 2021.” Ex. 13 at ¶ 2.
7 In his declaration, Zack Chalgren refers to this statement and states that it is a “true and correct copy of
my statement dated March 3, 2022.” Ex. 14 at ¶ 2.
7

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factual circumstances surrounding his or her claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section
13(a)(1). Petitioner’s allegations must be supported by medical records or by medical
opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received and the lack of
other award or settlement,8 a petitioner must establish that he or she suffered an injury
meeting the Table criteria, in which case causation is presumed, or an injury shown to be
caused-in-fact by the vaccination he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
or condition for more than 6 months after the administration of the vaccine . . . .” Section
11(c)(1)(D).
“[T]he fact that a Petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013, 2019 WL 978825, at *4
8 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 and has not filed a civil suit or collected an award or settlement for his or her injury. Section
11(c)(1)(A)(B)(E).
8

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(Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (“a discharge
from medical care does not necessarily indicate there are no residual effects”). “A
treatment gap . . . does not automatically mean severity cannot be established.” Law v.
Sec’y of Health & Human Servs., No. 21-0699V, 2023 WL 2641502, at *5 (Fed. Cl. Spec.
Mstr. Feb. 23, 2023) (finding severity requirement met where Petitioner sought care for
under three months and had met physical therapy goals but still lacked full range of motion
and experienced difficulty with certain activities, then returned to care nearly five months
later reporting stiffness and continuing restrictions in motion); see also Peeples v. Sec’y
of Health & Human Servs., No. 20-0634V, 2022 WL 2387749 (Fed. Cl. Spec. Mstr. May
26, 2022) (finding severity requirement met where Petitioner sought care for four months,
followed by fifteen month gap); Silvestri v. Sec’y of Health & Human Servs., No. 19-
1045V, 2021 WL 4205313 (Fed. Cl. Spec. Mstr. Aug. 16, 2021) (finding severity
requirement satisfied where Petitioner did not seek additional treatment after the five
month mark.
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
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;
9

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(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
B. Parties’ Arguments on Entitlement
Petitioner argues that the fact that she did not seek medical treatment within 48
hours of vaccination does not mean that her shoulder pain did not begin within this
window. Petitioner’s Motion for Ruling on the Record, filed Jan. 29, 2024, at *10 (ECF No.
39) (“Mot.”). Petitioner has submitted testimonial evidence stating that her pain began
less than 48 hours after vaccination, and her subsequent medical records are consistent
with that contention. Mot. at *10-15. It is common for a SIRVA petitioner to delay
treatment, thinking that the injury will resolve on its own. Id. at *12. And “it is logical to
assume petitioner may have discounted his shoulder injury until educating himself
through internet research regarding SIRVA.” Id. (citing Smallwood v. Sec’y of Health &
Human Servs., No. 18-0291V, 2020 WL 2954958, at *10 (Fed. Cl. Spec. Mstr. Apr. 29,
2020).
Petitioner also argues that postponing treatment for a limited number of months
does not establish that the onset of pain did not occur immediately following vaccination.
Mot. at *13. Although Petitioner had unrelated in-person care soon after vaccination, she
notes that “this was with an eye specialist for cancer removal.”9 Id. Petitioner asserts that
the fact that she did not mention her shoulder pain to her eye doctor does not mean that
her shoulder pain was not present, citing Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383-84 (Fed. Cir. 2021) (“a patient having a heart attack is not likely to
mention his runny nose, nor is his physician likely to record it”). Id.
Respondent emphasizes “petitioner’s delayed presentation for care,” and argues
9 Petitioner has not cited medical records for the proposition that her eye surgery was related to cancer.
10

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that absent contemporaneous corroborating evidence, “the subjective statements of
petitioner and her family alone do not establish that her alleged injury satisfied the SIRVA
Table requirements.” Respondent’s Response, filed Apr. 8, 2024, at *7 (ECF No. 41)
(“Resp.”). Respondent views the actual onset of Petitioner’s left shoulder symptoms as
“unknown as she did not present for care of her left shoulder until January 6, 2021, almost
three months after her October 2020 flu vaccination.” Resp. at *8. In describing the onset
of her pain to treaters, Petitioner did not specify the date on which her symptoms began
and “consistently made vague statements about the onset of her pain,” using words such
as since, after, or following vaccination, and alluding to a “flu shot gone wrong.” Id.
Respondent adds that Petitioner told Dr. Holthusen that she “did fine initially” after
vaccination, but had pain only the next week. Resp. at *8. After engaging counsel,
moreover, Petitioner requested that Dr. Holthusen amend this record – 16 months after
vaccination, and over nine months after the record was created. Id. Respondent asserts
that there are “no contemporaneous medical records or other objective evidence to
corroborate” Petitioner’s testimonial statements. Id. And Respondent contends that I
cannot make a finding of fact based on witness testimony alone. Id. at *9 (citing Clavio v.
Sec’y of Health & Human Servs., No. 17-1179V, 2020 WL 1672956, at *7 (Fed. Cl. Spec.
Mstr. Mar. 11, 2020), and Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525,
1528 (Fed. Cir. 1993). Id.
Respondent further argues that it is “speculative to assign a specific date of onset,”
asserting that onset may have occurred any time from one week after vaccination (as Dr.
Holthusen ‘s unamended May 2021 record suggests) to January 2021 (when Petitioner
first presented for care). Resp. at *10. Given that Petitioner sought care for other
conditions and delayed seeking care for her shoulder, Respondent asserts that the court
should afford little weight to Petitioner’s testimonial evidence. Id.
In reply, Petitioner emphasizes that when she first sought care, she reported left
shoulder pain since her October 2020 vaccination. Petitioner’s Reply, filed Apr. 22, 2024,
at *1 (ECF No. 42) (“Reply”) (emphasis in original). And citing Dr. Holthusen’s amended
record, Petitioner asserts that she told him she had initial injection-related pain. Reply at
*1.
Although medical records “do not point with precision to a 48-hour onset, they are
entirely consistent” with such an onset. Reply at *2. And “one cannot reasonably expect
that treating physicians would include precise onset information relevant only to this legal
proceeding” in their records. Id. (citing Goldman v. Sec’y of Health & Human Servs., No.
16-1523V, 2020 WL 6882186, at *15 (Fed. Cl. Spec. Mstr. Nov. 2, 2020), and Niemi v.
Sec’y of Health & Human Servs., No. 19-1535V, 2021 WL 4146940, at *4 (Fed. Cl. Spec.
Mstr. Aug. 10, 2021)). Petitioner argues that the Vaccine Act “does not require that
symptoms be recorded within a specific timeframe to be preponderantly established” –
rather, it requires only that onset occur within the relevant timeframe. Reply at *2. And the
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fact that she did not report shoulder pain to her eye surgeon does not mean that she was
not experiencing shoulder pain at the time of her surgery. Id. at *4.
With respect to Petitioner’s request that Dr. Holthusen amend his May 5, 2021
record, Petitioner argues that patients have a right under federal law to seek changes to
inaccurate records. Reply at *4. Petitioner asserts that it is unfair for her request for a
record amendment that was ultimately granted to be treated as suspect. Id. Petitioner
believes that if she had not requested amendment of her record, “the inaccurate medical
record would simply be used against her.” Reply at *4-5. This accordingly leaves her in a
no-win situation. Id.
C. Factual Findings on Onset
I find that the record preponderantly supports a finding that the onset of Petitioner’s
shoulder pain likely began within 48 hours of vaccination. It is true that Petitioner did not
seek care until nearly three months after vaccination. But I have previously found that it
is not uncommon for SIRVA petitioners to delay seeking care, in hopes that their condition
will resolve without formal treatment. See Diaz v. Sec’y of Health & Human Servs., No.
20-1003V, 2023 WL 8440873, at *8 (Fed. Cl. Spec. Mstr. Nov. 1, 2023) (finding onset
occurred on day of vaccination, even though the petitioner did not seek treatment until
over three months later); Graczyk v. Sec’y of Health & Human Servs., No. 21-0376V,
2023 WL 4573868 (Fed. Cl. Spec. Mstr. June 16, 2023) (finding onset within 48 hours
where Petitioner first sought care two months after vaccination).
In addition, although there is no requirement that a medical record specify the date
of onset of symptoms, in this case there is a medical record with this information – and
as the most contemporaneous medical record, it merits weight. See Ex. 4 at 214 (“[l]eft
shoulder pain since flu vaccine on 10/9/2020”). This is compelling evidence, which is well-
supported by additional medical records and testimonial evidence. I disagree with
Respondent’s suggestion that onset is unknown or speculative because Petitioner did not
present for care until nearly three months after vaccination. The Vaccine Act allows
special masters to make a variety of fact findings via the standard of preponderant
evidence. Roberson v. Sec’y of Health & Human Servs., No. 21-2309V, 2025 WL 605724,
at *7 (Fed. Cl. Spec. Mstr Jan. 24, 2025) (a specific onset date is not required; rather, a
petitioner may demonstrate onset by preponderant evidence). And the Vaccine Act
specifically contemplates that the onset may not be recorded, or may be recorded
incorrectly, requiring a factual finding by a special master. Section 13(b)(2).
Admittedly, the unamended version of Petitioner’s May 5, 2021 appointment with
Dr. Holthusen could suggest an onset of one week after vaccination. Ex. 8 at 8. If this
were the only medical record documenting the onset of Petitioner’s shoulder pain, or even
the first treatment record, Respondent’s opposition would merit greater weight. But the
most contemporaneous record – the January 2021 appointment with Dr. Lewis, which
occurred just under three months after vaccination – states that Petitioner’s pain had been
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present since vaccination. Ex. 4 at 212. And Dr. Holthusen later amended his record –
suggesting that he did not consider Petitioner’s requested amendment to be inaccurate.
Finally, Petitioner told her physical therapist that her pain began on the date of vaccination
with a “flu shot gone wrong.” Ex. 9 at 11, 21, 28.
The fact that Petitioner requested amendment of Dr. Holthusen’s record neither
helps nor harms her case with respect to onset, in light of the circumstances of this case.
Admittedly, there are situations in which a request to amend a record raises questions
about the accuracy of the proposed amendment. But in this case, there is no reason to
believe that Petitioner requested the amendment for an improper purpose. This is
because the amendment that she requested is consistent with the remaining medical
records – suggesting the medical record may in fact have been inaccurate. And of course,
the fact that Dr. Holthusen actually amended the record speaks to his belief that Petitioner
was correct about the record’s inaccuracy.
D. Factual Findings on Remaining SIRVA QAI Criteria and Statutory
Requirements
The remaining QAI requirements are not disputed,10 and I find that they are
preponderantly satisfied. The record does not contain preponderant evidence that
Petitioner had a history of left shoulder pain or any other condition that would explain her
post-vaccination symptoms. Ex. 4. She exhibited reduced ROM, and her pain and ROM
limitations were limited to the vaccinated shoulder. Ex. 8 at 8; Ex. 9 at 11.
The statutory requirements are also preponderantly established. Petitioner
received a covered vaccine in the United States. Ex. 1 at 6. She experienced residual
effects of her injury for more than six months. Ex. 8 at 8. And she states that she has not
previously collected an award or settlement of a civil action for damages for her vaccine-
related injury. Ex. 3 at ¶ 19. Thus, Petitioner is entitled to compensation.
III. Damages
A. Legal Standard
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Section I-II of Timberlake v. Sec’y of
Health & Human Servs., No. 20-1905V, 2025 WL 721730 (Fed. Cl. Spec. Mstr. Feb. 19,
10 Respondent confirms that other than onset, “[t]he other SIRVA Table QAI requirements are met.” Resp.
at *7 n.3.
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2025).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.00,” in addition to certain unreimbursable
expenses resulting from the vaccine-related injury. Section 15(a)(1), (a)(4). The petitioner
bears the burden of proof with respect to each element of compensation requested.
Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23
(Fed. Cl. Spec. Mstr. Mar. 18, 1996). Factors to be considered when determining an
award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury;
and 3) duration of the suffering.11
B. Parties’ Damages Arguments
Petitioner seeks a pain and suffering award of $75,000.00, relying on decisions in
Attig and Marino, both of which involved awards of this magnitude.12 Mot. at *21-22.
Petitioner also requests out of pocket expenses, including travel expenses relating to her
care, in the amount of $302.34. Id. at *22.
Petitioner underwent two cortisone injections, three PT sessions, an MRI, and x-
rays. Mot. at *19. While her initial treatment was delayed due to COVID, she had a total
of ten visits for SIRVA-related treatment, in addition to doing home exercises. Id. At her
May 2021 orthopedist appointment, she rated her pain eight out of ten with activity. Id.
The following month, her pain ranged between two and six out of ten, having improved
after a cortisone injection the previous month. Id.
Petitioner experienced pain that disturbed her sleep, and made it difficult to get
dressed, hold her grandchildren, lift weights, and reach behind her. Mot. at *19. She
asserts that her pain and limitations have continued for over three years – although her
last medical appointment for her shoulder was less than two years after vaccination, with
lengthy gaps before that time, and her last treatment intervention was her second
cortisone injection just over a year after vaccination. Id.
Respondent proposes a pain and suffering award of $22,000.00. Resp. at *13.
Respondent characterizes Petitioner’s injury as a mild SIRVA based on her delayed
presentation, limited treatment, and repeated treatment gaps. Id. at *14-15. Respondent
cites decisions in Ramos, Mejias, McGraw, and Valdez, with pain and suffering awards
11 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr.
May 14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).
12 Attig v. Sec’y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb.
19, 2019); Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 2018 WL 2224736 (Fed. Cl. Spec.
Mstr. Mar. 26, 2018).
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from $35,000.00 to $45,000.00, as comparable cases.13 Id. at 15-16. Respondent argues
that an award of $75,000.00 “is not consistent with the medical records” or precedent,
and that his proposed award of $22,000.00 “reflects the weaknesses of the instant case.”
Id. at 15, 21 n.12.
Respondent argues that Attig and Marino are not good comparables, since they
involved petitioners with more severe injuries. Id. at *18-20. The Attig petitioner, for
example, sought treatment within two weeks of vaccination, attended more PT, and had
higher pain ratings. Id. And Respondent emphasizes that Marino is now over six years
old, and suggests that Petitioner’s “selective citation to Marino suggests that the case
may be an outlier, when compared to more recent cases.” Id. at *20 n.11. Additionally,
Marino involved a more serious injury, with higher pain ratings and greater ROM deficits
and MRI findings. Id. at *20-21. Respondent proposes an award lower than McGraw and
Valdez, citing Petitioner’s initial treatment delay and lengthy treatment gaps. Id. at *17-
18.
Respondent agrees that Petitioner is entitled to reimbursement of $267.90 for
uncontested unreimbursed medical expenses, but argues that reimbursement for related
travel expenses should be at the IRS medical mileage rate rather than the business rate,
which would result in reimbursement of $290.60 in unreimbursed expenses. Resp. at *13,
21 n.13. Although in this case the difference between applying the medical and business
rates is only $11.74, Respondent asserts that “a sound determination as to the
appropriate mileage rate is crucial as it has broad implications in all Program cases
involving reimbursement for vaccine-related travel expenses.” Id. at *22 n. 14.
Respondent contends that the IRS medical rate is the appropriate rate for
calculation of Petitioner’s travel expenses related to medical appointments for her vaccine
injury. Resp. at *21-25. Respondent argues that the special master in Williams v. Sec’y
of Health & Human Servs., No. 90-2239V, 1996 WL 608455 (Fed. Cl. Spec. Mstr. Oct.
10, 1996) applied the IRS “business rate” rather than the “medical rate,” and that special
masters have subsequently relied on Williams and applied the business rate. Id.
Respondent views Williams as flawed and urges that I decline to follow it and apply the
lower medical rate. Id.
Petitioner replies that Respondent’s proposed award of $22,000.00 is “far below
other reasoned awards.” Reply at *5. Petitioner asserts that McGraw involved a very mild
SIRVA lasting barely six months, with treatment limited to office visits, x-rays, an MRI,
13 Ramos v. Sec’y of Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan.
4, 2021 (awarding $40,000.00 in pain and suffering); Mejias v. Sec’y of Health & Human Servs., No.19-
1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov. 10, 2021 (awarding $45,000.00 in pain and suffering);
McGraw v. Sec’y of Health & Human Servs., No. 21-72V, 2024 WL 1160065 (Fed. Cl. Spec. Mstr. Feb. 15,
2024) (awarding $37,500.00 in pain and suffering); and Valdez v. Sec’y of Health & Human Servs., No.21-
394V, 2024 WL 1526536 (Fed. Cl. Spec. Mstr. Feb. 28, 2024) (awarding $35,000.00 in pain and suffering).
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and Traumeel injections. Id. And Valdez involved seven months of conservative
treatment, including a petitioner who declined a steroid injection because her pain was
not severe enough. Id. at *6. Ramos involves a lengthier initial treatment delay, and
Petitioner argues a shorter overall injury – although I find the injury duration in this case
to be similar to that in Ramos. Id.
C. Appropriate Compensation for Pain and Suffering
I find that Petitioner’s injury was largely resolved within 15 months, when she
received her second steroid injection in late December 2021. Although she later returned
to care in August and September 2022, at that time her pain was “livable” and no active
treatment interventions occurred. I also note that this care occurred after a treatment gap
of eight months, and occurred during litigation. Moreover, Petitioner’s injury was on the
milder side, as exemplified by her initial delay in seeking care and significant gaps of four
months after her first consultation and five months after her first steroid injection (in
addition to the eight month gap after her second steroid injection).
The cases Petitioner cites are not on point. Marino was decided seven years ago,
at a time when there were only two other published reasoned SIRVA damages decisions.
Marino, 2018 WL 2224736, at *7. As of January 2025, by contrast, there were 270
reasoned SIRVA damages decisions. Timberlake, 2025 WL 721730, at *2. And Attig was
decided over six years ago. In addition, the Attig petitioner sought treatment just two
weeks after vaccination – much sooner than Petitioner. Both petitioners had similar MRI
findings, and both had steroid injections, with Petitioner having two and the Attig petitioner
having one. The Attig petitioner attended more PT. In short, I am not convinced that the
award in this case should approach that of Marino and Attig. Although Petitioner is, of
course, free to cite valid precedent, the persuasive value of older damages decisions may
be lower, particularly where (as here) those cases are not particularly good comparisons.
The closest cases cited by the parties are Ramos and Mejias. The Ramos
petitioner delayed seeking care longer than Petitioner, but once he sought care he did so
persistently, without lengthy gaps – contrasted with Petitioner, who not only did not seek
care until nearly three months after vaccination, but thereafter had treatment gaps of four
and five months during her treatment course. The Ramos petitioner had more severe
ROM limitations and participated in more PT, but did not receive any steroid injections.
This case also has similarities to Mejias. Although the Mejias petitioner sought care
only two days after vaccination – suggesting a more concerning injury – that case is
similar to Petitioner’s case in that both petitioners had treatment gaps. However,
Petitioner’s injury duration is somewhat longer, and she received two steroid injections
and attended three PT sessions, while the Mejias petitioner did not do PT or receive a
steroid injection (though one was offered).
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Petitioner’s case combines significant factors that limited damages in Ramos and
Mejias: the initial treatment delay of Ramos and the treatment gap in Mejias. And
Petitioner obtained good pain relief from her two cortisone injections. I acknowledge that
Petitioner was understandably concerned about COVID exposure and protecting loved
ones, particularly before receiving COVID vaccinations. However, as Petitioner herself
acknowledges, she did not consider her shoulder to be an emergency – and if she had,
she would have sought care more urgently.
Because this case combines weaknesses of Ramos and Mejias, if Petitioner’s
injury were otherwise comparable, an award lower than both of those cases might be
appropriate. However, Petitioner received two steroid injections, while those petitioners
did not receive any. And the petitioners in those cases otherwise appear to have had
more ROM limitations, but a shorter overall duration. Although I find that Petitioner’s injury
was largely resolved by December 2021, the record does support that she had some
residual pain at the two-year mark the following year, bolstering the value of her claim
somewhat. Arriving at a pain and suffering award is not an exact science. Having
reviewed the record and considered the pleadings, I find that a pain and suffering award
of $40,000.00 is fair and appropriate.
D. Travel Expenses for Medical Care – Mileage
The parties disagree what rate should be applied for Petitioner’s travel related to
treatment of her vaccine injury. I have addressed this question, and Respondent’s
arguments on the matter, in several decisions. Walter v. Sec’y of Health & Human Servs.,
No. 21-1461V, 2024 WL 1299576 (Fed. Cl. Spec. Mstr. Feb. 27, 2024); Tappendorf v.
Sec’y of Health & Human Servs., No. 20-1592V, 2024 WL 1299566 (Fed. Cl. Spec. Mstr.
Feb. 23, 2024); Kleinschmidt v. Sec’y of Health & Human Servs., No. 20-0680V, 2023
WL 9119039 (Fed. Cl. Spec. Mstr. Dec. 5, 2023); Gibson v. Sec’y of Health & Human
Servs., No. 20-0243V, 2022 WL 17820891 (Fed. Cl. Spec. Mstr. Oct. 5, 2022).
Despite Respondent’s views of Williams, I have embraced its holding as more in
sync with the remedial goals of the Program (awarding petitioners their actual
unreimbursable expenses – which includes not just the operating costs of a vehicle, but
also the fixed costs that the “business rate” takes into consideration). Tappendorf, 2024
WL 1299566, at *6. As such, application of the business rate results in a reasonable
award. Accordingly, I award reimbursement for travel expenses related to Petitioner’s
agreed-upon out-of-pocket expenses at the “business rate.” This results in an award of
$302.34 for Petitioner’s unreimbursed expenses (the agreed-upon medical expenses of
$267.90, 14 plus travel expenses of $34.44).
14 The parties agree that this amount is reimbursable. Resp. at *21 n.13; Ex. 16.
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Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I GRANT Petitioner’s motion for a ruling on the record, and find that
Petitioner suffered an injury that meets the definition for a Table SIRVA and is
entitled to compensation. I find that $40,000.00 represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.15 Additionally, I
find that Petitioner is entitled to $302.34 in out of pocket expenses.
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum of $40,302.34, 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 that would be available under Section
15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
16 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.
18