In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1107V
UNPUBLISHED
SANDRA BOYD, Chief Special Master Corcoran
Petitioner,
v. Filed: August 12, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Site
HUMAN SERVICES, of Administration; Onset; Entitlement;
Ruling on the Record; Decision
Respondent. Without a Hearing; Influenza (Flu);
Shoulder Injury Related to Vaccine
Administration (SIRVA); Damages;
Pain and Suffering.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION ON DAMAGES1
On July 30, 2019, Sandra Boyd 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 right shoulder injury related to vaccine
administration (“SIRVA”) causally related to her receipt of an influenza (“flu”) vaccine on
October 24, 2018. See Petition at Preamble; ¶¶ 3, 12. The case was assigned to the
Special Processing Unit (“SPU”) of the Office of Special Masters.
1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am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 opinion 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.
2National 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).
For the reasons set forth below, I find that Petitioner is entitled to compensation,
and I award $81,064.82 in total damages.
I. Relevant Procedural History
After initiating her claim, Petitioner filed supporting medical records and a
Statement of Completion. During the September 11, 2019, initial status conference, it was
noted that neither Respondent nor his client had yet reviewed the claim. ECF No. 11.
Shortly thereafter, Petitioner filed her primary care provider’s telephone log records as
her Exhibit 9. On November 12, 2019, Respondent’s counsel completed an initial review
and requested additional evidence which Petitioner filed as Exhibits 10-12 on February
11, 2020.3
In light of Respondent’s delay to complete a formal review of the case, I directed
Respondent to file a more detailed assessment of the claim. On September 24, 2020,
Respondent did so, but raised only that the vaccine administration record “does not
clearly identify the site of administration, as it contains a superimposed L and R.” ECF
No. 22 (citing Ex. 1 at 1; Ex. 12 at 2). On October 7, 2020, I provided my tentative view
that the vaccination was administered in Petitioner’s right arm, and I directed Petitioner
to convey a demand, ECF No. 23, which she did on November 11, 2020, ECF No. 24.
On December 9, 2020, Respondent completed his formal review and opposed both
compensation and any discussion of settlement. ECF No. 27. Respondent formally
disputed that the vaccination was administered in Petitioner’s right arm. Id. (citing also
Ex. 12 at 2). On January 19, 2021, I directed the parties to file any briefing and additional
evidence necessary for my issuance of a fact ruling resolving the site of vaccine
administration. ECF No. 28. On February 18, 2021, Petitioner instead filed a combined
brief in support of entitlement and damages, specifically requesting $95,000.00 for past
pain and suffering and $1,064.82 for unreimbursed medical expenses. Mot. (ECF No. 29).
On May 4, 2021, Respondent filed his report pursuant to Vaccine Rule 4(c) plus a
responsive brief, arguing that neither vaccine administration situs nor onset within 48
hours could be established. Rule 4(c) Report (ECF No. 31); Opposition Brief (ECF No.
32). Respondent further averred that in the event that Petitioner was found entitled to
compensation, the record supported only $65,000.00 for past pain and suffering and
3Petitioner also filed updated primary care records as her Exhibit 13 on November 25, 2020, and updated
orthopedic records as Exhibit 14 on March 11, 2021.
2
$1,039.82 for past expenses, ECF No. 32 at 4-11. On May 14, 2021, Petitioner filed her
reply. Pet. Reply (ECF No. 33). This matter is now ripe for adjudication.4
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding 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). Contemporaneous medical records are presumed to
be accurate. See 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)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,5 a petitioner must
establish that 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 she received.
Section 11(c)(1)(C).
4Petitioner initially requested oral argument at the earliest possible Motions Day, but upon review of
Respondent’s response, she acquiesced to resolution on the papers if that would be more expeditious.
5In summary, a petitioner must establish that she 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 her injury for more than six months, died from her injury, or
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 § 11(c)(1)(A)(B)(D)(E).
3
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)(XII)(A). 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).
42 C.F.R. § 100.3(c)(10).
B. Relevant Factual Evidence
At the relevant time, Petitioner was nearly 62 years old, and had no history of
recent shoulder pain. Ex. 3 at 29-41. She did have diabetes mellitus treated with
Metformin. Id. at 29-30. She was working as an instructional assistant for students with
4
autism for the Ojai Unified School District in California. Ex. 6 at 7. She earned additional
income by typing medical charts for a local doctor. Ex. 2 at ¶¶ 32-33.
On October 24, 2018, Petitioner received the flu vaccine at issue at a Costco
pharmacy after-hours clinic offered through her school district. Ex. 2 at ¶ 4. Petitioner has
filed three copies of the same vaccination consent/ administration record. See Ex. 1 at 1;
Ex. 10; Ex. 12. The most legible (and likely the most complete) is the white administrative
copy, which includes both handwritten information and a preprinted sticker:
Ex. 12. As captured above, in the “site of injection” field, the letters R and L seem to be
superimposed. Id. The preprinted sticker, however, states “left arm.” Id.
On October 29, 2018, Petitioner presented to her primary care practice for an eight
to ten-day history of urinary urgency, frequency, and left lower quadrant pain. Ex. 3 at 25.
A doctor assessed a urinary tract infection and prescribed amoxicillin. Id. at 28. The record
listed the recent flu vaccine in the immunization history section, but no complaints or
findings pertaining to the left shoulder. The musculoskeletal exam states only: “Normal
gait.” Id.
On November 4, 2018, Petitioner was cleaning her attic when a foreign body got
into her left eye. Ex. 3 at 21. After repeated irrigation, her eye still felt irritated. Id. She
presented that same day to her primary care practice, where a different doctor assessed
corneal abrasion, which was treated with erythromycin ointment and an eye patch. Id. at
23. This record does not mention the left shoulder.
Nineteen (19) days post-vaccination, on November 12, 2018, Petitioner
telephoned her primary care practice to report “receiving a flu shot at work on 10/24/18
and her arm was immediately sore and bruised, loss of force of her arm…” Ex. 9 at 2. A
5
third doctor advised that neither ice nor heat would help; Petitioner should “mov[e] her
arm around” and resume normal activity to “circulat[e] the blood.” Id.
Thirty-six (36) days post-vaccination, on November 29, 2018, Petitioner returned
to the primary care practice. Ex. 3 at 16-20. A nurse practitioner recorded Petitioner’s
history that since “receiving a flu shot on 10/24/18,” Petitioner had been experiencing
“very painful,” “moderate to severe” pain in the right deltoid area and upper arm, as well
as limited range of motion. Id. at 16. The nurse practitioner documented tenderness at
the right shoulder bicipital groove, deltoid, and scapula. Id. at 19. Forward flexion,
extension, internal rotation, and abduction were all painful. Id. Flexion, internal rotation,
and abduction were also weak. Id. Only abduction was restricted. Id. The nurse
practitioner assessed “possible vaccine inducted bursitis?” Id. She prescribed Voltaren
gel, Id. at 19-20, then ordered an x-ray and ultrasound which were both unremarkable,
see Ex. 4 at 3-5.
The nurse practitioner then ordered a December 26, 2018, MRI of Petitioner’s right
shoulder, which revealed a moderate grade articular sided partial-thickness tear of the
supraspinatus, mild glenohumeral and acromioclavicular joint osteoarthritis, mild bicep
tendinosis, and trace subacromial/subdeltoid bursal fluid. Ex. 4 at 6-7. On February 1,
2019, the same nurse practitioner recorded that Petitioner’s right shoulder pain had
“never resolved” and she had similar limitations. Ex. 3 at 6. The nurse practitioner referred
her to an orthopedic surgeon. Ex. 3 at 6-10.
At the February 5, 2019, initial consult with the orthopedic surgeon, Dr. Stephan
Sweet, Petitioner reported a chief complaint of right shoulder pain “after a flu shot” that
was “present for 3 months, 1 week, and 5 days.” Ex. 5 at 3. Petitioner reported that the
pain occurred intermittently, specifically with activity and at night, but was rated at “10 out
of 10” and interfered with activities of daily living (“ADLs”). Id. Active range of motion was
recorded at 150° on forward flexion and abduction, 60° external rotation, and internal
rotation to T8-T10. Id. at 4. There was no tenderness to palpation of her AC joint, bicipital
groove, clavicle, or humerus. Id. Her right shoulder strength was 5-/5, and she had
positive Hawkin’s impingement, O’Brien’s and Neer’s tests. Id. Dr. Sweet assessed
petitioner with a partial right rotator cuff tear. Id. at 5. He reviewed the options for
treatment including pain medication, physical therapy (“PT”), and surgery. Id. at 5. Dr.
Sweet also suggested steroid injections, but disclosed the risks including a “transient” rise
in blood glucose. Id. Petitioner declined a steroid injection because she had diabetes
mellitus and did not know the result of her last A1C reading. Id. at 6. She chose
conservative management, acetaminophen for pain, and referral to PT. Id. at 5-6.
6
Upon starting PT on February 25, 2019, Petitioner reported that she had a right-
sided “SIRVA injury” following the October 24, 2018, flu vaccine. Ex. 6 at 8. Attorney
David Carney would be involved in her case “soon.” Id. at 7. Petitioner further reported:
“[T]here was a lot of bleeding from the injection and almost immediately she had bruising
and after taking a brief nap, she woke up and had severe pain and immobility of her
shoulder. She gave it a few weeks, thinking it would go away at some point, but around
3 weeks later she called her primary physician” (as summarized above). Id. at 15. As of
February 2019, Petitioner was wearing a sling when she felt like her arm needed support,
was icing sporadically, and applying heat “if it’s really achy” in addition to ibuprofen to
keep the inflammation and symptoms under control.” Id. at 15. The therapist observed
that Petitioner had “significant restriction of R shoulder mobility, strength, and function…
although it is her non-dominant arm, she requires use of the RUE [right upper extremity]
throughout the day which has continued to aggravate her symptoms and delay her
improvement.” Id. at 14. She would attend PT approximately twice a week for eight weeks.
Id.
Over the PT course, Petitioner reported some gains such as being able to wash
her hair without much pain, Ex. 6 at 30; Ex. 8 at 15; and doing a lot of cooking over one
weekend, Ex. 8 at 17.
By the nineteenth (19th) and last PT session on May 2, 2019, Petitioner had “made
slight progress with overall [range of motion], gaining nearly 30 degrees of flexion and 15
degrees of external rotation at 90 degrees of abduction in addition to full extension [range
of motion].” Ex. 8 at 26. However, she “continued to have significant limitations in overall
mobility” including on abduction, external and internal rotation, and flexion. She was
“highly guarded with any [passive range of motion and manual techniques, making it
difficult to progress mobility.” Id. She had achieved only 20 – 40% of her functional goals
(which concerned range of motion, strength, sleep, self-care, and work-related tasks). Id.
The therapist recommended a repeat MRI to assess whether the rotator cuff tear had
healed. Id.
At a May 6, 2019, follow-up, Dr. Sweet recorded that Petitioner rated her current
pain at 10/10 and that she was “not responding well with physical therapy.” Ex. 7 at 2. Dr.
Sweet reviewed the treatment options again with Petitioner, who opted again for
conservative management and acetaminophen for pain. Id. at 4. She again declined a
steroid injection, citing her diabetes mellitus. Id. On May 29, 2019, Petitioner’s A1c level
was found to be 7.2% but she still declined a steroid injection. Id. at 6. At further
appointments in November 2019 and early 2020, Petitioner had continued shoulder pain
and limitations. She was doing home exercises but believed that resuming formal PT
would be helpful. She had an upcoming appointment with her endocrinologist to optimize
7
management of her diabetes. Ex. 13 at 9-25. In September 2020, Petitioner reported
changes in her Metformin dosage since the COVID-19 pandemic had interrupted her
ability to exercise. Ex. 13 at 8. She was getting another A1C reading in 4-6 weeks. Id.
At the last encounter with Dr. Sweet filed into the record, on March 1, 2021,
Petitioner reported continued pain with abduction and with overhead activities, which
increased at night. Ex. 14 at 4. Dr. Sweet observed limited range of motion and a positive
impingement sign. Id. at 5. Petitioner reported that her diabetes was less controlled, with
an increased A1C of 8.5%; she would consider steroid injections and surgery when her
A1C improved (under 7%). Id. at 7. Dr. Sweet advised regarding Petitioner’s continued
use of acetaminophen for pain and he prescribed a return to PT for 2 – 3 sessions a week
for 12 weeks. Id. No further records have been filed.
Petitioner filed one affidavit, dated July 12, 2019, in which she recalls the
vaccination as well as the onset, progression, and impact of her shoulder injury. Ex. 2.
C. Factual Findings Regarding QAI Criteria for Table SIRVA
After a review of the entire record, I find that Petitioner has established, by a
preponderance of the evidence, the QAI requirements for a Table SIRVA. I will address
only the requirements disputed by the parties (and find petitioner has met the others even
if not disputed).
1. Site of Vaccine Administration and Site of Pain
Respondent conceded that the medical records establish that Petitioner
experienced pain and reduced range of motion limited to her right shoulder. Rule 4(c)
Report at 9. However, Respondent contended that there was not preponderant evidence
that she received the October 24, 2018, flu vaccine in her injured right arm. Id.; Opp. at
2. Respondent emphasized that the vaccine administration record’s handwritten
superimposed “R” and “L” with regard to site. Opp. at 2 (citing Ex. 1 at 1; Ex. 12).
Respondent correctly observes that neither letter is more clearly depicted than the other.
Respondent also emphasized the fact that the administrative copy of the vaccine
administration record’s printed sticker reads: “Left arm,” and that this record should be
deemed accurate, especially since it can be plainly read. Opp. at 3 (citing Ex. 12 at 1).
Petitioner, however, argued that the Costco pharmacy’s process for completing
vaccine administration records is unknown, and that the sticker record may have been
automatically generated, without specific input recording the actual site of administration.
8
Mot. at 14. She thus urged that I give more weight to her own recitation of situs than these
records.
Based on the evidence before me, both parties’ positions on this point approach
speculation. However, I continue to find probative that in all subsequent records, starting
less than three weeks later, Petitioner consistently reported that she received the
vaccination in her right shoulder. The records also consistently document her significant
pain and functional limitations in the right shoulder. See, e.g., Ex. 3 at 6, 16; Ex. 5 at 3;
Ex. 6 at 2, 15. Additionally, the physical therapy records provide that Petitioner is left-
hand dominant, see Ex. 6 at 14. Based on my experience adjudicating many past SIRVA
claims, it is reasonable to conclude that a vaccine will be generally administered in an
individual’s non-dominant arm. Based on all of the above, I find that it is more likely than
not that Petitioner received the vaccination in her affected right arm.
2. Onset of Pain
A petitioner claiming SIRVA must also show that he or she experienced the first
symptom or onset within 48 hours of vaccination (42 C.F.R. § 100.3(a)( XII)(A)), and that
his or her pain began within that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI
criteria)).
Here, Respondent contended that there is not preponderant evidence of an
appropriate onset because the records from the first two primary care encounters, within
the first two weeks following vaccination, do not contain any reference to her shoulder.
Rule 4(c) Report at 8-9 and Opp. at 3-4 (citing Ex. 3 at 21-27). I recognize that Petitioner
did not address these encounters in her affidavit or briefing.
Respondent also maintains that Petitioner’s telephone call to the primary care
practice nineteen (19) days post-vaccination represented only her own claims,
“unsubstantiated by medical records or medical opinion.” Opp. at 9 (citing Ex. 9 at 2). To
the contrary, Petitioner reported symptoms and asked about an in-person appointment,
then a doctor provided an initial assessment, conservative treatment plan and an
instruction to call back if Petitioner still wished a formal appointment. Petitioner may have
initially acted cautiously in pursuing treatment, but her onset allegations are not
contradicted by the later medical records.
In addition, Respondent proposes that the first primary care encounter that did
address the right shoulder also included consideration of additional distinguishable health
complaints. Thus, it is reasonable to assume that if Petitioner indeed had shoulder pain
at the earlier encounters, she could have mentioned it and the providers would have
9
recorded it as well. Resp. Response at 4 (citing Ex. 3 at 16-20). This expectation for
consistent record-keeping practices is less compelling, however, given that the four
encounters were with four different individuals at the medical practice.
Based on these considerations and the subsequent medical records from several
different providers which are consistent and not contradictory, I find that there is
preponderant evidence that Petitioner’s shoulder pain began within 48 hours after the flu
vaccination on October 24, 2018.
III. Damages
A. Legal Standards for Damages Awards
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.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). 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).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). 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. I.D., 2013 WL 2448125, at *9 (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)).
10
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.6 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013).
Judge Merow maintained that do so resulted in “the forcing of all suffering awards into a
global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
I have periodically provided statistical data on pain and suffering for SIRVA claims
resolved in SPU. See, e.g., Accetta v. Sec’y of Health & Human Servs., No. 17-1731V,
2021 WL 1718202, at *2 (Fed. Cl. Spec. Mstr. March 31, 2021) (providing that as of
January 1, 2021, in 47 SPU SIRVA cases that required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering ranged from $40,000.00
to $185,000.00).
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. In assessing those factors, I have reviewed the
record as a whole, including the medical records, affidavits, and all assertions made by
the parties in written documents. I considered prior awards for pain and suffering in both
6 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
11
SPU and non-SPU SIRVA cases and rely upon my experience adjudicating these cases.
However, I ultimately base my determination on the specific circumstances of this case.
With regard to duration, I find that Petitioner developed pain in her right shoulder
within 48 hours after the October 24, 2018 vaccination, and limited range of motion within
the first month. She still had “significant limitations” upon her PT discharge over six
months into her course, in May 2019. Petitioner consistently reported ongoing pain and
functional limitations for over two years after vaccination.
With regard to severity, Petitioner first reported her shoulder injury via telephone
just nineteen (19) days after vaccination, but she also agreed to defer treatment and
waited another seventeen (17) days before raising the injury during a formal
appointment. She was discharged after nineteen (19) PT sessions in May 2019, then
managed with a home exercise program and conservative treatment for at least half a
year before her potential return to PT was delayed by the COVID-19 pandemic. Despite
repeatedly rating her pain as moderate to severe and 10/10, she managed her pain via
over-the-counter medication, ice, and reduced activity. She did not seek other
interventions. Petitioner repeatedly cited her diabetes mellitus for declining surgery and
cortisone injections, but the record only supports that the latter is associated with a risk
of a “transient” rise in blood glucose and there was some delay in following up with her
endocrinologist to optimize management of her diabetes. Overall, these facts offset her
account that her ongoing pain was significantly severe and disruptive, see Ex. 2.7
Petitioner proposes that she should be awarded $95,000.00 because she has
established past pain and suffering similar to what was awarded in several prior cases.
Mot. at 20-22. Some are distinguishable. Young,8 for example, involved a recurrence or
exacerbation of shoulder pain approximately one year into the course after the petitioner
received a second flu vaccination.9 Similarly, in Dhanoa,10 the petitioner received two
7I also recognize that throughout the course of her injury, Petitioner continued to work as an instructional
assistant for school children with autism. However, she described – and the physical therapy records
corroborate – that she was unable to perform certain responsibilities of her job. Petitioner also recalled that
approximately two months into the course of her shoulder injury, she became the primary wage earner in
her household.
8Young v. Sec’y of Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4,
2019) (awarding $100,000.00 for past pain and suffering).
9 The Young opinion recognized that the second flu vaccination was administered intranasally but was still
followed “within days” by “a recurrence or exacerbation” of shoulder pain, loss of muscle mass, fatigue, and
weakness. 2019 WL 396981, at *2-3 and n. 5.
10 Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb.
1, 2018) ($85,000.00).
12
cortisone injections in addition to physical therapy. But I do find that Weber11 and Kent12
are helpful reference points to the extent that the petitioners therein had significant initial
pain, treatment limited to physical therapy, and some continued pain and limitations after
discharge. These damages decisions support an award slightly lower than Petitioner
requests.
Respondent counters that an award of only $65,00.00 to $70,000.00 is warranted,
because Petitioner “reported significant pain at onset but made a good recovery with
limited treatment within a year or so of onset.” Opp. at 10 (citing Dagen,13
Bartholomew,14 and Tjaden15). Petitioner correctly noted, however, that the injured
parties in those cases were doing better overall, and had little to no pain or functional
limitations one year from onset. In contrast, Petitioner herein was discharged from
physical therapy six months after vaccination with ongoing pain and limitations, which
she self-managed for another two years.
Ultimately, the parties’ arguments frame what is the most equitable pain and
suffering award under the circumstances. I thus hereby award Petitioner $80,000.00
for past pain and suffering.
C. Unreimbursed Expenses
Petitioner requested reimbursement of $1,064.82 for medical expenses. ECF No.
29 at 27-28, 31-41. Respondent agreed that most of the claimed expenses were fully
documented and related to treatment of Petitioner’s right shoulder. However, Respondent
argued that the December 29, 2018 primary care encounter concerned Petitioner’s
vertigo, rather than her shoulder injury or her recent MRI. ECF No. 31-32 (citing Ex. 3 at
11; Mot. at 28).16
11 Weber v. Sec’y of Health & Human Servs., No. 17-399V, 2019 WL 2521540 (Fed. Cl. Spec. Mstr. April
9, 2019) ($85,000.00).
12Kent v. Sec’y of Health & Human Servs., No. 17-73V, 2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7,
2019) ($80,000.00).
13Dagen v. Sec’y of Health & Human Servs., No. 18-442V, 2019 WL 7187335 Fed. Cl. Spec. Mstr. Nov. 6,
2019) ($65,000.00).
14Bartholomew v. Sec’y of Health & Human Servs., No. 18-1570V, 2020 WL 3639805 (Fed. Cl. Spec. Mstr.
June 5, 2020) ($67,000.00).
15Tjaden v. Sec’y of Health & Human Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan.
25, 2021).
16Petitioner inadvertently overlooked this point, stating that “Respondent did not specifically comment on
Petitioner’s out of pocket medical expenses in [his] Response…” ECF No. 33 at 15.
13
Upon review, it appears that Petitioner’s motion inadvertently cited to the
December 29, 2018 encounter. But the record supports the conclusion that Petitioner did
incur this sum in connection with her SIRVA, from the February 1, 2019 encounter when
a primary care provider did in fact review the results of her MRI and evaluated
authorization to see an orthopedist. Ex. 3 at 6. Therefore, Petitioner is awarded
unreimbursed medical expenses in the full requested amount of $1,064.82.
IV. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
$81,064.82 in damages (representing $80,000.00 for past pain and suffering and
$1,064.82 for past out-of-pocket expenses).
This amount represents compensation for all damages that would be available
under Section 15(a). The clerk of the court is directed to enter judgment in accordance
with this decision.17
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
17Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
14