Hunt v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1003V
UNPUBLISHED

JENNIFER HUNT, Chief Special Master Corcoran

Petitioner, Filed: June 16, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Onset; Influenza (Flu) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.

Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1

On July 15, 2019, Jennifer Hunt 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”) caused by an influenza (“flu”) vaccine administered on
September 28, 2018. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.

1
Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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 fact ruling 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 (2012).
 For the reasons described below I find that Petitioner is entitled to compensation,
and I award $95,000.00 in damages, representing compensation for actual pain and
suffering, and $7,193.44 representing out-of-pocket unreimbursed expenses.

I. Relevant Procedural History

After the initial status conference on September 18, 20219, Petitioner filed
additional medical records and a statement of completion on October 17, 2019. ECF Nos.
11, 12. On May 18, 2020, Respondent filed a status report stating that a preliminary
review of the case did not identify any missing records. ECF No. 17. Respondent also
noted that certain fact issues may require additional development, including a delay in
seeking treatment and questions regarding the onset of Petitioner’s injury. By November
18, 2020, however, Respondent indicated a willingness to enter into settlement
negotiations (ECF No. 27) – although the parties later informed me in May 2021 that those
discussions were unsuccessful. ECF No. 34.

Petitioner accordingly filed a motion for a ruling on the record regarding entitlement
and damages on June 28, 2021. Petitioner’s Motion for a Ruling on Entitlement and a
Determination of Damages (“Mot.”), ECF No. 37. Petitioner argues therein that she meets
the table definition of a SIRVA, and requests an award of $160,000.00 for actual pain and
suffering, plus $7,193.44 for unreimbursed out-of-pocket expenses. Mot. at 15-16.

Respondent opposed the motion on September 21, 2021. Respondent’s
Response to Petitioner’s Motion for Ruling on the Record (“Opp.”), ECF No. 41.
Respondent argues that Petitioner failed to establish a Table claim, because there was
no reference to an adverse reaction on the date of Petitioner’s vaccination, and because
she did not complain of shoulder pain during a visit with her primary care provider six
days later. Opp. at 7. Respondent proposed an award of $90,000.00 for pain and suffering
if entitlement was found in favor of Petitioner. Opp. at 12. 3

Petitioner filed a reply on October 12, 2021, addressing Respondent’s arguments.
Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for a Ruling on
Entitlement and a Determination of Damages (“Reply”), ECF No. 42.

Neither party addressed Petitioner’s claim for out-of-pocket expenses, and
Petitioner was ordered to file support for this amount by May 13, 2022. ECF No. 43.
Petitioner filed Exhibit 18, Petitioner’s Unreimbursable Expenses, on May 13, 2022. ECF
No. 44. This matter is now ripe for resolution.

3
Respondent does not address Petitioner’s out-of-pocket expenses.

2
 II. Petitioner’s Medical Records

Petitioner received the flu vaccine on September 28, 2018, in her left shoulder at
Davis Medical Group Family Medicine. Ex. 1. On October 4, 2018, Petitioner followed up
with Michael Salter, M.D., to discuss lab results. Ex. 2 at 9-13. There is no reference to
shoulder pain complaints set forth in that record.

Petitioner returned to Davis Medical Group two weeks later, on October 16, 2018,
with complaints that she was “still having arm soreness (Lt. arm) from flu vaccine received
on 9/28/18.” Ex. 2 at 7 (emphasis added). An examination noted that Petitioner had
tenderness, limited range of motion, and pain in her left shoulder. Id. at 8. She also
reported that she had a flu shot in her left shoulder three weeks earlier and “[i]nitially had
pain in shoulder from injection, now pain on movement as well as weakness in shoulder.”
Id. She was diagnosed with inflammation of the rotator cuff tendon and prescribed a
Medrol Dosepak.

October 25, 2018, Petitioner returned to Dr. Salter for “worsening left arm pain.”
Ex. 2 at 5. An examination indicated Petitioner had reduced strength, tenderness, limited
range of motion, and pain in her left shoulder. Id. at 6. A CT scan was performed on
November 14, 2018, that showed “[s]mall erosion at the distal clavicle at the
acromioclavicular joint.” Ex. 4 at 6.

On November 27, 2018, Petitioner was seen by Dr. Dale Rader, an orthopedic
surgeon, due to continued left shoulder pain. Ex. 5 at 11. Petitioner reported trouble with
her left shoulder and limited range of motion since receiving a flu vaccine two months
earlier, and that she “noticed a difference immediately after getting her flu shot.” Id. The
record also notes that Petitioner’s left shoulder pain and stiffness “began after she
received a flu shot 2 months ago.” Id. at 12. Petitioner was diagnosed with impingement
syndrome and received a corticosteroid injection. Id. at 13.

Petitioner had an initial physical therapy evaluation on December 6, 2018. She
reported that she had a flu shot in September of 2018, and “had pain increase from this
and the pain has not gone away.” Ex. 4 at 23. An examination indicated she had reduced
strength. Id. at 23, 15-17; 16. Petitioner reported pain was “8+ prior to the cortisone
injection last week” but at that time was 2-3 at worst. Id. at 24. The physical therapy noted
that Petitioner’s symptoms were consistent with subdeltoid bursitis. Id. at 35.

Petitioner attended ten physical therapy sessions between December 6, 2018, and
January 24, 2019. Ex. 4 at 27. She continued to report varied pain levels throughout this
period from between 5-6 and 0 out of 10. See id. at 41 (physical therapy record from

3
December 27, 2018, reporting pain as 5-6 out of 10); id. at 30 (physical therapy record
from January 16, 2019, reporting pain as 0 out of 10). On January 24, 2019, her pain was
reported as 3 out of 10 after her last session. Id. at 27.

Petitioner saw Dr. Rader again on January 8, 2019. Ex. 5 at 8-10. At that time, she
continued to show limited range of motion and tenderness in her left shoulder, but stated
she noticed significant improvement after the earlier steroid injection and physical
therapy. Id. at 10. At a follow-up appointment on February 5, 2019, with Dr. Rader
Petitioner continued to complain of shoulder pain and received a second cortisone
injection. Id. at 7. Another follow-up with Dr. Rader occurred on March 1, 2019. Petitioner
reported that she had relief from the steroid injection and the pain “has not returned.” Id.
at 4. However, she still had pain with range of motion and lifting. Id.

On April 16, 2018, Petitioner again reported continued pain despite conservative
measures, and decided to proceed with surgical intervention. Ex. 6 at 9. Petitioner
underwent left shoulder arthroscopy surgery on May 16, 2019, that involved limited
debridement, subacromial decompression, partial acromioplasty, and coracoacromial
release of the left side. Id. at 11.

On June 18, 2019, Petitioner began a second physical therapy course. Ex. 6 at 3.
At that time, she noted that she was improving, and rated her pain as 1 or 2 out of 10. Ex.
Id. Petitioner exhibited full range of motion with soreness. She also showed full strength
with some mild discomfort at the end range of impingement and crossover. Id.

Petitioner attended nine physical therapy sessions between June 6, 2019, and July
30, 2019. Ex. 8 at 1-25. During that period, she reported pain levels at 0-3 out of 10. Id.
at 18 (physical therapy record from June 13, 2019, reporting pain as 3 out of 10); id. at
12 (physical therapy record from June 27, 2019, reporting pain as 0 out of 10). Petitioner
was discharged from physical therapy on July 30, 2019. Id. at 2. At that time, she reported
range of motion was functional and strength improved, however her shoulder was still
sore “when she first wakes up in the morning.” Id. at 2.

On September 9, 2019, Petitioner saw Dr. Rader for a four-month post-op follow-
up. Ex. 10 at 1-3. Petitioner reported she still experienced constant pain, rated as 5 out
of 10. Id. at 2. She showed full range of motion received another cortisone injection. Id.
at 3. Petitioner again complained of shoulder pain to Dr. Rader on October 21, 2019,
although she stated the steroid injection on her last visit “really helped with her pain.” Ex.
12 at 2.

4
 Petitioner saw Dr. Scott Brandon on November 6, 2019, for a second opinion
regarding her shoulder. Ex. 13 at 3. Petitioner continued to complain of shoulder pain,
and Dr. Brandon diagnosed her with left shoulder adhesive capsulitis after an arthroscopic
debridement. Id. at 4. He recommended an MRI, which was performed on November 18,
2019. The MRI showed signs of adhesive capsulitis and potentially a labrum tear, along
with trace subacromial subdeltoid bursitis. Ex. 14 at 1-2.

Petitioner saw Dr. Brandon again on November 27, 2019, with complaints of
shoulder pain that was “fairly significant” and woke her at night. Ex. 13 at 2. An exam
showed full range of motion to about 130 degrees. She was diagnosed with adhesive
capsulitis and received a steroid injection. Id. On December 18, 2019, Petitioner reported
a 50% improvement and was told to return as needed for any symptoms. Id. at 1.

Petitioner continued to complain of shoulder discomfort on March 15, 2021,
however the “excruciating pain that she had and profound stiffness has abated”. Ex. 17
at 1. She received another steroid injection at that time. Id.

Petitioner last saw Dr. Brandon on April 7, 2021. Ex. 17 at 2. At that time, she
reported she “still has a little bit of a catch and pain, but she is happy with her clinical
progress.” Upon examination, she showed full strength but some pain with internal
rotation.

III. Affidavit Evidence

Petitioner submitted an affidavit in support of her claim on July 26, 2019. Ex. 7.
Petitioner stated that she received a flu shot in Dr. Michael Salter’s office on September
28, 2018, and that the injection itself was painful. Ex. 7 at 1. She also described her course
of treatment, and how her injury impacted her life, and the emotional and financial toll she
has had to endure. Ex. 7 at 1-2.

Petitioner submitted a second affidavit on May 28, 2020. Ex. 15. In it, she states
that the vaccination on September 28, 2018, in Dr. Michael Salter’s office. Petitioner also
stated that the shot hurt immediately. Id. at 1. She further states that she returned to her
doctor’s office on October 4, 2018, to review bloodwork results, but that she also
mentioned her shoulder was sore from the flu vaccination. Id. Petitioner stated that Dr.
Salter told her the pain should resolve on its own.

5
 IV. Parties’ Arguments

Petitioner requests that I issue a ruling finding that she is entitled to compensation
in this case. Mot. at 15-16. She avers that she meets the requirements for a SIRVA as
described in the Vaccine Injury Table, and thus is entitled to compensation. Mot. at 7-11.
Respondent argues that Petitioner has failed to show she suffered a Table claim because
onset of her injury was not within 48 hours of her vaccination. Opp. at 6-7.

V. Fact Findings and Ruling on Entitlement

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement, 4 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).

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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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

4
In 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).

6
 (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 must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “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 & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).

Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.

Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

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.

7
 The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (holding that it is within the special master’s discretion to determine whether to
afford greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational).

A. Factual Findings Regarding a Table SIRVA

After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.

1. Petitioner Had no Prior Left Shoulder Condition or Injury

The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and I find that she has demonstrated a lack of history of pain,
inflammation, or dysfunction of her left shoulder that would explain her symptoms. See
Ex. 5 at 11 (stating that Petitioner was “fine” before her flu shot).

2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of
her Vaccination

The aforementioned medical records, coupled with Petitioner’s witness
statements, establish that Petitioner consistently reported to treaters onset close-in-time
to vaccination, that she sought treatment within approximately two weeks of her
September 2018 vaccination, and that she indeed was experiencing symptoms in the
relevant timeframe. Ex. 2 at 7; Ex. 5 at 11-12; Ex. 4 at 23.

Respondent argues that contemporaneous medical records from six days after the
vaccination fail to report any shoulder pain or problems. Opp. at 11-12. In support
Respondent cites to an October 4, 2018, record wherein Petitioner met with Dr. Salter to
discuss bloodwork and lab results. Opp. at 12 citing Ex. 2 at 13. But while Respondent is
correct that this single record is silent on Table onset, the totality of the evidence is not.
First, the records show that Petitioner sought treatment in a relatively timely manner (i.e.
less than a month after vaccination). It is common for a SIRVA petitioner to delay seeking

8
treatment, thinking the injury will resolve on its own, since patients are often told by
medical providers at the time of vaccination to expect some soreness and pain for a period
of time after. Here, however, the delay was not appreciably long – and the fact that
treatment was sought in a relatively short timeframe is supportive of a close-in-time onset.

Second, Petitioner affirmatively and repeatedly linked her shoulder pain to the flu
vaccine as early as October 16, 2018, noting that she was still having arm soreness “from
flu vaccine received on 9/28/18.” Ex. 2 at 7. This reporting provides additional support for
onset. Other subsequent medical records also corroborate the contention that Petitioner’s
pain began within 48 hours of vaccination. See e.g., Ex. 5 at 11 (stating “her shoulder
pain and stiffness “began after she received a flu shot 2 months ago”).

Third, it is reasonable that Petitioner either failed to mention her shoulder pain or,
as she states in her affidavit, that she mentioned the pain, but Dr. Salter did not record it
at the October 4, 2018, appointment. The appointment was to discuss bloodwork and lab
results - another problem that was not the focus or purpose of the meeting may have not
occurred or gone unrecorded. And given that SIRVA patients often misapprehend the
non-transient nature of their pain, it is reasonable to conclude (especially in light of the
subsequent, close-in-time records) that Petitioner may not have yet realized the extent of
the problem.

Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s left shoulder pain was more likely than not immediate,
and thus within 48-hours of vaccination.

3. Petitioner’s Pain was Limited to her Left Shoulder

I also find that there is a preponderance of evidence that Petitioner’s pain was
limited to her left shoulder. Respondent does not contest this aspect of Petitioner’s claim,
and the records consistently report shoulder pain and loss of range of motion in her left
shoulder, which is consistent with other SIRVA cases. Petitioner’s medical procedures
were also limited to her left shoulder. Accordingly, preponderant evidence establishes
that Petitioner’s pain was limited to her left shoulder.

4. There is No Evidence of Another Condition or Abnormality

The last criteria for a Table SIRVA state that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent has not contested that Petitioner meets this criterion, and I
find there is no evidence in the record to the contrary. Thus, the record contains

9
preponderant evidence establishing that there is no other condition or abnormality which
would explain the symptoms of Petitioner’s left shoulder injury.

B. Other Requirements for Entitlement

In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.

The record shows that Petitioner received a flu vaccine intramuscularly in her left
shoulder on September 28, 2018, in the United States. Ex. 1; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for her injury. Ex. 7 at 2; Section 11(c)(1)(E) (lack of prior civil
award).

As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA.

The last criteria which must be satisfied by Petitioner involves the duration of her
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his or her left shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement). The
records demonstrate, and Respondent does not contest, that Petitioner suffered the
residual effects of her shoulder injury for more than six months and underwent surgical
intervention. See, e.g., Ex. 17 at 1 (records showing continued sequala as of March 15,
2021); Ex. 6 at 11 (records of Petitioner’s arthroscopic surgery). Thus, this requirement is
also met.

Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.

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 VI. Damages

The parties have also briefed damages in this case, which is limited to pain and
suffering. Petitioner requests an award of $160,000.00 for actual pain and suffering and
$7,193.44 for unreimbursed out-of-pocket expenses. Mot. at 16. Respondent argues that
the record only supports an award of $90,000.00 for past pain and suffering. Opp. at 12.

A. Legal Standards for Damages Awards

In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).

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.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. 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. 5

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 determining appropriate compensation for pain
and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.

5
I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. 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)).

11
 Citing the prior damages decision in Reed v. Sec'y of Health & Hum. Servs, No.
16-1670, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00
for actual pain and suffering), Ms. Hunt requests an award of $160,000.00 for actual pain
and suffering. Mot. at 14-15. She asserts that the severity of her injury is comparable to
Reed. In particular, Petitioner emphasizes that she suffered through the worst part of her
SIRVA for seven and a half months prior to undergoing surgery, required physical therapy
to supplement the surgery and dimmish residual pain, and ultimately still experiences pain
even after her surgery. Mot. at 15. Further, just as in Reed, Petitioner’s pain has affected
her daily life. Mot. at 13-14. Petitioner also notes that this Court has awarded between
$120,000.00 and $130,000.00 for past pain and suffering in SIRVA cases involving
surgery. See Reply at 14-15 n.2. 6

Respondent, by contrast, submits that an award of $90,000.00 is appropriate for
pain and suffering (assuming entitlement is found). Opp. at 10. Respondent argues that
Petitioner underwent a moderate amount of treatment consisting of eighteen physical
therapy sessions, four steroid injections, and arthroscopic surgery, which was ultimately
successful. Opp. at 8-9. Respondent cites to Shelton v. Sec’y of Health & Hum. Servs.,
No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021) (awarding
$97,500.00 for past pain and suffering) in support of her argument.

Respondent also discussed the large number of proffered awards in SPU cases,
awards for shoulder injuries in the traditional tort system which appear to be substantially
lower, and a “meeting-in-the-middle” method that Respondent believes is being utilized
by the special masters when determining the appropriate amount of damages to be
awarded. Id. at 9-11 n.1; Appendix A (list of traditional tort system cases). I have
addressed and rejected these arguments in previous decisions. See, e.g., Randazzo v.
Sec'y of Health & Hum. Servs., No. 18-1513V, 2021 WL 829572, at *4 (Fed. Cl. Feb. 1,
2021) (noting that I have rejected the “meeting-in-the-middle” method, Respondent’s
argument that amounts awarded in proffered cases are a more accurate gauge of the
appropriate amount to be awarded, and why I do not give great weight to Respondent’s
citation to pain and suffering from traditional tort system state court cases).

Based on the medical records, Petitioner suffered a mild-to-moderate SIRVA for
approximately fifteen months, with periods of little-to-no pain. Petitioner initially reported
arm pain and reduced range of motion on October 16, 2018, approximately three weeks

6
Citing Rafferty v. Sec'y of Health & Hum. Servs., No. 17-1906V, 2020 WL 3495956, at (Fed. Cl. Spec.
Mstr. May 21, 2020) (awarding $127,500.00 for pain and suffering); Nute v. Sec’y of Health & Human Servs.,
No. 18-0140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for pain and
suffering); Kelley v. Sec’y of Health & Human Servs., No. 17-2054V, 2019 WL 5555648 (Fed. Cl. Spec.
Mstr. Aug. 2, 2019) (awarding $120,000.00 for pain and suffering).

12
after her vaccination. Ex. 2 at 7. Her pain increased through for approximately six weeks
and was reportedly “8+” until her first cortisone injection on November 27, 2018. Ex. 4 at
24.

The cortisone injection provided significant relief, after which her pain was often
reported as mild (2-4 out of 10) over the next eight weeks during ten physical therapy
sessions. See Ex. 4 at 27 (January 24, 2019, record reporting pain as 3 out of 10); id. at
41 (December 20, 2018, physical therapy record reporting pain at 1-3 out of 10). However,
Petitioner continued to experience shoulder pain and had a second cortisone injection on
February 5, 2019. Ex. 5 at 7. This proved to be effective in reducing her pain, and she did
not report any additional pain until at least March 1, 2019, approximately ten weeks later.
Ex. 5 at 4.

Petitioner ultimately opted to undergo surgery on April 16, 2018. Ex. 6 at 11. The
surgery appeared successful, and her pain was minimal throughout the second course of
physical therapy. See Ex. 6 at 3 (physical therapy record from June 18, 2019, reporting
pain as 1 or 2 out of 10); Ex. 8 at 8 (physical therapy record from July 16, 2019, rating her
pain as 1/10). However, Petitioner continued to suffer lingering pain through 2019. See,
e.g., Ex. 10 at 2-3 (record from September 9, 2019, reporting constant pain at 5/10 levels);
Ex. 12 at 1 (record from October 21, 2019, reporting continued pain); Ex. 13 at 2 (record
from November 27, 2019, noting shoulder pain that woke her at night). Petitioner’s pain
resulted in numerous cortisone injections, which provided some relief. Ex. 13 at 1 (noting
Petitioner reported a 50% improvement since her last steroid injection).

I give less weight to reports of Petitioner’s discomfort in March of 2021, over one
year later. Ex. 17 at 1. At that time, she appeared to be almost completely recovered,
however she still reported a slight catch and pain at times and received another cortisone
injection. Id. The gap in treatment indicates that her pain was mild at worst. Further, it
supports the finding that, as of November 2019 Petitioner had largely returned to her
baseline condition.

These factors indicate that Petitioner’s SIRVA was mild to moderate for the initial
six weeks after her vaccination, and mild thereafter. Further, Petitioner’s treatment
occurred over approximately fifteen months and included surgery, over nineteen physical
therapy sessions, an MRI, and three steroid injections. 7

7
I understand that Petitioner again reported pain in March and April of 2021. But the fifteen-month gap in seeking
treatment is evidence that her pain was not significant during this period. Further, at that time she appeared to be
almost completely recovered, only reporting a slight catch and pain at times. Ex. 17 at 1.

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 The overall severity of the injury at issue herein is not high enough to warrant the
$160,000.00 requested by Petitioner in her motion. I note that Reed, the SIRVA decision
cited by Petitioner, is distinguishable as it involved a much higher level of pain over a
much longer period of time. The petitioner in Reed suffered pain at levels of 6-9 out of 10
while attending more than 13 physical therapy sessions for the six months prior to her
surgery and on a level of 3-6 out of 10 while attending 18 physical therapy sessions for
four months post-surgery. Reed, 2019 WL 1222925, at *3-9, 15. Four months after her
surgery, the Reed petitioner was forced to seek treatment from a pain management
specialist. Id. at *6-7. Two years after her injury, the Reed petitioner continued to take a
strong opioid medication to manage her pain. Id. at *9, 11. It is clear from the record that
the severity and duration of Petitioner’s pain and suffering was significantly less than that
suffered by the petitioner in Reed.

I agree with Respondent that this case is most analogous to Shelton, 2021 WL
2550093 (awarding $97,500.00 for pain and suffering). As here, petitioner in Shelton
received several corticosteroid injections, an MRI, numerous physical therapy sessions,
and underwent surgery. Further, just as in Shelton, Petitioner here made a good recovery
after her surgery. The cases are, however, also distinguishable – and in ways that justify
a slightly lower award. For example, the petitioner in Shelton delayed her initial treatment
for approximately five months and showed significant improvement just two months after
surgery. However, she also reported more significant pain. Id. at *7. In contrast, although
Ms. Hunt may have sought treatment more quickly, she also benefited from significant
reduction in her pain following each cortisone injection (the first of which she received in
November 2018), resulting in periods of little-to-no pain during the course of her injury.

Taking all of the above into account, I find that $95,000.00 for pain and suffering
is appropriate in this case. Although it is common in SPU in SIRVA cases featuring a
surgery to result in pain and suffering awards in excess of $100,000.00, each case must
be resolved on its own terms and based on the specific facts. Here, Petitioner does
deserve a pain and suffering award close to, but not in excess of, that figure.

C. Unreimbursed Out-Of-Pocket Expenses

Additionally, a petitioner may recover “actual unreimbursable expenses incurred
before the date of judgment awarding 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). Petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer, 1996 WL 147722, at *22-23.

14
 Petitioner seeks $7,193.44 for unreimbursed out-of-pocket expenses. Mot. at 16.
Petitioner filed Exhibit 18, which provides support for this amount, on May 13, 2022. I find
the expenses listed in Exhibit 18 provide support for the amount sought in unreimbursed
medical expenses, as they resulted from her vaccine-related injury, were incurred by her
(or on her behalf), and otherwise have been demonstrated to be necessary. Therefore, I
will include the total sum requested in the final award.

VII. Conclusion

In view of the evidence of record, I find that there is preponderant evidence
that the onset of Petitioner’s injury, specifically shoulder pain, was within 48 hours
of her vaccine. Further, based on the evidence of record, I find that Petitioner is
entitled to compensation.

I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $95,000.00 represents a fair and appropriate amount of
compensation for Ms. Hunt’s actual pain and suffering. I also grant Ms. Hunt’s
request for $7,193.44 for past unreimbursed medical expenses. 8 Petitioner shall
therefore be awarded the total sum of $102,193.44, in the form of a check payable
to Petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

8
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).

15