Meagher v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1572V
Filed: February 23, 2023
PUBLISHED
Special Master Horner
LEE MEAGHER,
Petitioner, Shoulder Injury Related to
v. Vaccine Administration
(“SIRVA”); Influenza (“flu”)
SECRETARY OF HEALTH AND vaccine; Ruling on the Record
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT 1
On October 10, 2018, petitioner, Lee Meagher, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012) 2, alleging she suffered a
shoulder injury related to vaccine administration (“SIRVA”) following receipt of her
October 15, 2015, influenza (“flu”) vaccination. (ECF No. 1.) For the reasons discussed
below, I find that petitioner is entitled to compensation for a Table Injury of SIRVA.
I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
1
Because this document contains a reasoned explanation for the special master’s action in this case, it
will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the document will be available to anyone with access
to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information the disclosure of which would constitute an unwarranted invasion of
privacy. If the special master, upon review, agrees that the identified material fits within this definition, it
will be redacted from public access.
2
Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10-34.
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received it in the United States; suffered a serious, long-standing injury; and has
received no previous award or settlement on account of the injury. Finally – and the key
question in most cases under the Program – the petitioner must also establish a causal
link between the vaccination and the injury. In some cases, the petitioner may simply
demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be
shown that the vaccine recipient suffered an injury of the type enumerated in the
“Vaccine Injury Table,” corresponding to the vaccination in question, within an
applicable time period following the vaccination also specified in the Table. If so, the
Table Injury is presumed to have been caused by the vaccination, and the petitioner is
automatically entitled to compensation, unless it is affirmatively shown that the injury
was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300 aa-
11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).
As relevant here, the Vaccine Injury Table lists a Shoulder Injury Related to
Vaccine Administration or “SIRVA” as a compensable injury if it occurs within 48 hours
of administration of a vaccination. § 300aa-14(a) as amended by 42 CFR § 100.3.
Table Injury cases are guided by “Qualifications and aids in interpretation” (“QAIs”),
which provide more detailed explanation of what should be considered when
determining whether a petitioner has actually suffered an injury listed on the Vaccine
Injury Table. 42 CFR § 100.3(c). To be considered a “Table SIRVA,” petitioner must
show that her injury fits within the following definition:
SIRVA manifests as shoulder pain and limited range of motion occurring
after the administration of a vaccine intended for intramuscular
administration in the upper arm. These symptoms are thought to occur as a
result of unintended injection of vaccine antigen or trauma from the needle
into and around the underlying bursa of the shoulder resulting in an
inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal
structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is
not a neurological injury and abnormalities on neurological examination or
nerve conduction studies (NCS) and/or electromyographic (EMG) studies
would not support SIRVA as a diagnosis . . . . A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient's symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
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42 CFR §100.3(c)(10).
Vaccine Program petitioners must establish their claim by a “preponderance of
the evidence”. § 300aa-13(a). That is, a petitioner must present evidence sufficient to
show “that the existence of a fact is more probable than its nonexistence . . . .” Moberly
v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010). A
petitioner may not receive a Vaccine Program award based solely on her assertions;
rather, the petition must be supported by either medical records or by the opinion of a
competent physician. § 300aa-13(a)(1).
II. Procedural History
Based on the allegations in the petition, this case was initially assigned to the
Special Processing Unit or “SPU” for potential informal resolution. (ECF No. 9.) Over
several months, petitioner filed medical records and affidavits marked as Exhibits 1-16.
(ECF Nos. 5-7, 10, 15.) She filed a Statement of Completion on January 22, 2019.
(ECF No. 17.)
Thereafter, respondent took many months to review this case. Initially,
respondent confirmed as of August 5, 2019, that he was willing to engage in settlement
discussions. (ECF No. 27.) Petitioner provided a demand for damages to respondent
on November 19, 2019. (ECF No. 36.) At that time, petitioner also filed updated
medical records and workers’ compensation records marked as Exhibits 17-19. (ECF
Nos. 33-34.) The parties engaged in settlement discussions until July of 2020, at which
point petitioner advised that the parties had reached an impasse. (ECF No. 44.)
Respondent then filed his Rule 4(c) Report on September 14, 2020. (ECF No.
45.) Respondent recommended against compensation. With regard to petitioner’s
Table SIRVA claim, he argued that she had not demonstrated her shoulder pain began
within 48 hours of vaccination and that her injury did not appear to be limited to her
affected shoulder (i.e., issues relating to SIRVA QAI prongs one and three). With
regard to any cause-in-fact claim, respondent noted that no expert report had been filed
to provide a medical theory and he further suggested, consistent with his assessment of
the Table injury claim, that a temporal relationship was not established. (Id. at 6-10.)
A follow up status conference was held within the SPU on November 23, 2020.
(ECF No. 46.) The Chief Special Master advised that he felt that the petitioner could
likely overcome the issues raised in respondent’s report and instructed the parties to
resume settlement discussions. (Id.) Petitioner subsequently filed additional updated
medical records marked as Exhibits 20-21. (ECF No. 47.) However, as of January 29,
2021, the parties again advised that they had reached an impasse. (ECF No. 50.)
On February 9, 2021, the Chief Special Master issued a Finding of Fact holding
that petitioner had established by preponderant evidence that she experienced onset of
shoulder pain within 48 hours of the vaccination at issue, thereby resolving a significant
point of litigation. (ECF No. 51.) However, he also determined that he would transfer
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the case out of the SPU due to its age and other contested issues. (Id. at 2.) The case
was reassigned to Special Master Roth on March 3, 2021. (ECF No. 53.)
On April 5, 2021, Special Master Roth held a status conference. She advised
that:
At today’s conference, respondent’s Rule 4(c) Report was discussed,
including his concern about petitioner’s report of pain radiating down her
arm. I noted that petitioner’s medical records do not contain any reference
to cervical complaints, nor did she report tingling or numbness radiating
down her arm indicative of a radiculopathy. Petitioner’s complaints of arm
pain appear, from the record, to stem from her shoulder injury and are
consistent with complaints by many petitioners suffering from SIRVA
injuries. Overall, the medical records, which are consistent with petitioner’s
petition and affidavit, are likely supportive of entitlement.
(ECF No. 54, p. 1.) Special Master Roth recommended mediation and expressed
concern that litigation would not overcome the parties’ fundamental difference on
valuing the case and therefore ultimately waste judicial resources. (Id. at 2.)
After the parties remained unable to informally resolve the case, Special Master
Roth held a further status conference on September 3, 2021. (ECF No. 59.) During
that conference, the merits were further discussed and the parties agreed that expert
reports would not be necessary to resolve entitlement. (Id. at 2.) Special Master Roth
ordered the parties to file briefing on entitlement. (Id.)
The parties filed simultaneous briefs regarding entitlement on December 22,
2021. (ECF No. 63-64.) Thereafter, no action was taken in the case until it was
reassigned to the undersigned on February 1, 2023. (ECF No. 65.) On February 2,
2023, I issued a Scheduling Order advising as follows:
The parties filed simultaneous briefs regarding entitlement on December
22, 2021. (ECF Nos. 62-63.) The case was subsequently reassigned to the
undersigned. The parties are hereby advised that after review of the
procedural history, I have concluded that this case is ripe for resolution of
entitlement and that the parties have had a full and fair opportunity to
develop the record. Thus, I intend to resolve the question of entitlement
pursuant to Vaccine Rule 8(d). If either party has any objection, they shall
file a status report so advising by no later than Friday, February 17, 2023.
If no objection is raised, I intend to resolve entitlement as soon as
practicable based on the existing record and the parties' December 22,
2021 briefs.
(Scheduling Order (NON-PDF), 2/2/2023.)
In response to my order, petitioner filed an amended petition more explicitly
delineating that she alleges both on- and off-Table claims for her shoulder injury. (ECF
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No. 66.) However, she also filed a status report confirming the case is ripe for
resolution. (ECF No. 67.) Respondent filed no objection. Accordingly, this case is now
ripe for resolution.
III. Factual History and Respondent’s Defense
Given the procedural posture of this case and the narrow basis for respondent’s
defense following the Chief Special Master’s finding of fact, an exhaustive description of
petitioner’s medical records is not necessary. Instead, this summary will focus on the
most pertinent points raised in respondent’s December 22, 2021 brief on entitlement
and his explanation of his defense based on those facts. I do note, however, that I have
completed a review of the entire record of the case, including those medical records that
are not explicitly discussed.
Petitioner received a flu vaccine in her right arm on October 15, 2015. (Ex. 1.)
For the reasons discussed in the Chief Special Master’s prior Finding of Fact, petitioner
subsequently experienced onset of right shoulder pain within 48 hours of that
vaccination. (ECF No. 51.) Although this fact finding is not binding on me, I agree with
the Chief Special Master’s conclusion based on my own review of the complete record
and incorporate the Chief Special Master’s recitation of the facts and analysis into this
ruling on entitlement.
According to respondent’s recitation of the facts, petitioner experienced reduced
range of motion in her right shoulder that was confirmed as of a physical examination
conducted January 5, 2016. (ECF No. 62, pp. 2-3 (discussing Ex. 12, pp. 3-4).) At that
time, petitioner was diagnosed with a rotator cuff injury and physical therapy was
recommended. (Id. at 3 (discussing Ex. 12, pp. 4-5).) When petitioner reported to
physical therapy on January 28, 2016, she reported that over time her pain had begun
to radiate into her arm and hand. (Id. (discussing Ex. 6, pp. 2-4).) Petitioner ultimately
did not complete her recommended course of physical therapy. (Id. (discussing Ex. 19,
p. 4; Ex. 12, p. 6).)
Petitioner returned to her primary care provider on March 31, 2016. (ECF No.
62, p. 4 (discussing Ex. 3, pp. 13-14).) At that time she had full range of motion, but
reported pain with external rotation. She reported constant, dull, aching pain in her
shoulder. She denied weakness, numbness, or tingling. (Id.) She was again referred
to physical therapy. On July 25, 2016, she presented for a physical therapy
assessment. (Id. (discussing Ex. 8, pp. 1-2).) This assessment demonstrated
decreased strength and range of motion deficits. (Id.) Petitioner attended 36 physical
therapy sessions, but still had pain and limited range of motion at discharge. (Id.
(discussing Ex. 8, p. 53).)
On January 24, 2017, petitioner’s right shoulder was again evaluated. (ECF No.
62, p. 5 (discussing Ex. 9, pp. 8-12).) Petitioner reported pain with internal rotation and
mildly positive Hawkins impingement signs. She had near normal range of motion,
except for mildly decreased abduction. She had no weakness. An MRI showed a high-
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grade tear of the right supraspinatus tendon. (Id.) When petitioner returned for a follow
up on February 1, 2017, she had trace weakness and mild right shoulder impingement.
She was administered a subacromial cortisone injection. (Id. (discussing Ex. 9, p. 6).)
Petitioner returned for care on February 14, 2017, now reporting bilateral
shoulder pain. (ECF No. 62, p. 5 (discussing Ex. 9, pp. 4-5).) The cortisone injection
had not helped and petitioner felt her left shoulder pain was due to overuse from
compensating for her right shoulder pain. She received a cortisone injection in her left
shoulder. (Id.) Petitioner had fluoroscopic guided injections in the right shoulder on
March 22, 2017, and November 30, 2017. (Id. at 5-6 (discussing Ex. 10, pp. 21-22; Ex.
3, p. 38).) Petitioner had an MRI of her left shoulder on December 18, 2017. (Id. at 6
(discussing Ex. 13, p. 3).) It showed “a moderate grade partial thickness tear at the
posterior interval of the distal supraspinatus, . . . mild acromioclavicular join
osteoarthritis, . . . [and] trace fluid within the subacromial bursa, compatible with early,
resolving bursitis[.]” (Id.)
Petitioner had a further follow up on December 14, 2017, which showed that her
condition had not resolved. (ECF No. 62, p. 6 (discussing Ex. 13, p. 1).) According to
respondent, no further relevant medical records have been filed. (Id.)
Based on the above, respondent contends that petitioner “has not provided
preponderant evidence demonstrating the requisite facts to establish compensation for
petitioner’s alleged SIRVA. Specifically, petitioner’s pain does not appear to be limited
to her right shoulder, as required by the QAI.” (ECF No. 62, p. 8.) In support of this
contention, respondent indicates that “[t]he first time she presented for PT, she reported
that her right shoulder pain radiated down her right arm into her hand.” (Id. at 8-9 (citing
Ex. 6, pp. 2-4).) This is the sole argument respondent advances against petitioner’s
Table injury claim and the full extent of respondent’s argument on that question. (Id.)
IV. Discussion
With regard to the third SIRVA criterion, which requires that the petitioner’s pain
and reduced range of motion be limited to the shoulder at issue, the government
addressed this QAI criterion in response to public comment. 82 Fed. Reg. 6294 (Jan.
19, 2017). For clarity and context, the comment summary and response are worth
quoting in full:
Comment: A commenter suggested that shoulder injury related to vaccine
administration (SIRVA) as defined in the QAI is too restrictive because the
recipient's pain and reduced range of motion must be limited to the shoulder
in which the intramuscular vaccine was administered. The commenter
stated that such language was an artificial and unnecessary qualification,
and expressed concern that recipients who have other symptoms, such as
shoulder pain radiating to the neck or upper back, will not have the benefits
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of a Table injury. The commenter suggested that the QAI be expanded to
include the shoulder and parts of the body attributed to that injury.
Response: SIRVA is a musculoskeletal condition caused by injection of a
vaccine intended for intramuscular administration into the shoulder, and, as
its name suggests, the condition is localized to the shoulder in which the
vaccine was administered. In other words, pain in the neck or back without
an injury to the shoulder in which an individual received a vaccine would not
be considered SIRVA. Shoulder injuries that are not caused by injection
occur frequently in the population. Thus, it is important to have a definition
of SIRVA that is clearly associated with vaccine injection. The portion of the
QAI limiting the pain and reduced range of motion to the shoulder in which
the vaccine was administered is necessary to accurately reflect the
vaccine-associated condition.
82 Fed. Reg. 6294, 6296.
As I have indicated in prior cases, the government’s comment response reveals
that the third SIRVA criterion is intended to ensure that SIRVA claims are limited to
instances in which “the condition is localized to the shoulder in which the vaccine was
administered” (emphasis added). Thus, it is clear that the gravamen of this requirement
is to guard against compensating claims involving patterns of pain or reduced range of
motion indicative of a contributing etiology beyond the confines of a musculoskeletal
injury to the affected shoulder. Grossman v. Sec’y of Health & Human Servs., No. 18-
13V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022). The Chief Special
Master has reached the same conclusion on multiple occasions. E.g., Cross v. Sec’y of
Health & Human Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr.
Jan. 6, 2023) (finding that “despite the notations of pain extending beyond the shoulder,
Petitioner’s injury is consistent with the definition of SIRVA and there is not
preponderant evidence of another etiology.”); K.P. v. Sec’y of Health & Human Servs.,
No. 19-65V, 2022 WL 3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022) (holding that
“claims involving musculoskeletal pain primarily occurring in the shoulder are valid
under the Table even if there are additional allegations of pain extending to adjacent
parts of the body.”); Werning v. Sec'y of Health & Human Servs., No. 18-0267V, 2020
WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that a petitioner
satisfied the third SIRVA QIA criterion where there was a complaint of radiating pain,
but the petitioner was “diagnosed and treated solely for pain and limited range of motion
to her right shoulder.”)
Even by respondent’s own recitation of the facts, post-vaccination petitioner had
a multi-year course of treatment that focused exclusively on her condition as relating to
her shoulder, inclusive of a diagnosis of a rotator cuff injury later confirmed by MRI. In
the face of this history, respondent relies on a single notation by a physical therapist,
not a physician, documenting an isolated subjective report by petitioner that “sometimes
pain radiates all the way to R hand” and that “over time pain has radiated into arm 
hand.” (Ex. 6, pp. 2, 4.) Petitioner had been referred to this physical therapist with a
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diagnosis of “right rotator cuff tendonitis” (Ex. 6, p. 7), and nothing in the physical
therapist’s records indicate that the physical therapist questioned that diagnosis based
on petitioner’s description of her symptoms or otherwise concluded the report had any
specific diagnostic implications (Ex. 6, passim). Nor has respondent highlighted any
instance where petitioner ever subsequently raised this concern with any of her treating
physicians. And, as Special Master Roth previously observed, there is no other record
that evidences any other condition that would explain this reported symptom.
Respondent has provided no explanation to support his implicit contention that this
isolated report is illuminating as to the nature of petitioner’s injury given her overall
treatment history.
V. Conclusion
In light of all of the above, respondent’s argument against petitioner’s Table claim
of SIRVA is unpersuasive. Moreover, upon consideration of the record as a whole, I
conclude that petitioner has preponderantly established that her injury meets all of the
QAI requirements for a Table SIRVA and that the onset of her injury occurred within the
requisite period required by the Vaccine Injury Table. Respondent has not
demonstrated that her condition is due to any factor unrelated to vaccination.
Accordingly, petitioner is entitled to compensation for a Table SIRVA.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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