Every vaccine injury is unique. Symptoms can vary widely. What happens in a vaccine claim when symptoms include pain, but no impaired motion?
McNally v. Secretary of Health and Human Services
Case at a glance:
INJURY: bursitis of the left shoulder
SYMPTOMS: shoulder pain but no limited mobility
VACCINE: flu shot (influenza vaccination)
VACCINE ADMINISTRATOR: CVS Pharmacy
VACCINATION DATE: December 7, 2019
CASE OUTCOME: anticipated nominal damages award
CASE DURATION TO AWARD: ongoing
Injured by a flu shot? Click here to learn more.
A Shoulder Injury without Impairment.
Ms. McNally was injured upon receiving a flu shot vaccination at CVS pharmacy.
As a result of her shot, Ms. McNally reported having trouble with various activities of daily life. She had to modify workouts. She missed activities with her children. She was unable to pick up her children. And she reported experiencing depression as a result of her symptoms.
Nine days after the vaccination, Ms. McNally visited a doctor for unrelated issues. Medical records from this visit are silent about Ms. McNally's shoulder condition and also say nothing about the flu shot.
Twelve days after the flu shot, Ms. McNally visited an orthopedist and reported increasing pain and immobility in left shoulder, constant pain, throbbing, and aching since flu vaccine, worsening overtime. Increased pain with overhead use, throwing, and lifting." Nonetheless, an examination of her shoulder during that visit found range of motion within normal limits. During this appointment, she was diagnosed with inflammatory subacromial bursitis of the left shoulder.
In June 2020, during a telehealth visit, Ms. McNally still reported ROM limitation, performing home physical therapy, and experiencing pain "mostly with overhead use of her arm." She also reported experiencing fatigue after a period of left upper extremity use. Accordingly, her provider re-ordered an MRI to make further determinations.
Her subsequent MRI showed evidence of inflammatory response at the flu vaccine injection point and in her shoulder tendons. Her provider ordered a second cortisone injection, additional physical therapy, and prescribed Voltaren gel.
Pain without Mobility Impairment
In deciding Ms. McNally's claim, the judge noted conflicts in the evidence. Ms. McNally reported lack of mobility and difficulty with various activities of daily life. On the other hand, objective measurements of Ms. McNally's range of motion showed motion generally within normal limits. Additionally, many of the descriptions of impairment explicitly noted that she was using her affected arm for overhead activities.
The judge found Ms. McNally was not experiencing mobility impairment in her flu-shot injured arm. The result of this finding meant that Ms. McNally's claim was not appropriate for adjudication in the Special Processing Unit, which is the division of the court designed to fast track cases.
Despite this, the judge did suggest that Ms. McNally did have persuasive evidence, and that her case could proceed outside the Special Processing Unit. The judge added, however, that the less severe symptoms meant that she was likely to receive a nominal award of damages if she prevailed.
"Petitioner only displayed pain with shoulder movement. While pain is an independent SIRVA element easily established on this record, the ROM requirement is specific to movement limitations, as opposed to pain due to motion." – Chief Special Master Brian H. Corcoran
Takeaway: Impairment Helps, but Is Not Necessary to Recover a Vaccine Injury Case
Ms. McNally will likely recover something although her case will be slower and more difficult outside the Special Processing Unit. This underscores the flexibility of the Vaccine Act court system.
Review the full decision here: McNally v. Secretary of Health and Human Services
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