VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01712
Package ID: USCOURTS-cofc-1_16-vv-01712
Petitioner: Alceo Lucarelli
Filed: 2016-12-29
Decided: 2019-11-12
Vaccine: influenza
Vaccination date: 2014-10-20
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 80380

AI-assisted case summary:
On December 29, 2016, Alceo Lucarelli filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccination received on October 20, 2014, caused him to suffer a shoulder injury related to vaccine administration (SIRVA). Mr. Lucarelli, born July 22, 1942, received the flu shot in his left deltoid. He reported that the vaccination was painful and that within days, the pain intensified, starting at the injection site and radiating down his left arm. His medical history prior to the vaccination did not reflect any shoulder pain. 

Mr. Lucarelli's condition progressed, and he began experiencing pain in his right shoulder as well. Medical evaluations included an EMG and nerve conduction study, which showed no evidence of motor sensory neuropathy but did show evidence of left carpal tunnel syndrome. An X-ray revealed a small olecranon bone spur with adjacent soft tissue swelling suggesting bursitis. An MRI of his left shoulder showed tendinosis, mild fluid/edema within the subacromial subdeltoid bursa, and moderate-to-advanced acromioclavicular joint arthrosis with marginal osteophyte formation and capsular hypertrophy. An MRI of his cervical spine showed multilevel and multifactorial central canal and foraminal stenosis with underlying cord compression.

Petitioner's expert, Dr. Marko Bodor, a physician with experience in neuromuscular and sports medicine, opined that the flu vaccination likely entered Mr. Lucarelli's subdeltoid bursa and rotator cuff, causing inflammation that led to shoulder impingement. Dr. Bodor explained that pre-existing acromioclavicular joint hypertrophy or osteoarthritis, common in men over 50 involved in manual labor, could be exacerbated by the acute inflammatory response from the vaccine, precipitating impingement symptoms. He further theorized that compensatory movements for left shoulder pain could increase load on the cervical spine, precipitating spinal stenosis symptoms, which could explain the pain in the right shoulder and down both arms, described as classic symptoms of cervical central spinal stenosis. Dr. Bodor concluded that the vaccination was, more likely than not, the cause of Mr. Lucarelli's symptoms.

Respondent initially suggested that pre-existing conditions explained the symptoms but later joined in a motion for a ruling on entitlement. On February 4, 2019, Chief Special Master Nora Beth Dorsey issued a Ruling on Entitlement, finding that Mr. Lucarelli met the "causation-in-fact" standard under Althen v. HHS, concluding that the vaccination was a substantial factor in causing his SIRVA, despite the pain extending to the non-vaccinated shoulder, which Dr. Bodor explained through compensatory mechanisms and cervical spine issues. The Special Master found a logical sequence of cause and effect between the vaccination and the injury.

Following the entitlement ruling, the parties negotiated damages. On November 12, 2019, Chief Special Master Dorsey issued a decision awarding Mr. Lucarelli $80,000.00 for past pain and suffering and $380.54 for past unreimbursable medical expenses, totaling $80,380.54. Petitioner was represented by Ronald Craig Homer of Conway, Homer, P.C., and Respondent was represented by Voris Edward Johnson of the U.S. Department of Justice.

Theory of causation field:
Alceo Lucarelli, a 72-year-old male, received an influenza vaccine on October 20, 2014. Within days, he developed pain in his left shoulder at the injection site, which radiated down his arm and eventually extended to his right shoulder. The case proceeded as an off-Table claim, requiring proof of causation-in-fact. Petitioner's expert, Dr. Marko Bodor, opined that the vaccination likely caused inflammation in the subdeltoid bursa and rotator cuff, leading to impingement syndrome. Dr. Bodor also explained that Mr. Lucarelli's pre-existing cervical spine stenosis, combined with compensatory movements for left shoulder pain, could have precipitated symptoms in the right shoulder. Chief Special Master Nora Beth Dorsey found a logical sequence of cause and effect between the vaccination and the injury, satisfying the "causation-in-fact" standard. The Special Master awarded Mr. Lucarelli $80,000.00 for past pain and suffering and $380.54 for past unreimbursable medical expenses, totaling $80,380.54. Petitioner was represented by Ronald Craig Homer, and Respondent was represented by Voris Edward Johnson.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_16-vv-01712-0
Date issued/filed: 2019-03-13
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/04/2019) regarding 47 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1712V
Filed: February 4, 2019
UNPUBLISHED
ALCEO LUCARELLI,
Special Processing Unit (SPU);
Petitioner, Ruling on Entitlement; Ruling on the
v. Record; Causation-In-Fact; Influenza
(Flu) Vaccine; Shoulder Injury
SECRETARY OF HEALTH AND Related to Vaccine Administration
HUMAN SERVICES, (SIRVA)
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On December 29, 2016, Alceo Lucarelli (“Mr. Lucarelli” or “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” or “Program”), alleging that as a result of
receiving the influenza (“flu”) vaccination on October 20, 2014, he suffered a shoulder
injury related to vaccine administration (“SIRVA”). See Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is 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).
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).
1

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 2 of 11
Petitioner has now moved for a ruling on the written record finding that he is
entitled to compensation. For the reasons discussed herein, the undersigned grants
petitioner’s motion and finds that petitioner is entitled to compensation for his SIRVA.
I. Procedural History
On January 4, 2017, petitioner filed medical records, affidavits, and a Statement
of Completion. ECF Nos. 6-9; 12. After conducting a review of the records, on June 16,
2017, respondent filed a status report stating that he was willing to engage in settlement
negotiations and inviting petitioner to forward a settlement demand. ECF No. 21. The
parties, therefore, began discussions regarding an informal resolution of petitioner’s
claim.
On December 18, 2017, petitioner filed a status report indicating that, in
response to his demand, “[r]espondent provided a counteroffer . . . indicating that
petitioner’s pre-existing problems likely explain his current symptoms.” ECF No. 36.
Accordingly, petitioner requested the opportunity to supplement the record with an
expert report to clarify the symptoms related to petitioner’s alleged injury. Id.
On February 2, 2018, petitioner filed an expert report and accompanying exhibits.
ECF No. 38. On May 4, 2018, petitioner filed a status report indicating that, despite
engaging in settlement discussions following the submission of petitioner’s expert
report, the parties’ valuation of petitioner’s claim remained disparate and requested
guidance from the Court. ECF No. 41. A Rule 5 status conference was held on June
19, 2018, during which the undersigned tentatively found that petitioner met his burden
of proving causation-in-fact under Althen v. HHS, 418 F.3d 1274 (Fed. Cir. 2005). ECF
No. 44.
On August 7, 2018, petitioner filed a motion requesting a ruling on the record
finding that he is entitled to compensation. ECF No. 45. Respondent filed a response
on August 21, 2018, joining petitioner’s request for a ruling on the record and electing
not to submit additional evidence on the issue of entitlement. Id.
The undersigned finds that this case is ripe for adjudication on the question of
whether petitioner is entitled to compensation for his alleged SIRVA.
II. Factual History
Mr. Lucarelli was born on July 22, 1942. Petition at 2; Exhibit 1 at 2. In his
affidavit, Mr. Lucarelli stated that he lives on 5 acres of land, half of which requires
tending. Exhibit 21 at 1. Specifically, he stated that prior to October 2014 his activities
in and around his home included planting trees, installing fencing, repairing stone walls,
and home renovations such as remodeling of his master bathroom. Id.
2

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 3 of 11
On October 20, 2014, petitioner received a flu vaccination in his left deltoid.
Exhibit 1 at 2. Prior to his vaccination, Mr. Lucarelli’s medical history does not reflect
any record of shoulder pain. See generally Exhibit 9.3
In his affidavit, petitioner stated that the administration of the vaccination was
very painful and that, within days, the pain intensified. Exhibit 21 at 2. He further stated
the pain started at the injection site on his left deltoid and radiated down his left arm. Id.
On January 12, 2015, Mr. Lucarelli filed a Vaccine Adverse Event Reporting
System (“VAERS”) report. The report describes the adverse event as “difficulty raising
left arm since the vaccination” and “pain at injection site” beginning on October 21,
2014. Exhibit 17 at 1.
On January 14, 2015, Mr. Lucarelli consulted with neurologist, Dr. Peter Greco.
Exhibit 11 at 11. During this visit Mr. Lucarelli reported that, after receiving a flu
vaccination on October 20, 2014, he developed pain and discomfort in his left arm. Id.
An EMG showed no evidence of motor sensory neuropathy, and no definite evidence of
plexopathy or radiculopathy. Id. An x-ray showed “small olecranon bone spur with
adjacent soft tissue swelling suggesting bursitis.” Id. at 10.
Mr. Lucarelli underwent magnetic resonance imaging (“MRI”) of his left shoulder
and his cervical spine on January 16, 2015. Exhibit 11 at 2, 8-9. The MRI of
petitioner’s left shoulder showed supraspinatus and infraspinous tendinosis, mild
fluid/edema within the subacromial subdeltoid bursa, and “moderate-to-advanced
acromioclavicular joint arthrosis with marginal osteophyte formation and capsular
hypertrophy.” Id. at 2. The MRI of petitioner’s cervical spine showed “multilevel and
multifactorial central canal and foraminal stenosis, most notably centrally and toward the
left at the C6-C7 level with underlying cord compression.” Id. at 9.
On January 23, 2015, Mr. Lucarelli attended a follow-up appointment with Dr.
Greco. Exhibit 11 at 13. The medical record states that petitioner “still has the left
shoulder pain [and] does note some right shoulder pain.” Id. Petitioner was advised to
attend physical therapy. Id. at 14.
On January 29, 2015, Mr. Lucarelli had his initial physical therapy evaluation.
Exhibit 15 at 20. The evaluation indicated that petitioner had a flu shot in October in his
left arm and “the next day the left arm started to get sore in the left elbow and wrist and
then eventually the pain started to move into the right[.]” Id. Mr. Lucarelli rated his pain
at 8 out of 10. Id. Petitioner continued physical therapy through March 5, 2015 and,
according to the discharge record, “[p]atient had increased [range of motion] in B[oth]
shoulder[s] but therapy was unable to decrease pain in all of his Jts [joints].” Id. at 23.
Mr. Lucarelli presented to Dr. David Cohen, an orthopedic specialist, on February
9, 2015. Exhibit 2 at 1-2. Petitioner reported that he experienced left shoulder pain
immediately after his October 20, 2014 vaccination. Id. at 1. Petitioner also noted pain
3 Petitioner’s medical history includes restless leg syndrome, sleep apnea, arthritis, and chest pain.
3

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 4 of 11
that moved toward his right shoulder as well as increased pain in his elbows and knees.
Id. Dr. Cohen assessed Mr. Lucarelli with impingement syndrome, stating that his
“overall impression is that this began with a subacromial bursitis in reaction to a flu
vaccine injection that most likely went a little deep into the subacromial bursa and
caused a reaction. Subsequently, possibly from overuse, he developed some right-
sided shoulder impingement as well.” Id.
On March 3, 2015, Mr. Lucarelli presented to Dr. Stephen Moses for a
rheumatology consultation. Exhibit 12 at 6. Dr. Moses noted that petitioner “is
complaining of generalized arthralgias that began in his left shoulder soon after
receiving a flu shot in October 2014.” Id.
Mr. Lucarelli had a hematology and oncology consultation with Dr. Kevin Jain on
April 6, 2015. Exhibit 13 at 10-11. Petitioner reported that, subsequent to his October
flu vaccination, he developed left shoulder pain that migrated to his right shoulder. Id. at
10. Dr. Jain noted that petitioner “then had subsequent elbow pain, joint pain, and bony
pain. He reports that he did have physical therapy, but his pain has been relentless.”
Id. at 10.
Petitioner filed a second VAERS report on October 5, 2015. Exhibit 17 at 3. This
report states that “after vaccination, the patient developed pain in shoulders across back
and down both arms radiating to hands and also had muscle deterioration and bone
issues.” Id. at 4.
On March 1, 2016, petitioner was seen by Dr. Peter Levinson. Exhibit 18.
Petitioner reported a history of pain after receiving the flu shot. Id. at 3. Dr. Levinson
noted that Mr. Lucarelli “had a prolonged problem with pain and discomfort in the area
and has had an extensive investigation[.] There is no obvious etiology but likely it is
less frequent and not as severe. It is possible that it is a neuralgic pain possibly from
nerve irritation[.]” Id. Petitioner presented to Dr. Levinson again on August 18, 2016.
Exhibit 23 at 4. During this appointment he noted that the pain was less frequent and
“may occur once a month.” Id.
A. Petitioner’s Expert Report
In addition to medical records, Mr. Lucarelli submitted an expert report of Dr.
Marko Bodor. Exhibit 24. Dr. Bodor is a board certified physician with experience in
neuromuscular and sports medicine. Exhibit 25 (Curriculum Vitae of Dr. Marko Bodor).
He has expertise in shoulder injuries related to vaccines and has published numerous
journal articles on the subject. Id. at 3.
In his expert report, Dr. Bodor noted that Mr. Lucarelli had no pre-existing pain in
his left shoulder, and stated that the flu vaccination administered on October 20, 2014
likely went into petitioner’s subdeltoid bursa and rotator cuff. Exhibit 24 at 2. Dr. Bodor
also provided an explanation for Mr. Lucarelli’s initial pain, stating that when a vaccine is
injected into the subdeltoid bursa it can cause a robust local and immune inflammatory
4

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 5 of 11
response resulting in pain and a reduced range of motion. Id. at 2, citing Exhibit 24,
Tab A (Bodor, M and Montalvo, E, Vaccine-related shoulder dysfunction, Vaccine 25
(2007) 585-587) and Exhibit 24 Tab B (Atanasoff, et al, Shoulder injury related to
vaccine administration (SIRVA), Vaccine 28 (2010) 8049-8052). Dr. Bodor also stated
that inflammation in the rotator cuff and bursa likely resulted in shoulder impingement,
as noted by one of petitioner’s treating physicians, Dr. Cohen. Id. Dr. Bodor cited
medical literature that indicated a SIRVA may not only result in deltoid bursitis, but also
may relate to tendonitis, impingement syndrome, rotator cuff tear, and adhesive
capsulitis. Id. at 2-3 citing Exhibit 24, Tab A (Bodor, Vaccine-related shoulder
dysfunction, Vaccine 25 (2007)) and Exhibit 24 Tab B (Atanasoff et al, Shoulder injury
related to vaccine administration (SIRVA), Vaccine 28 (2010)).
Dr. Bodor also addressed Mr. Lucarelli’s underlying physiology, and explained
how it contributed to his left shoulder injury and symptoms. Dr. Bodor noted that
petitioner’s left shoulder MRI showed moderate to severe acromioclavicular (“AC”) joint
hypertrophy or osteoarthritis, which he states is a common finding among men above
the age of 50 who played sports or were involved in manual labor. Id. at 3. The doctor
further indicated that hypertrophy of the AC joint narrows the subacromial outlet,
predisposing the shoulder to impingement. Id. According to Dr. Bodor, the combination
of pre-existing joint hypertrophy or osteoarthritis with an acute inflammatory response in
the bursa and/or rotator cuff caused by a vaccination could easily precipitate symptoms
of impingement. Id. He notes that, “[o]nce the cycle of impingement starts, it can
perpetuate itself because impingement causes inflammation and inflammation causes
impingement.” Id.
Additionally, Dr. Bodor provided an explanation regarding how Mr. Lucarelli’s
multilevel spondylosis and stenosis in his cervical spine complicated petitioner’s injury,
and manifested additional symptoms in his right shoulder. Id. Dr. Bodor described how
patients with shoulder impingement may compensate for pain and reduced range of
motion at the glenohumeral joint4 by increasing motion at the scapulothoracic joint.5 Id.
citing Exhibit 24 Tab D (Graichen H et al., Three-dimensional analysis of shoulder girdle
and supraspinatus motion patters in patients with impingement syndrome J Orthop Res.
2001; 19:1192-1198). Dr. Bodor noted that “[t]his compensatory movement involves
increased activation of muscles which have their origin or insertion on the spine. This
could result in increased load on the spine and the precipitation of spinal stenosis
symptoms.” Id. According to Dr. Bodor, this could have occurred in petitioner. Id. Dr.
Bodor also noted that “sometime after the onset of his left shoulder pain, [petitioner]
4 The glenohumeral joint is the joint between the humerus (upper arm bone) and scapular (shoulder
blade). Grey’s Anatomy, 813 (Susan Strandring, et al., eds. 41st Ed. 2016).
5 The scapulothoracic joint refers to the space between the scapula (shoulder blade) and the underlying
chest wall. See Grey’s Anatomy, 810 (Susan Strandring, et al., eds. 41st Ed. 2016) (describing the
scapulothoracic joint).
5

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 6 of 11
developed pain in the right shoulder and down both arms, classic symptoms of cervical
central spinal stenosis.” Id.
Dr. Bodor concluded that, in his opinion, to a reasonable degree of medical
certainty, Mr. Lucarelli’s symptoms were, more likely than not, a result of his October
20, 2014 vaccination. Id.
III. Ruling on Entitlement
A. Legal Standard
In this case, because the petition predates the inclusion of a SIRVA on the
Vaccine Injury Table, petitioner must show that his injury was “caused-in-fact” by the
vaccination in question. § 300aa-13(a)(1)(B); § 300aa-11(c)(1)(C)(ii). The showing of
“causation-in-fact” must satisfy the “preponderance of the evidence” standard. § 300aa-
13(a)(1)(A); see also Althen, 418 F.3d at 1279; Hines v. HHS, 940 F.2d 1518, 1525
(Fed. Cir. 1991).
The petitioner need not show that the vaccination was the sole cause or even the
predominant cause of the injury or condition, but must demonstrate that the vaccination
was at least a “substantial factor” in causing the condition, and was a “but for” cause.
Shyface v. HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999). Additionally, "[t]here must be a
‘logical sequence of cause and effect showing that the vaccination was the reason for
the injury.’” Id. The Althen court explained this “causation-in-fact” standard, as follows:
Concisely stated, Althen’s burden is to show by preponderant evidence that
the vaccination brought about her injury by providing: (1) a medical theory
causally connecting the vaccination and the injury; (2) a logical sequence
of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of proximate temporal relationship between
vaccination and injury. If Althen satisfies this burden, she is “entitled to
recover unless the [government] shows, also by a preponderance of the
evidence, that the injury was in fact caused by factors unrelated to the
vaccine.”
Althen, 418 F.3d at 1278 (citations omitted). The court also indicated that, in finding
causation, a fact-finder may rely upon “circumstantial evidence,” which the court found
to be consistent with the “system created by Congress, in which close calls regarding
causation are resolved in favor of injured claimants.” Id. at 1280.
Section 11(c)(1) of the Vaccine Act also contains requirements concerning the
type of vaccination received and the geographic location where it was administered, the
duration or significance of the injury, and the lack of any other award or settlement. See
§ 11(c)(1)(A),(B),(D) and (E). With regard to duration, whether a Table or non-Table
claim, the petitioner must establish he:
(i) suffered the residual effects or complications of such illness,
disability, injury, or condition for more than 6 months after the
6

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 7 of 11
administration of the vaccine, or (ii) died from the administration of
the vaccine, or (iii) suffered such illness, disability, injury, or condition
from the vaccine which resulted in inpatient hospitalization and
surgical intervention.
§ 11(c)(1)(D).
B. Analysis
In his Motion for Ruling on the Record, petitioner argues that he suffered a left
shoulder SIRVA as a result of receiving the flu vaccine on October 20, 2014, and that
the pain and reduced range of motion progressed and extended into his right shoulder.
ECF No. 45 at 17-18. Petitioner further argues that, based on the medical records,
affidavit testimony, expert report, and supporting medical literature, he has satisfied the
three prongs of Althen. The undersigns agrees.
i. Althen Prong One: A Medical Theory Causally Connecting the
Vaccination and Injury
Although petitioner’s claim was filed before SIRVA was added as a Table claim,
analysis of the Qualifications and Aids to Interpretation (“QAI”) for SIRVA is informative.
The criteria are as follows:
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). Petitioner’s claim is atypical in that his pain and reduced
range of motion was not limited to the shoulder in which he received the vaccination.
There are also other conditions and abnormalities present that would explain certain
symptoms, specifically the pain in his right shoulder.
Petitioner’s expert, Dr. Bodor, provided a medical theory for how a vaccination in
the left shoulder can result in a left shoulder SIRVA, with pain and reduced range of
motion that also manifests in the right shoulder. Dr. Bodor explained that when a
vaccination is administered into the subdeltoid bursa it can cause a robust local and
immune inflammatory response resulting in pain and reduced range of motion. Id. at 2
(citing Bodor, Vaccine 25 (2007) 585-587; Atanasoff, et al., Vaccine 28 (2010) 8049-
8052). Dr. Bodor also stated that inflammation in the rotator cuff and bursa may result
7

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 8 of 11
in numerous symptoms, including deltoid bursitis, tendonitis, impingement syndrome,
rotator cuff tears, and adhesive capsulitis. Id. at 2-3 (citing Bodor, Vaccine 25 (2007)
585-587; and Atanasoff et al., Vaccine 28 (2010) 8049-8052).
Dr. Bodor also stated that certain underlying physiological conditions can
contribute to these symptoms, including moderate to severe AC joint hypertrophy or
osteoarthritis, which are common among men above the age of 50 who led physically
active lives. Id. at 3. Further, according to Dr. Bodor, the combination of pre-existing
joint hypertrophy or osteoarthritis with an acute inflammatory response in the bursa
and/or rotator cuff could easily precipitate symptoms of impingement. Id.
Additionally, Dr. Bodor provided an explanation regarding how multilevel
spondylosis and stenosis in the cervical spine can manifest SIRVA symptoms in the
shoulder that did not receive the vaccine. Id. Dr. Bodor described how patients with
shoulder impingement may compensate for pain and reduced range of motion by
increasing motion at the scapulothoracic joint. According to Dr. Bodor “[t]his
compensatory movement involves increased activation of muscles which have their
origin or insertion on the spine. This could result in increased load on the spine and the
precipitation of spinal stenosis symptoms.” Id. Further, “pain in the right shoulder and
down both arms” are “classic symptoms of cervical central spinal stenosis.” Id.
The undersigned concludes that, based on the expert report of Dr. Bodor and the
articles cited therein, petitioner has provided preponderant evidence that the vaccination
petitioner received can cause a left shoulder SIRVA. Further, due to certain underlying
pathology, the injury can also manifest as right shoulder pain though the mechanism
described by Dr. Bodor. Accordingly, petitioner has satisfied Althen Prong One.
ii. Althen Prong Two: A Logical Sequence of Cause and Effect
Showing the Vaccine Was the Reason for the Injury
Guided by the criteria for evaluating a Table SIRVA injury, the undersigned finds
that Mr. Lucarelli has shown, by a preponderance of the evidence, a logical sequence of
cause and effect showing that his October 20, 2014 flu vaccine was the reason for his
shoulder injuries. Specifically, the criteria for evaluating a SIRVA injury, as set forth
above, includes (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; and (ii) pain occurs within the specified timeframe. 42 C.F.R. §
100.3(c)(10). The criteria also require consideration of (iii) whether pain and reduced
range of motion are limited to the shoulder in which the vaccine was administered and
(iv) whether the existence of another condition or abnormality would explain the
patient’s symptoms. Id.
a. Petitioner did not have a history of pain, inflammation, or
dysfunction of the affected shoulder prior to vaccine
administration.
8

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 9 of 11
Prior to October 20, 2014, petitioner had no record of pain, inflammation, or
dysfunction in either of his shoulders. See Pet. Ex. 9 at 4-5 (describing petitioner’s
medical history).
b. Onset occurred within the specified timeframe.
Petitioner’s medical records and affidavit evidence demonstrate that petitioner
consistently placed the onset of his condition within 48 hours of his October 20, 2014
vaccination.
As set forth above, on January 12, 2015, petitioner filed a VAERS report noting
an October 21, 2014 onset date. Exhibit 17 at 1. Moreover, all of petitioner’s
subsequent reports consistently place onset of his symptoms within 48 hours of
receiving the vaccination. See, e.g., Exhibit 11 at 11 (reporting that petitioner
developed pain and discomfort in the area in which he received the flu shot and has had
“recurrent aching pain since.”); Exhibit 2 at 1 (stating that petitioner noted the onset of
left shoulder pain immediately after his October 20, 2014 flu shot). Exhibit 15 at 20
(physical therapy evaluation reporting that petitioner experienced pain the day after
vaccination). Further, petitioner stated in his affidavit that the administration of the
vaccination was itself painful, and within days the pain intensified. Exhibit 21 at 3.
Accordingly, based on petitioner’s sworn statement and medical records,
petitioner has provided preponderant evidence that his shoulder pain began within 48
hours of his October 20, 2014 vaccination.
c. Pain and reduced range of motion were not limited to shoulder in
which the intramuscular vaccine was administered.
Pain and reduced range of motion began in petitioner’s left shoulder; however, it
was not limited to this area. Petitioner reported that following the manifestation of pain
in his left shoulder, he began to experience pain in his right shoulder in January of 2015.
See, e.g., Exhibit 11 at 13 (reporting that petitioner had some right shoulder pain). See
also, e.g., Exhibit 15 at 20 (establishing that petitioner’s pain “started to move into the
right[.]”); Exhibit 17 at 3 (reporting “pain in shoulders across back and down both arms .
. .”).
Nevertheless, Dr. Bodor offered a reasonable explanation, supported by scientific
evidence, regarding how and why petitioner suffered pain in both his left and right
shoulders. Specifically, Dr. Bodor noted that petitioner’s flu vaccination “likely went into
his subdeltoid bursa and rotator cuff” and concluded that the resulting pain in his left
shoulder was consistent with an inflammatory response. Exhibit 24 at 2. Dr. Bodor
explained that this inflammation of the rotator cuff and bursa likely resulted in shoulder
impingement and that “[p]atients with shoulder impingement may compensate for pain
and reduced range of motion at the glenohumeral joint by increasing motion at the
scapulothoracic joint.” Id. In synthesizing these points Dr. Bodor states:
9

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 10 of 11
This compensatory movement involves increased activation of the
trapezius and levator scapulae muscles which have their origin or
insertion on the spine. This could result in increased load on spine
and precipitation of spinal stenosis symptoms. This may indeed
have been the case with Mr. Lucarelli. It is noted that sometime
after the onset of his left shoulder pain, he developed pain in the
right shoulder and down both arms, classic symptoms of cervical
central spinal stenosis.
Id. (citations omitted). Respondent has not controverted Dr. Bodor’s opinion.
The undersigned finds that Dr. Bodor is well qualified to opine on the subject.
Further, the undersigned finds that this mechanism of injury, and the manifestation of
symptoms in both petition’s left and right shoulders, is plausible and supported by
medical literature.
d. Conditions or abnormalities that contributed to petitioner’s
symptoms.
The undersigned finds that petitioner’s preexisting conditions contributed to, but
did not cause, petitioner’s injury. These conditions were described in petitioner’s
January 16, 2015 left shoulder MRI which showed “moderate-to-advanced
acromioclavicular joint arthrosis with marginal osteophyte formation and capsular
hypertrophy.” Exhibit 11 at 2. Dr. Bodor noted that these are common findings among
men above the age of 50 who were involved in manual labor (Exhibit 24 at 3), which
describes petitioner as he was 72 years old at the time of his vaccination and led an
active lifestyle. Further, as addressed herein at Section B(ii)(c), Dr. Bodor opined that
the combination of pre-existing joint hypertrophy or osteoarthritis with an acute
inflammatory response in the bursa and or rotator cuff could easily precipitate
symptoms of impingement. Exhibit 24 at 3. Dr. Atanasoff’s article supports this opinion.
In the article Shoulder Injury Related to Vaccine Administration, Dr. Atanasoff concludes
“some of the MRI findings in our case series, such as rotator cuff tears, may have been
present prior to vaccination and became symptomatic as a result of vaccination-
associated synovial inflammation.” Atanasoff at 8-51.
Therefore, the undersigned finds the existence of preponderant evidence of a
medical theory causally connecting the vaccination and injury. As previously noted,
although petitioner’s pain was not limited to his vaccinated shoulder, petitioner has
offered a reasonable explanation, supported by scientific evidence, regarding how and
why his symptoms extended to his right shoulder. Further, while petitioner’s arthrosis,
osteophyte formation, and capsular hypertrophy may have contributed to his injury, he
did not have pain until his vaccination, and his injury was triggered by the vaccination.
iii. Althen Prong Three: Proximate Temporal Relationship Between
Vaccination and Injury
10

Case 1:16-vv-01712-UNJ Document 51 Filed 03/13/19 Page 11 of 11
Under Althen prong three, there must be a proximate temporal relationship
between vaccination and injury. Under the SIRVA criteria, the onset of the symptoms of
petitioner’s shoulder injury must begin within 48 hours or less of vaccination. The
undersigned has found that the onset of petitioner’s shoulder injury began within 48
hours of vaccination, and thus, petitioner has satisfied Althen prong three.
IV. Factors Unrelated to Vaccination
Respondent has not asserted, and the undersigned does not find, that there is
any evidence in the record to support respondents’ burden of establishing an alternative
cause for petitioner’s injury unrelated to a vaccination.
V. Conclusion
In light of the above, and in view of the submitted evidence, the
undersigned GRANTS petitioner’s motion and finds that petitioner is entitled to
Vaccine Act compensation.
IT IS SO ORDERED.
/s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
11

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_16-vv-01712-1
Date issued/filed: 2019-11-12
Pages: 17
Docket text: PUBLIC DECISION (Originally filed: 08/21/2019) regarding 56 DECISION of Special Master Signed by Special Master Nora Beth Dorsey. (ypb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1712V
Filed: August 21, 2019
UNPUBLISHED
ALCEO LUCARELLI,
Special Processing Unit (SPU);
Petitioner, Damages; Causation-In-Fact;
v. Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On December 29, 2016, Alceo Lucarelli (“Mr. Lucarelli” or “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”), alleging that, as a result of receiving an
influenza (“flu”) vaccination on October 20, 2014, he suffered a shoulder injury related to
vaccine administration (“SIRVA”). See Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters. On February 4, 2019, a
Ruling on Entitlement was issued, finding petitioner was entitled to compensation for a
left shoulder SIRVA that also manifested as right shoulder pain. For the reasons
discussed below, the undersigned now awards compensation in the amount of
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
1

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 2 of 17
$80,000.00 for past pain and suffering, and $380.54 for past unreimbursable
medical expenses.
I. Procedural History
On January 4, 2017, petitioner filed medical records, affidavits, and a Statement
of Completion. ECF Nos. 6-9; 12. After conducting a review of the records, on June 16,
2017, respondent filed a status report stating that he was willing to engage in settlement
negotiations and inviting petitioner to forward a settlement demand. ECF No. 21.
On December 18, 2017, petitioner filed a status report indicating that, in
response to his demand, “[r]espondent provided a counteroffer . . . indicating that
petitioner’s pre-existing problems likely explain his current symptoms.” ECF No. 36.
Accordingly, petitioner requested the opportunity to supplement the record with an
expert report to clarify the symptoms related to petitioner’s alleged injury. Id.
On February 2, 2018, petitioner filed an expert report and accompanying exhibits.
ECF No. 38. On May 4, 2018, petitioner filed a status report indicating that, despite
engaging in settlement discussions following the submission of petitioner’s expert
report, the parties’ valuation of petitioner’s claim remained disparate and requested
guidance from the Court. ECF No. 41. A Rule 5 status conference was held on June
19, 2018, during which the undersigned tentatively found that petitioner met his burden
of proving causation-in-fact under Althen v. Sec’y Health & Human Servs., 418 F.3d
1274 (Fed. Cir. 2005). ECF No. 44.
On August 7, 2018, petitioner filed a motion requesting a ruling on the record
finding that he is entitled to compensation. ECF No. 45. Respondent filed a response
on August 21, 2018, joining petitioner’s request for a ruling on the record and electing
not to submit additional evidence on the issue of entitlement. Id.
On February 4, 2019, the undersigned issued a ruling on entitlement finding
petitioner entitled to compensation for a left shoulder SIRVA caused-in-fact by a flu
vaccination, and that the pain and reduced range of motion progressed and extended
into his right shoulder. ECF No. 47. The parties then began the process of negotiating
the appropriate amount of damages.
Petitioner filed a status report on February 27, 2019, stating that the parties’
valuation of petitioner’s claim remains disparate, and proposed a briefing scheduling to
address damages. ECF No. 49. On March 20, 2019, petitioner filed Petitioner’s
Memorandum in Support of Damages and Motion for Ruling on Damages (“Pet. Br.”).
ECF No. 54. Respondent filed Respondent’s Memorandum on Damages (“Resp. Br.”)
on April 15, 2019. ECF No. 55.
2

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 3 of 17
This case is now ripe for a determination regarding petitioner’s award of
damages.
II. Factual History
A. Medical Records
Mr. Lucarelli was born on July 22, 1942. Petition at 2; Ex. 1 at 2. In his affidavit,
Mr. Lucarelli stated that he lives on 5 acres of land, half of which requires tending. Ex.
21 at 1. Specifically, he stated that prior to October 2014 his activities in and around his
home included planting trees, installing fencing, repairing stone walls, and home
renovations such as remodeling of his master bathroom. Id.
On October 20, 2014, petitioner received a flu vaccination in his left deltoid. Ex.
1 at 2. Petitioner’s pre-vaccination medical history includes restless leg syndrome,
sleep apnea, arthritis, and chest pain, but no history of shoulder problems. See
generally Ex. 9.3 Petitioner’s medical records also show he required numerous
treatments to relieve pain stemming from osteoarthritis in his knees. Ex. 2 at 6-13
(showing a series of six injections of Orthovisc®, a sterile mixture used to relieve knee
pain in patients with osteoarthritis, between July 2, 2012 and June 17, 2013).
In his affidavit, petitioner stated that the administration of the vaccination was
very painful and that, within days, the pain intensified. Ex. 21 at 2. He further stated the
pain started at the injection site on his left deltoid and radiated down his left arm. Id. In
December of 2014, petitioner contacted his primary care physician, Dr. Paul Bellofiore.
Id. According to petitioner, Dr. Bellofiore suggested over the counter pain reliever Aleve
for one week. Id.
On January 12, 2015, Mr. Lucarelli filed a Vaccine Adverse Event Reporting
System (“VAERS”) report. The report describes the adverse event as “difficulty raising
left arm since the vaccination” and “pain at injection site” beginning on October 21,
2014. Ex. 17 at 1.
On January 14, 2015, Mr. Lucarelli consulted with neurologist Dr. Peter Greco.
Ex. 11 at 11. During this visit Mr. Lucarelli reported that, after receiving a flu vaccination
on October 20, 2014, he developed pain and discomfort in his left arm. Id. An x-ray
showed “small olecranon bone spur with adjacent soft tissue swelling suggesting
bursitis.” Id. at 10. Dr. Greco noted that petitioner was treating with Aleve “with mild
relief.” Petitioner also reported difficulty sleeping because of the pain. Id. at 11-12. No
definitive weakness was noted, and physical therapy was suggested at that time. Id. at
11-12. An electromyography (“EMG”) and nerve conduction study was also performed,
3 On September 9, 2014, petitioner was also assessed as obese, weighing 240 pounds at that time with a
body mass index of 36.41. Ex. 9 at 5.
3

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 4 of 17
which showed evidence of left carpal tunnel syndrome but was otherwise normal. Ex. 9
at 89.
Mr. Lucarelli underwent magnetic resonance imaging (“MRI”) of his left shoulder
and his cervical spine on January 16, 2015. Ex. 11 at 2, 8-9. The MRI of petitioner’s
left shoulder showed no full thickness rotator cuff tear; tendinosis in his bicep,
supraspinatus, and infraspinous tendons; mild fluid/edema within the subacromial
subdeltoid bursa; and “moderate-to-advanced acromioclavicular joint arthrosis with
marginal osteophyte formation and capsular hypertrophy.” Id. at 2. The MRI of
petitioner’s cervical spine showed “multilevel and multifactorial central canal and
foraminal stenosis, most notably centrally and toward the left at the C6-C7 level with
underlying cord compression.” Id. at 9.
On January 23, 2015, Mr. Lucarelli attended a follow-up appointment with Dr.
Greco. Ex. 11 at 13. The medical record states that petitioner “still has the left shoulder
pain [and] does note some right shoulder pain.” Id. Petitioner continued to report
difficulty sleeping. Id. Petitioner was advised to attend physical therapy and asked to
take strict precautions “especially in view of cervical MRI findings.” Id. at 14.
On January 29, 2015, Mr. Lucarelli had his initial physical therapy evaluation.
Ex. 15 at 20. The evaluation indicated that petitioner had a flu shot in October in his left
arm and “the next day the left arm started to get sore in the left elbow and wrist and
then eventually the pain started to move into the right[.]” Id. Mr. Lucarelli rated his pain
at 8 out of 10. Id. The initial evaluation stated his prior level of function as “independent
with [activities of daily living] take care of the house, walk, lift” and his current deficits as
“can’t sleep on right side, can’t reach over shoulder height without pain in both [upper
extremities]….” Id.
Mr. Lucarelli presented to Dr. David Cohen, an orthopedic specialist, on February
9, 2015. Ex. 2 at 1-2. Petitioner reported that he experienced left shoulder pain
immediately after his October 20, 2014 vaccination, and described it as “dull, achy, and
throbbing in quality, moderate in intensity, and constant in duration”. Id. at 1. Petitioner
also noted pain that moved toward his right shoulder as well as increased pain in his
elbows and knees. Id. Dr. Cohen noted that petitioner “feels that this all began as a
result of the flu shot and these migrating arthralgias have been a result of this.” Id. An
exam showed tenderness in petitioner’s left shoulder and bicep, mild right cuff
tenderness, with impingement of both shoulders. Id. However, petitioner showed full
range of motion and full strength in both shoulders. Id. Dr. Cohen assessed Mr.
Lucarelli with impingement syndrome. Id. Dr. Cohen also stated that they discussed
the “option of corticosteroid injection in the shoulder which we will hold off on for now
but may consider” later. Id. at 1-2.
On March 3, 2015, Mr. Lucarelli presented to Dr. Stephen Moses for a
rheumatology consultation. Ex. 12 at 6. Dr. Moses noted that petitioner “is complaining
4

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 5 of 17
of generalized arthralgias that began in his left shoulder soon after receiving a flu shot in
October 2014….” Id. A physical exam showed slightly tender left elbow, and shoulders
with good range of motion. Id. Dr. Moses stated that “rheumatoid arthritis remains a
possibility” and “he was “concerned about the IgM lambda protein and feel [petitioner]
should be evaluated by a hematologist for this as well.” Id. at 6.
Petitioner attended 8 physical therapy sessions from January 29, 2015 through
March 5, 2015. Petitioner periodically reported various ailments and locations of pain,
including his knees and his joints in general. See, e.g., Ex. 15 at 27 (noting that
petitioner reported “I was really sore while I was away. Started to get pain in both knees
as well as the pain I have in shoulders elbow and wrist.”); Ex. 15 at 39 (reported “[l]ast
night had a bad night where had sharp pains on the right shoulder elbow and knee and
2 alive [sic] did not help and left shoulder still has the continued dull pain”). The
physical therapy records do not consistently indicate petitioner’s pain levels. However,
when pain levels were reported they often did not specifically state the location. For
example, on February 18, 2015 petitioner reported that he was “sore in all my joints that
are constant at about 5/10 but sometimes I get sharp pain in the joints that are a 10/10”.
Id. at 33. On February 26, 2015, petitioner reported sharp pains in his right shoulder,
elbow, and knee, and continued dull pain in his left shoulder. Id. at 39. Petitioner again
complained of pain on March 2, 2015, categorizing it as “serious pain” in his fingers,
thumb, elbows, and shoulder. Id. at 42. On March 5, petitioner again complained of
“pain in all the joints” of 6/10 but that his range of motion improved. Id. at 45.
According to the discharge record, “[p]atient had increased [range of motion] in B[oth]
shoulder[s] but therapy was unable to decrease pain in all of his Jts [joints].” Id.
Petitioner had a hematology and oncology consultation with Dr. Kevin Jain on
April 6, 2015. Ex. 13 at 10-11. Petitioner reported that, subsequent to his October flu
vaccination, he developed left shoulder pain that migrated to his right shoulder. Id. at
10. Dr. Jain noted that petitioner “then had subsequent elbow pain, joint pain, and bony
pain. He reports that he did have physical therapy, but his pain has been relentless.”
Id.
Petitioner had a follow-up with Dr. Moses on May 7, 2015. Dr. Moses noted
petitioner’s left acromioclavicular joint was tender, and assessed him with probable
epicondylitis in his left elbow, and left rotator cuff tendinitis. Ex. 12 at 5. Aleve and ice
were recommended. Id.
Petitioner filed a second VAERS report on October 5, 2015. Ex. 17 at 3. This
report states that “after vaccination, the patient developed pain in shoulders across back
and down both arms radiating to hands and also had muscle deterioration and bone
issues.” Id. at 4.
5

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 6 of 17
On March 1, 2016, petitioner was seen by Dr. Peter Levinson. Ex. 18. Petitioner
reported a history of pain after receiving the flu shot in his left arm that could last hours.
Id. at 1-3. The pain was “very frequent at first, now much less frequent”. Id. Dr.
Levinson noted that Mr. Lucarelli had a prolonged problem with pain and discomfort "in
the area [of the flu shot] and has had an extensive investigation[.] There is no obvious
etiology but likely it is less frequent and not as severe. It is possible that it is a neuralgic
pain possibly from nerve irritation[.]” Id. No therapy was discussed or recommended at
that time. Id. at 3. Petitioner presented to Dr. Levinson again on August 18, 2016. Ex.
23 at 4. During this appointment he noted that the pain was less frequent and “may
occur once a month.” Id. No therapy was discussed or recommended at that time. Id.
Petitioner saw Dr. Cohen for right shoulder pain on September 1, 2017. Ex. 26
at 3. Petitioner reported his pain level was 10/10, and that he awoke the day before
unable to raise his right arm. Id. Petitioner was diagnosed with a rotator cuff tear
“which has been exacerbated by some acute bursitis.” Id. Physical therapy was
ordered, and Dr. Cohen stated “[w]e will consider a shot if it is not getting better over the
next 3-6 weeks.” Id.
On June 4, 2018, petitioner again saw Dr. Cohen, and reported pain (3 out of 10)
in both shoulders. Id. at 1. Petitioner reported the pain bothers him “when he sleeps on
them or puts weight on the elbow.” Ex. 26 at 1. However, petitioner also stated that
there was no numbness or tingling, and the pain did not wake him from sleep. Id.
Petitioner was assessed with impingement syndrome of the right shoulder. Id. Physical
therapy was again recommended, but no follow-up plan was described. Id. at 2.
Between June 13, 2018 and July 10, 2018, Mr. Lucarelli attended 8 sessions of
physical therapy. Ex. 27 at 1-21. Petitioner’s physical therapy evaluation on June 13,
2018, noted ongoing bilateral shoulder pain in his right shoulder more than his left for
several years, and that recent x-ray showed arthritic conditions. Id. at 23-24. Petitioner
also reported that his right shoulder pain “can go up to 7/10”. Id. at 23. An evaluation at
that time showed reduced range of motion in both shoulders (right more so then left)
and moderate reduced strength (4 of 4+ out of 5). Id. at 23. Petitioner also reported
that his right shoulder recently became more painful, with increased difficulty reaching
overhead, reaching to the side, lifting, and sleeping. Id. Additionally, a self-evaluation
records certain tasks as severely difficult (heavy household chores, washing his back),
and others moderately difficult (carry a shopping bag). Id. at 19. The physical therapy
record from June 13 also indicate petitioner’s injury was interfered with his normal social
activities “quite a bit”. Id. Petitioner reported he was retired and took Aleve if needed for
pain. Id. at 23. On July 10, 2018, petitioner reported sleeping on his shoulder still
caused pain, but his movement was improving. Id. at 1.4
4 The daily physical therapy notes do not include a description of petitioner’s pain or subjective pain
levels.
6

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 7 of 17
B. Petitioner’s Expert Report
In addition to medical records, Mr. Lucarelli submitted an expert report of Dr.
Marko Bodor. Ex. 24. In his expert report, Dr. Bodor stated that the flu vaccination
administered on October 20, 2014 likely went into petitioner’s subdeltoid bursa and
rotator cuff, causing inflammation in the rotator cuff and bursa that likely resulted in
shoulder impingement, as noted by one of petitioner’s treating physicians, Dr. Cohen.
Id. at 2.
Additionally, Dr. Bodor provided an explanation regarding how multilevel
spondylosis and stenosis in petitioner’s cervical spine complicated petitioner’s injury,
and manifested additional symptoms in his right shoulder. Id. at 3.
C. Impact on Personal Life
Petitioner submitted an affidavit on December 27, 2016. Ex. 21. At that time,
petitioner reported that he continued to have left shoulder pain with everyday activities,
including driving, reaching for objects, and carrying groceries. Id. at 3. Petitioner also
reported that he has been unable to return to the physical activity level he enjoyed prior
to his vaccination.
III. Party Contentions
Petitioner argues that he should be awarded $100,000.00 for pain and suffering.
Pet. Brief at 18. Petitioner asserts that his course of treatment has been lengthy,
comprising over four years of treatment, 24 physical therapy sessions, an MRI of his left
shoulder and cervical spine, an EMG/NCS study, and three orthopedic specialist
appointments. Id. at 13-14. Petitioner emphasizes that his injury caused pain and
difficulty with mobility that impacted his family and physically-active lifestyle. Id. at 14-
15. Petitioner alleges that his injury forced him to reduce his travel, stop hiking and
foraging for mushrooms, and resulted in his inability to maintain his property at the
same level as he did prior to his injury.5 Petitioner also notes that his case is unique
because his physical symptoms extended beyond his left shoulder, manifesting in his
right shoulder due to his specific physiology. Id. at 15-16.
Petitioner compares the instant case to 8 prior cases in which damages were
decided by the undersigned. Id. at 17-18. Specifically, petitioner cites: Dhanoa v. Sec’y
Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1,
2018) (awarding $94,900.99 for pain and suffering), Cooper v. Sec’y Health & Human
Servs., No. 16-1387, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 to a petitioner who experienced eight months of severe or significant pain,
and over two years ongoing difficulties), and Young v. Sec’y Health & Human Servs.,
5 Petitioner’s counsel failed to provide citations to the record for support of these points.
7

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 8 of 17
No. 15-1241, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4, 2019) (awarding $100,000
in pain and suffering to a petitioner whose severe symptoms lasted approximately six
months and a course of treatment that included 50 sessions of physical therapy). Id.
Respondent argues that petitioner should be awarded $40,000.00 in
compensation for pain and suffering. Resp. Br. at 5. Respondent asserts that
petitioner’s SIRVA was not very severe, and his age and pre-existing health issues
contributed significantly to his claims of pain and suffering. Resp. Brief at 5.
Respondent further notes that petitioner did not seek treatment for several months prior
to his vaccination, and that his course of treatment was very conservative, consisting of
taking Aleve, and attending two rounds of physical therapy over multiple years with no
invasive procedures. Id. at 6-7.
Respondent argues that Dhanoa, Cooper, and Young are distinguishable as they
involved injuries of greater severity and/or duration and provided more evidence that the
SIRVAs negatively impacted the respective petitioner’s ability to participate in activities
they regularly enjoyed. Id. at 9. Respondent also asserts that Knauss v. Sec’y Health &
Human Servs.is instructive here. No. 16-1372V, 2018 WL 3432906 at *7 (Fed. Cl.
Spec. Mstr. May 23, 2018). In that case, petitioner was awarded $60,000 for pain and
suffering following a SIRVA wherein petitioner sought treatment three months after a
vaccination, underwent 15 physical therapy sessions, received a steroid injection, and
ultimately reported a 94% recovery with a pain level at 1.5. Id. at 2-4.
Petitioner also requests reimbursement of $1,901.80 in past medical expenses
including mileage for his travel to and from medical visits, payment for medical
treatment, $ 86.70 for over-the-counter medications (Aleve), and $1,434.56 for snow
removal. Pet. Br. at 11-12. Petitioner does not have documentation for many of these
expenses, as he asserts he paid for them in cash. Id. at 12 n.4. Petitioner also argues
he will incur $1,200.00 in future unreimbursed expenses related to his SIRVA,
specifically a “needle tenotomy or platelet-rich plasma injection” suggested by Dr.
Bodor, petitioner’s expert. Id. at 13. Respondent argues petitioner has not provided
substantiating documentation for the alleged payments for Aleve and snow removal,
and therefore petitioner is only entitled to $380.54 for past mileage and copay
expenses. Resp. Br. at 10. Respondent also objects to petitioner’s claim of future
medical expenses as merely speculative, and therefore are not compensable. Id. at 10.
IV. Discussion
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.” § 15(a)(4). Additionally, 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
8

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 9 of 17
to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. Sec’y Health & Human
Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
Medical records are the most reliable evidence regarding a petitioner’s medical
condition and the effect it has on his daily life. Shapiro v. Sec’y Health & Human Servs.,
101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt that the decisional law in the
vaccine area favors medical records created contemporaneously with the events they
describe over subsequent recollections.”).
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. Sec’y Health & Human Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y Health & Human Servs., No. 93-172V, 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.6 I.D., 2013 WL 2448125, at *9; McAllister v. Sec’y
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). Further, when an amount is awarded for “projected”—i.e., future—“pain and
suffering,” such amount must be adjusted to its “net present value.” Childers v. Sec’y
Health & Human Servs., No. 96-194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mst. Mar.
5, 1999) (citing Youngblood v. Sec’y Health & Human Servs., 32 F.3d 552
(Fed.Cir.1994)).
The undersigned may also look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering. Jane Doe
34 v. Sec’y 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, the undersigned also may rely on her own
experience adjudicating similar claims.7 Hodges v. Sec’y Health & Human Servs., 9
F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters
would use their accumulated expertise in the field of vaccine injuries to judge the merits
of individual claims). Importantly, however, it must also be stressed that pain and
suffering is not determined based on a continuum. Graves v. Sec’y Health & Human
6 In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times
petitioner was a competent adult with no impairments that would impact his awareness of his injury.
Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s
injury.
7 From July 2014 until September 2015 the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, which include the majority of SIRVA claims, have remained on the
undersigned’s docket.
9

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 10 of 17
Servs., 109 Fed. Cl. 579 (2013). Instead, it is assessed 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.
A. History of SIRVA Settlement and Proffer8
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2019, 1,187 SIRVA cases have informally resolved9 within the Special
Processing Unit since its inception in July of 2014. Of those cases, 706 resolved via the
government’s proffer on award of compensation, following a prior ruling that petitioner is
entitled to compensation.10 Additionally, 462 SPU SIRVA cases resolved via stipulated
agreement of the parties without a prior ruling on entitlement.
Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $75,325.00 to $123,116.00.11 The median award is $95,470.95.
Formerly, these awards were presented by the parties as a total agreed upon dollar
figure without separately listed amounts for expenses, lost wages, or pain and suffering.
Since late 2017, the government’s proffer has included subtotals for each type of
compensation awarded.
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $95,000.00.12 The median award is $70,000.00. In most instances,
the parties continue to present the stipulated award as a total agreed upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering.
Unlike the proffered awards, which purportedly represent full compensation for all of
8 Prior decisions awarding damages, including those resolved by settlement or proffer, are made public
and can be searched on the U.S. Court of Federal Claims website by keyword and/or by special master.
On the court’s main page, click on “Opinions/Orders” to access the database. All figures included in this
order are derived from a review of the decisions awarding damages within the SPU. All decisions
reviewed are, or will be, available publicly. All figures and calculations cited are approximate.
9 Additionally, 36 claims alleging SIRVA have been dismissed within the SPU.
10 Additionally, there have been 19 prior cases in which petitioner was found to be entitled to
compensation, but where damages were resolved via a stipulated agreement by the parties rather than
government proffer.
11 Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 19 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $115,772.83. For these awards, the first and third quartiles range from
$90,000.00 to $160,502.39.
12 Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
10

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 11 of 17
petitioner’s damages, stipulated awards also typically represent some degree of
litigative risk negotiated by the parties.
B. Prior Decisions Addressing SIRVA Damages
In addition to the extensive history of informal resolution, the undersigned has
also issued 19 reasoned decisions as of the end of May of 2019 addressing the
appropriate amount of compensation in prior SIRVA cases within the SPU.13
i. Below-median awards limited to past pain and suffering
In eleven prior SPU cases, the undersigned has awarded compensation for pain
and suffering limited to compensation for actual or past pain and suffering that has
fallen below the amount of the median proffer discussed above. These awards ranged
from $60,000.00 to $91,163.89.14 These cases have all included injuries with a “good”
prognosis, albeit in some instances with some residual pain. All of these cases had
only mild to moderate limitations in range of motion and MRI imaging likewise showed
only evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema.
The duration of injury ranged from six to 29 months and, on average, these petitioners
experienced approximately 14 months of pain.
13 An additional case, Young v. Sec’y of Health & Human Servs., No. 15-1241V, cited by petitioner, was
removed from the SPU due to the protracted nature of the damages phase of that case. In that case the
undersigned awarded $100,000.00 in compensation for past pain and suffering and $2,293.15 for past
unreimbursable expenses. Young, 2019 WL 664495 (Fed. Cl. Spec. Mstr. Jan. 22, 2019). A separate
reasoned ruling addressed the amount awarded. Young, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4,
2019).
14 These cases are: Bruegging, 2019 WL 2620957 (awarding $90,000.00 for actual pain and suffering and
$1,163.89 for actual unreimbursable expenses); Pruett v. Sec’y of Health & Human Servs., No. 17-0561V,
2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awarding $75,000.00 for actual pain and
suffering and $944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health & Human Servs.,
No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding $75,000.00 for actual
pain and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-0399V, 2019 WL 2521540 (Fed.
Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and $1,027.83 for actual
unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs., No. 18-0490V, 2019 WL 2462953
(Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering); Attig v. Sec’y of
Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19, 2019)
(awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct.
18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical
expenses); Kim, 2018 WL 3991022 (awarding $75,000.00 for pain and suffering and $520.00 in
unreimbursable medical expenses); Knauss, 2018 WL 3432906 (awarding $60,000.00 for pain and
suffering and $170.00 in unreimbursable medical expenses); Marino, 2018 WL 2224736 (awarding
$75,000.00 for pain and suffering and $88.88 in unreimbursable medical expenses); Desrosiers, 2017 WL
5507804 (awarding $85,000.00 for pain and suffering and $336.20 in past unreimbursable medical
expenses).
11

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 12 of 17
Significant pain was reported in these cases for up to eight months. However, in
approximately half of the cases, these petitioners subjectively rated their pain as six or
below on a ten-point scale. Petitioners who reported pain in the upper end of the ten-
point scale generally suffered pain at this level for three months or less. Approximately
one-half were administered one to two cortisone injections. Most of these petitioners
pursued physical therapy for two months or less and none had any surgery. The
petitioners in Weber and Garrett attended PT for five and four months respectively, but
most of the PT in Weber was focused on conditions unrelated to his SIRVA. Several of
these cases (Knauss, Marino, Kim, and Dirksen) included a delay in seeking treatment.
These delays ranged from about 42 days in Kim to over six months in Marino.
ii. Above-median awards limited to past pain and suffering
Additionally, in five prior SPU cases, the undersigned has awarded
compensation limited to past pain and suffering falling above the median proffered
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00.15 Like
those in the preceding group, prognosis was “good.” However, as compared to those
petitioners receiving a below-median award, these cases were characterized either by a
longer duration of injury or by the need for surgical repair. Four out of five underwent
some form of shoulder surgery while the fifth (Cooper) experienced two full years of
pain and suffering, eight months of which were considered significant, while seeking
extended conservative treatment. On the whole, MRI imaging in these cases also
showed more significant findings. In four out of five cases, MRI imaging showed
possible evidence of partial tearing.16 No MRI study was performed in the Cooper case.
15 These cases are: Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl.
Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for pain and suffering and $4,931.06 in unreimbursable
medical expenses); Knudson v. Sec’y of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed.
Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $305.07 in
unreimbursable medical expenses); Cooper, 2018 WL 6288181 (awarding $110,000.00 for pain and
suffering and $3,642.33 in unreimbursable medical expenses); Dobbins v. Sec’y of Health & Human
Servs., No. 16-0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for
pain and suffering and $3,143.80 in unreimbursable medical expenses); Collado v. Sec’y of Health &
Human Servs., No. 17-0225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding
$120,000.00 for pain and suffering and $772.53 in unreimbursable medical expenses).
16 In Reed, MRI showed edema in the infraspinatus tendon of the right shoulder with a possible tendon
tear and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness
partial tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial
thickness tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and
moderate sized joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a
partial bursal surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild
longitudinally oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and
infraspinatus tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the
posterior-superior-lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site,
and minimal subacromial-subdeltoid bursitis.
12

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 13 of 17
During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately. Time to first treatment ranged from five days to 43 days. Duration of
physical therapy ranged from one to 24 months and three out of the five had cortisone
injections.
C. Severity and Duration of Petitioner’s SIRVA
The undersigned finds that petitioner experienced a mild to moderate SIRVA and
only sought relatively infrequent conservative treatment, however he experienced pain
in both his shoulders for an extensive period.
Petitioner was administered the flu vaccine on October 20, 2014. Ex. 1 at 2.
Petitioner explained that the administration of the vaccine was very painful, and within
days it intensified. Ex. 21 at 2. Petitioner first sought treatment for the pain on January
14, 2015. Ex. 11 at 11. Thereafter, petitioner reported pain for approximately four
years, first primarily in his left shoulder but later in both shoulders. Petitioner’s pain was
first reported as severe, for example in January of 2015 he reported pain at an 8 out of
10 during physical therapy. Ex. 15 at 10. Petitioner also reported his pain as “constant”
on February 9, 2015. Ex. 2 at 1. Thereafter, his pain improved. In March of 2016
petitioner reported shoulder pain that was “very frequent at first, now much less
frequent”. Ex. 18 at 1-3. On August 18, 2016, petitioner reported his pain was less
frequent and “may occur once a month.” Ex. 26 at 3. However, while improved,
petitioner’s complaints of pain continued until at least July of 2018. For example, on
June 13, 2018, petitioner reported bilateral shoulder pain that could go as high as 7/10
at least in his right shoulder. Ex. 27 at 23. Further, petitioner repeatedly stated that
sleeping on his shoulder still caused pain. See Ex. 11 at 13 (reporting difficulty sleeping
due to pain on January 23, 2015); Ex. 27 at 1 (reporting difficulty sleeping due to pain
on July 10, 2018).
The testing and evaluations indicate that petitioner’s injury was not as severe as
other SIRVAs seen in this program. Petitioner’s initial MRI in January of 2015 showed
tendinosis and mild edema in the subdeltoid bursa. Ex. 11 at 2. Further, petitioner was
noted as having full strength and range of motion in both shoulders for extensive
periods of time. See Ex. 2 at 1 (noting full range of motion and strength in both his
shoulders on February 9, 2015); Ex. 12 at 6 (noting petitioner exhibited good range of
motion on March 2, 2015). However, both his strength and range of motion was noted
as moderately reduced in June of 2018. Ex. 27 at 23.
Petitioner’s reporting of pain, while significant at first, also declined significantly
with time. Petitioner first reported pain of 8/10 on January 29, 2015. Ex. 15 at 20.
Thereafter, he described his pain as moderate, dull, and “much less frequent” on March
1, 2016. Ex. 18 at 1-3. On August 18, 2016, petitioner again described his pain as less
13

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 14 of 17
frequent, stating his pain “may occur once a month.” Ex. 23 at 4. Later, on June 4,
2018, petitioner reported his pain as 3 out of 10 in both shoulders. Ex. 26 at 1.17
Petitioner’s treatments were also fairly conservative. Petitioner was first
recommended to treat with only ice, Aleve, and, physical therapy. Ex. 12 at 5 (Dr.
Moses recommending treatment was ice and Aleve on May 7, 2015). Later, petitioner
attended 16 physical therapy sessions separated by three years, eight between January
and March of 2015, and eight between June and July of 2018. Ex. 27 at 1-21.18
Moreover, invasive therapies such as corticosteroid injections were not administered,
and even declined on at least one occasion. See Ex. 2 at 1-2 (February 9, 2015 record
indicating petitioner chose to hold off on a corticosteroid injection at that time); Ex. 26 at
3 (September 1, 2017 record stating “[w]e will consider a shot if it is not getting better
over the next 3-6 weeks.”).
Petitioner also did not seek treatment for significant periods of time, indicating his
shoulder pain was not consistent or severe. For example, petitioner waited nearly three
months after his vaccination to first seek treatment on January 14, 2015. Ex. 11 at 11.19
Further, petitioner did not seek treatment for shoulder pain between May 7, 2015 and
March 1, 2016, an eleven-month gap. See Ex. 12 at 5 (assessed with possible
epicondylitis and left rotator cuff tendinitis on May 7, 2015) and Ex. 18 at 1-3 (reporting
a history of shoulder pain to Dr. Levinson on March 1, 2016). Petitioner next reported
pain over six months later, on August 18, 2016, again reporting pain was less frequent
and “may occur once a month.” Id. at 4. Petitioner next reported shoulder pain over a
year later, when he sought care for right shoulder pain on September 1, 2017. Ex. 26 at
3. Following that, petitioner did not report shoulder pain until June 4, 2018, nine months
later. Ex. 26 at 1.
As noted above, the undersigned has awarded compensation for pain and
suffering above the median proffered SIRVA award in cases characterized either by a
longer duration of injury or by the need for surgical repair. On the whole, the MRI
imaging in these cases showed more significant findings. Further, petitioner did not
require surgery and instead underwent a more conservative course of treatment.
However, petitioner in this case suffered from bilateral shoulder pain to a varying degree
for nearly four years.
17 Petitioner did report a pain level of 10/10 in his right shoulder on September 1, 2017, however a lack of
follow-up indicated his pain levels quickly receded. Ex. 26 at 3 (September 1, 2017 record stating “[w]e
will consider a shot if [petitioner’s pain] is not getting better over the next 3-6 weeks.”).
18 Petitioner asserts that he attended 24 physical therapy sessions, but the records show 6 of those were
for unrelated lower back pain. Ex. 27 at 29-61.
19 Petitioner states in his affidavit that he contacted his primary care physician in December of 2014
regarding pain following his flu vaccination, however there is no record of this communication. See Ex.
21 at 2.
14

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 15 of 17
i. Comparison to Other SIRVA Awards
The facts in petitioner’s case are most similar to those found in Kim, but the total
length of time for his SIRVA, and his bilateral shoulder pain, are both significant
differences. The Kim petitioner did seek medical care sooner, 42 days after vaccination
as opposed to almost three months in this case. The undersigned finds that the
petitioner in this case should be awarded more for his pain and suffering than the
amount awarded in Kim, $75,000.00.
Petitioner’s lengthy pain and suffering, but conservative course of treatment, is
similar to Bruegging and Dhanoa, cases in which the undersigned awarded $85,000.00-
$90,000.00. In both of these cases, as well as the instant case, petitioner showed
significant pain when initially treated. Subsequently, petitioners underwent fairly
conservative treatment: in Bruegging, petitioner pursued mainly physical therapy but
also a cortisone injection; in Dhanoa, petitioner underwent two cortisone injections and
an extended course of physical therapy. Further, petitioners experienced pain for a
significant period to time, 8-10 months in Bruegging,20 and 11-36 months in Dhanoa.
Looking at the totality of circumstances, including the severity of petitioner’s
injury, the length of his treatment (including significant gaps), and the progression of his
pain to encompass both shoulders, the undersigned finds $80,000.00 to be an
appropriate amount for petitioner’s past pain and suffering.
D. Past and Future Unreimbursable Expenses
Petitioner submitted documentation regarding $1,901.80 unreimbursed expenses
as Ex. 28, with costs including mileage for his travel to and from medical visits, co-pays,
over-the-counter medication (Aleve), and snow removal. Pet. Br. at 12. Respondent
does not object to the $380.54 for mileage and co-pays but asserts the remaining
$1,1521.26 for Aleve and snow removal is not sufficiently documented. Resp. Br. at 9-
10.
In support of petitioner’s claim for over-the-counter medication and snow
removal, petitioner was unable to submit actual receipts because he paid for those
items in cash. Pet. Br. at 12 n.4. Petitioner submitted a price quote for a 220mg, 270
caplet bottle of Aleve caplets of $17.34, and asserted his expense include $17.34 per
year since vaccination for Aleve, totaling $86.70. Ex. 28 at 20. Petitioner also asserts
that prior to his vaccine-injury, he shoveled his driveway and front walk. However, since
his injury he has paid approximately $1,434.56 in cash for snow removal and submitted
a snow removal cost and price report for his area that listed a variety of snow removal
cost data for 2016. Ex. 28 at 21. It is petitioner’s burden to adequately demonstrate
20 However, the petitioner in Bruegging experienced pain at a level of eight to ten during the majority of
this time. Id. at *1-3.
15

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 16 of 17
entitlement to these amounts. Without receipts, the amounts of these costs are not only
speculative, but are unsupported by reliable documentation.
Petitioner also seeks $1,200.00 for future unreimbursed expenses related to his
SIRVA, specifically a needle tenotomy or platelet-rich plasma injection that petitioner’s
expert, Dr. Bodor, described as “not covered by insurance but on the order of $1200”.
Pet. Br. at 13. The procedure is one of several recommend by Dr. Bodor, that also
included corticosteroid injections, subacromial decompression surgery, and physical
therapy. Id. However, the procedure was not recommended by any of petitioner’s
treating physicians, and at this time it remains speculative what, if any, additional
treatment petitioner requires. Further, the actual amount this procedure may cost at the
as-yet-unknown later date when petitioner may elect to have it performed is also
speculative.
The undersigned has reviewed all of petitioner’s submitted documents and
concludes that petitioner is entitled to compensation for unreimbursable expenses in the
amount of $380.54. The undersigned is not persuaded by the remainder of petitioner’s
expense claims.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, the undersigned finds that $80,000.00 represents a fair and
appropriate amount of compensation for petitioner’s actual pain and suffering.21
The undersigned also finds petitioner is entitled to $380.54 for past unreimbursed
expenses.
Based on the record as a whole and arguments of the parties, the undersigned
awards compensation in the amount of $80,380.54 representing $80,000.00 in
compensation for actual pain and suffering and $380.54 in compensation for past
unreimbursable expenses, in the form of a check payable to petitioner, Alceo
Lucarelli.
The clerk of the court is directed to enter judgment in accordance with this
decision.22
21 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 & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health
& Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
22 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
16

Case 1:16-vv-01712-UNJ Document 62 Filed 11/12/19 Page 17 of 17
IT IS SO ORDERED.
/s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
17