VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01462
Package ID: USCOURTS-cofc-1_16-vv-01462
Petitioner: Eliseo Rael
Filed: 2017-02-09
Decided: 2020-02-25
Vaccine: influenza
Vaccination date: 2015-12-17
Condition: left shoulder injury
Outcome: compensated
Award amount USD: 88032

AI-assisted case summary:
Eliseo Rael filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a left shoulder injury resulting from his December 17, 2015 influenza vaccination. The case was initially handled by the Special Processing Unit. In February 2017, the respondent conceded that Mr. Rael's injury was consistent with Shoulder Injury Related to Vaccine Administration (SIRVA) and was caused by the flu vaccine, and that he met all legal prerequisites for compensation. The case was later removed from the Special Processing Unit when the parties could not agree on the amount of compensation. Mr. Rael sought compensation for pain and suffering and lost earnings, while the respondent contested the lost earnings claim. After reviewing the evidence and arguments, the Special Master awarded Mr. Rael $88,032.56. This amount included $85,000 for past pain and suffering, $2,807.56 for future pain and suffering calculated at $100 per year for 36 years with a 2% discount rate, and $225 for unreimbursed medical expenses. The claim for lost earnings was denied as Mr. Rael did not persuasively establish he was likely to obtain highly competitive positions. The decision was issued on February 25, 2020.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01462-0
Date issued/filed: 2017-08-11
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/09/2017) regarding 14 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Copy to parties.
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Case 1:16-vv-01462-UNJ Document 25 Filed 08/11/17 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1462V
Filed: February 9, 2017
UNPUBLISHED
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
ELISEO RAEL, *
*
Petitioner, * Ruling on Entitlement; Concession;
v. * Influenza;
* Shoulder Injury; SIRVA;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
C. Clark Hodgson, III, Muller Brazil, LLP, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On November 4, 2016, petitioner 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 he suffered a left shoulder injury resulting from
his December 17, 2015 influenza vaccination. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On February 9, 2017, respondent filed his Rule 4(c) report in which he concedes
that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
at 1. Specifically, respondent “has concluded that petitioner’s alleged injury is
consistent with SIRVA [i.e. Shoulder Injury Related to Vaccine Administration], and that
it was caused-in-fact by the flu vaccine he received on December 17, 2015.” Id. at 4.
Respondent further agrees that no other cause for petitioner’s injury was identified, that
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:16-vv-01462-UNJ Document 25 Filed 08/11/17 Page 2 of 2
petitioner suffered sequela of the injury for more than six months, and that petitioner has
satisfied all legal prerequisites to compensation under the Vaccine Act. Id.
In view of respondent’s concession and the evidence before me, the
undersigned finds that petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_16-vv-01462-1
Date issued/filed: 2020-01-14
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/18/2019) regarding 78 Findings of Fact & Conclusions of Law. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
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Case 1:16-vv-01462-UNJ Document 80 Filed 01/14/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
ELISEO RAEL, *
* No. 16-1462V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: December 18, 2019
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
TENTATIVE RULING REGARDING DAMAGES
The parties dispute three aspects of compensation: (1) compensation for past pain and
suffering, (2) whether Mr. Rael is entitled to any compensation for future pain and suffering, and
(3) compensation for lost earnings. The parties have filed briefs addressing the evidence on
these points.
Vaccine Rule 5(a)(3) authorizes special masters to present tentative findings and
conclusions. The undersigned takes this approach here.
1. Past Pain and Suffering
After considering the materials in the record, the undersigned has tentatively found that
an appropriate amount of compensation for petitioner’s past pain and suffering is $85,000.
2. Future Pain and Suffering
On November 2, 2017, Dr. Buterbaugh stated that petitioner’s symptoms “will persist.”
Exhibit 7 at 2. Dr. Buterbaugh’s opinion supports an award of some amount of future pain and
suffering. But see Resp’t’s Br., filed Sep. 3, 2019, at 7 (stating, in part, “Dr. Buterbaugh did not
opine that petitioner’s left shoulder injury was . . . likely to extend into the future.”)
Petitioner seems not to be receiving much, if any, medical treatment for his shoulder
pain. The lack of treatment suggests that the shoulder pain is mild. Therefore, the undersigned
tentatively finds that a reasonable amount of compensation for petitioner’s continued shoulder
problem is $100 per year for the remainder of his life.
The parties have an additional opportunity to develop this aspect of compensation in two
respects. Petitioner shall file material on January 24, 2020. On that date, petitioner shall file
evidence showing petitioner’s life expectancy. In addition, petitioner shall file a statement or

Case 1:16-vv-01462-UNJ Document 80 Filed 01/14/20 Page 2 of 2
evidence regarding discount rate. The undersigned has used a two percent discount rate as a
default. If petitioner accepts a two percent discount rate, then petitioner may file a status report
communicating this acceptance. If not, petitioner shall file evidence in the form of a report from
an expert who could testify at a hearing about the discount rate.
Respondent shall file a response 30 days later. Respondent may agree with petitioner’s
evidence regarding life expectancy. If so, respondent shall file a status report. If not, respondent
shall file evidence. Likewise, respondent may agree with the discount rate as petitioner has
proposed or, if appropriate, the default rate of two percent. If respondent disagrees with the
proposed discount rate, respondent shall file evidence in the form of a report from an expert who
could testify at a hearing.
3. Lost Earnings
Petitioner has not demonstrated that he is entitled to any compensation for lost earnings.
Of the three tentative findings, this finding is the most certain.
The parties may wish to use these tentative findings plus the parties’ agreement that
petitioner incurred $225.00 for unreimbursed medical expenses to resolve the case. If the parties
cannot resolve the case, then the parties should submit material as scheduled above.
Accordingly, the following is ordered:
1. Petitioner shall file information regarding (a) life expectancy, and (b) discount rate by
Friday, January 24, 2020.
2. Respondent shall file his response on those two topics 30 days later.
Any questions regarding this order shall be directed to my law clerk, Haley Hawkins, at
(202) 357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2

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DOCUMENT 3: USCOURTS-cofc-1_16-vv-01462-2
Date issued/filed: 2020-02-25
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 01/28/2020) regarding 81 DECISION of Special Master. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
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Case 1:16-vv-01462-UNJ Document 87 Filed 02/25/20 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
ELISEO RAEL, *
* No. 16-1462V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: January 28, 2020
AND HUMAN SERVICES, *
* Damages, pain and suffering,
Respondent. * discount rate.
* * * * * * * * * * * * * * * * * * * * * * * * *
Amy A. Senerth, Muller Brazil LLP, Dresher, PA, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION AWARDING COMPENSATION1
Eliseo Rael alleged that an influenza vaccination injured his left shoulder. While this
case was in the Special Processing Unit of the Office of Special Masters, the Chief Special
Master found, based upon the Secretary’s concession, that Mr. Rael was entitled to
compensation. Ruling, issued Feb. 9, 2017. When the parties could not agree upon the amount
of compensation to which Mr. Rael was entitled, the case was removed from the Special
Processing Unit. The parties have presented evidence and argument regarding the amount of
compensation. Based upon this record, Mr. Rael is awarded $88,032.56.
* * *
When the case was transferred out of the Special Processing Unit on August 13, 2018, the
parties primarily were disputing whether Mr. Rael was entitled to any compensation for
diminished earnings concerning his career as a percussionist. A secondary issue was the amount
of compensation for Mr. Rael’s pain and suffering.
Mr. Rael filed documents about his earnings before and after the vaccination. Both
parties retained experts regarding lost earnings.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (http://www.cofc.uscourts.gov/aggregator/sources/7). This posting will make the
decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have
14 days to file a motion proposing redaction of medical information or other information
described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will
appear in the document posted on the website.

Case 1:16-vv-01462-UNJ Document 87 Filed 02/25/20 Page 2 of 3
After the parties had developed their evidence, the parties were ordered to file briefs.
Order, issued June 14, 2019. Mr. Rael filed his brief on August 27, 2019, and the Secretary
responded on September 3, 2019. Mr. Rael did not file a reply.
The undersigned issued tentative findings of fact regarding damages on December 18,
2019. The undersigned found that: (1) a reasonable amount of compensation for Mr. Rael’s past
pain and suffering is $85,000; (2) a reasonable amount of compensation for Mr. Rael’s future
pain and suffering is $100 per year for the remainder of Mr. Rael’s life; (3) Mr. Rael was not
entitled to any compensation for lost earnings; and (4) the parties had agreed that $225 was a
reasonable amount of compensation for Mr. Rael’s unreimbursed medical expenses. With
respect to the award of future pain and suffering, the parties were ordered to provide additional
information concerning Mr. Rael’s life expectancy and discount rate. Tentative Ruling regarding
Damages, issued Dec. 18, 2019.
The basis for the award of past pain and suffering comes mostly from the medical
records. These records show that Mr. Rael sought treatment for his left shoulder within one
month of the December 17, 2015 flu vaccination. Exhibit 2 at 9. He attended physical therapy
(15 sessions) until August 4, 2016, when he was no longer improving. Id. at 20.
In the approximately eight months of physical therapy, Mr. Rael saw doctors
periodically. An orthopedist diagnosed him with left shoulder subacromial bursitis/impingement
and provide a corticosteroid. Exhibit 3 at 6-7. Although this provided some relief, weakness
returned. Id. at 4-5.
Nearly two years after the onset of shoulder pain, Mr. Rael returned to one of his doctors,
Dr. Buterbaugh, and explained that he was still having left shoulder pain and had difficulty
playing the tambourine. Dr. Buterbaugh stated that the shoulder injury causes pain and “these
symptoms will likely persist in the future.” Exhibit 7 at 2. Dr. Buterbaugh’s report concerning
the persistence of pain supports the award to compensate for future pain and suffering.
After this appointment with Dr. Buterbaugh in November 2017, Mr. Rael appears not to
have pursued treatment for his shoulder injury. See Pet’r’s Br., filed Aug. 27, 2019, at 4-5
(ending summary of Mr. Rael’s medical records with Dr. Buterbaugh); see also Resp’t’ Br., filed
Sep. 3, 2019, at 3 (same). This lack of seeking medical intervention suggests that, overall, his
injury is relatively mild and the mild pain limits the compensation for pain and suffering.
In addition to the parties’ dispute over the appropriate amount of compensation for pain
and suffering, the parties disagreed over whether Mr. Rael should receive compensation for
diminished earning capacity. Mr. Rael maintained that his career as a professional percussionist
would advance such that he would obtain either a position as a permanent member of the
Pittsburgh symphony or a permanent position as a professor. Pet’r’s Br. at 12; see also exhibit
12 (report of Dennis Mohn). However, Mr. Rael did not persuasively establish that he was likely
to be selected for either of these highly competitive positions. Thus, the Tentative Ruling
regarding Damages rejected this claim.
2

Case 1:16-vv-01462-UNJ Document 87 Filed 02/25/20 Page 3 of 3
The parties responded to the Tentative Ruling regarding Damages quickly. On January
13, 2020, the Secretary filed a status report, stating that the parties had agreed to a 2 percent net
discount rate and that Mr. Rael’s life expectancy is 36 years. The Secretary also presented a
report from an economist who opined that the net present value of 36 years of paying $100 per
year at a discount rate of 2 percent is $2,807.56.
* * *
Based upon the parties’ submissions and the Tentative Ruling, the undersigned finds that
a reasonable amount of compensation for Mr. Rael’s is a lump sum amount of $88,032.56.
This amount represents compensation for all damages that would be available under 42 U.S.C.
§ 300aa-15(a). The Secretary shall pay this amount 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 is
directed to enter judgment in case 16-1462V according to this decision.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
3