# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 31, 2023

* * * * * * * * * * * * *

CHERISH MOORE, * PUBLISHED

*

*

Petitioner, * No. 20

- 1589V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Tetanus

- diphtheria

- pertussis

AND HUMAN SERVICES, * (“Tdap”); Shoulder Injury Related

* to Vaccine Administration

Respondent. * (“SIRVA”); Entitlement.

* * * * * * * * * * * * *

Jessica A. Olins , Maglio Christopher & Toale Law Firm, Seattle, WA, for Petitioner.

Madelyn E. Weeks , U.S. Department of Justice, Washington, D.C., for Respondent.

RULING ON ENTITLEMENT 1

On November 13, 2020, Cherish Moore (“Petitioner”) filed a petition under the National Vaccine

Injury Compensation Program (“Vaccine Program” or “Vaccine Act”). 2 Petitioner alleged that she

received a tetanus

- diphtheria

- acellular pertussis (“Tdap”) vaccination on October 2, 2019, which was the

actual cause of he r developing a right Shoulder Injury Related to Vaccine Administration (“SIRVA”).

(ECF No. 35).

On December 8, 2022, the undersigned issued a Finding of Fact, finding that petitioner has

demonstrated that her pain and shoulder dysfunction occurred with in the requisite time period after

receiving an the Tdap vaccination on October 2, 2019. Moore v. Sec’y of Health & Human Servs., No.

20

- 1589, 2022 WL 17986133 (Fed. Cl. Spec. Mstr. Dec. 8, 2022).

On January 30, 2023, r espondent filed an amended Rule 4(c) report requesting that the Special

Master decide the issue of entitlement in the above

- captioned case. Respondent (“Resp.”) Amended

Rule 4(c) Report (“ Rept.”) (ECF No. 44).

1 Pursuant to the E

- Government Act of 2002, see 44 U.S.C. §3501 note (2012), because this ruling contains a reasoned

explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims.

The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7 . Before the ruling is posted on the court’s

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that i s a

trade secret or commercial or financial in substance and is privileged or confide ntial; or (2) that includes medical files or

similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An

objecting party must provide the court with a proposed redacted version of the decisi on.” Id. If neither party files a motion

for redaction within 14 days, the ruling will be posted on the court’s website without any changes. Id.

2 As set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Sta t. 3755, codified as

amended, 42 U.S.C. § 300aa

- 10 to 34 (2012).2

I. Legal Standard

The Vaccine Act provides two avenues for petitioners to r eceive compensation. A petitioner may

demonstrate either that she suffered a “Table” injury, 3 or that she suffered a different injury which was

caused

- in

- fact by a vaccine listed on the Vaccine Injury Table. In this case, petitioner is alleging she

suff ered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), which is a Table Injury. The

Table provides that The Vaccine Table’s Qualification and Aids to Interpretation (“QAI”) provides:

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 an tigen 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 pati ent’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) (2017).

II. Discussion and Conclusion

The undersigned resolved the factual issue of onset raised by respondent in the Finding of Fact

issue on December 8, 2022, in which the undersigned found that petitioner’s onset of pain occurred

within 48

- hours of receipt of the Tdap vaccine administered on October 2, 2019. Moore, at * 10. The

Finding of Fact includes a review of petitioner’s medical records, affidavits of petitioner, declarations of

her husband, and declaration of her coworker. Id. at * 3

- 6 . Those summaries will not be repeated here

but are incorporated herein by referen ce. Additionally, the Finding of Fact is incorporated herein by

references as if fully set forth.

3 A “Table” injury is an injury listed on the Vaccine Injury Table, 42 U.S.C. § 100.3, corresponding to the vaccine received

within the time

- frame specified.3

In respondent’s amended Rule 4(c) report, he states, “In light of the Special Master’s fact ruling,

and medical record evidence submitted in this case, DIC P has concluded that petitioner suffered SIRVA

as defined by the Vaccine Injury Table.” Resp. Rept at 7 . Further, respondent states, “petitioner had no

recent history of pain, inflammation, or dysfunction of her right shoulder; the onset of pain occurred

within 48 hours after receipt of an intramuscular vaccination; the pain was limited to the shoulder in

which the vaccine was administered; and no other condition or abnormality has been identified to

explain petitioner’s right shoulder pain. Id. at 7 (ci ting 42 C.F.R. §§ 100.3(a),(c)(10). Respondent also

acknowledges that “petitioner suffered the residual effects of her condition for more than six months.”

Id. at 8. Therefore, “based on the record as it now stands and subject to his right to appeal the Finding of

Facts, respondent does not dispute that petitioner has satisfied all legal prerequisites for compensation

under the Act.” Id. (citing § 300aa

- 13).

Based on the record as a whole, including the declarations of petitioner and other lay witnes ses, petitioner’s medical records, and respondent’s amended Rule 4(c) report, the undersigned finds that

petitioner has established a Table SIRVA injury resulting from her October 2, 2019 Tdap vaccination.

Thus, petitioner is entitled to compensation. A separate damages order will be issued.

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master