VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01028
Package ID: USCOURTS-cofc-1_17-vv-01028
Petitioner: Barbara Sakovits
Filed: 2017-07-31
Decided: 2020-07-06
Vaccine: influenza
Vaccination date: 2014-10-24
Condition: left shoulder injuries
Outcome: compensated
Award amount USD: 69707

AI-assisted case summary:
Barbara Sakovits filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered left shoulder injuries caused by an influenza vaccination she received on October 24, 2014. The case was assigned to the Special Processing Unit. Initially, Respondent opposed compensation, arguing that Petitioner had not established that the onset of her left shoulder pain occurred within 48 hours of vaccination. However, a fact ruling found the onset of Petitioner’s pain occurred immediately upon vaccination. Respondent subsequently conceded that Petitioner suffered Shoulder Injury Related to Vaccine Administration (SIRVA) and satisfied the legal prerequisites for compensation. The court found Petitioner entitled to compensation. The parties then attempted to resolve damages, eventually proceeding to a hearing. Petitioner requested $90,000.00 for past pain and suffering, $5,000.00 for future pain and suffering, and $1,707.72 for past medical expenses. Respondent proposed $47,500.00 for past pain and suffering and no future pain and suffering, but agreed to the $1,707.72 for past medical expenses. The court awarded Barbara Sakovits a total of $69,707.72, comprising $68,000.00 for past pain and suffering and $1,707.72 for past unreimbursed expenses. No award was made for future pain and suffering.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01028-0
Date issued/filed: 2019-10-29
Pages: 5
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/09/2019) regarding 38 Findings of Fact & Conclusions of Law, Signed by Special Master Nora Beth Dorsey. (ypb) Service on parties made.
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Case 1:17-vv-01028-UNJ Document 46 Filed 10/29/19 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1028V
Filed: August 9, 2019
UNPUBLISHED
BARBARA SAKOVITS,
Petitioner, Special Processing Unit (SPU);
v. Findings of Fact; Onset; Influenza
(Flu) Vaccine; Shoulder Injury
SECRETARY OF HEALTH AND Related to Vaccine Administration
HUMAN SERVICES, (SIRVA)
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT1
Dorsey, Chief Special Master:
On July 31, 2017, 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 she suffered left shoulder injuries caused by the influenza
vaccination she received on October 24, 2014. Petition at ¶¶ 2, 13. 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).

Case 1:17-vv-01028-UNJ Document 46 Filed 10/29/19 Page 2 of 5
For the reasons discussed below, the undersigned finds the onset of petitioner’s
shoulder injury related to vaccine administration (“SIRVA”) occurred within 48 hours of
vaccination. Specifically, petitioner suffered pain immediately upon vaccination.
I. Relevant Procedural History
Following the September 26, 2017 initial status conference, the undersigned
ordered petitioner to file a better vaccine record; any outstanding medical records,
particularly those from later visits to her primary care provider (“PCP”); and a detailed
affidavit addressing the onset of her pain, delay in seeking treatment, and lack of later
PCP records. (ECF No. 8). Over the subsequent seven months, petitioner filed these
documents.3
On June 19, 2018, respondent filed a status report indicating he intended to
defend this case. (ECF No. 20). On July 20, 2018, he filed his Rule 4(c) report setting
forth his objections. (ECF No. 22). Specifically, respondent argues that petitioner has
not met the criteria for the Table injury of shoulder injury related to vaccine
administration (“SIRVA”) because she has failed to establish that her symptoms began
within 48 hours after vaccination (id. at 3) and “has not provided evidence that satisfies
her burden of proof under Althen[4] (id. at 5).” Petitioner was ordered to file additional
evidence and a motion for a finding of fact regarding the issue of onset. (ECF No. 23).
A few months thereafter, petitioner filed her motion for a finding of fact. Motion
for Fact Ruling in Regard to the Onset of Petitioner’s Symptoms (“Pet. Motion”), Oct. 25,
2018 (ECF No. 27). On November 27, 2018, respondent filed a status report indicating
that he wished to engage in settlement discussions. (ECF No. 29). After engaging in
settlement discussions, on March 28, 2019, the parties informed the undersigned they
had reached an impasse in their settlement discussions. (ECF No. 35). Two months
later, respondent filed his response to petitioner’s motion for a factual ruling.
Respondent’s Response to Petitioner’s Motion for Onset Ruling (“Res. Response”), filed
May 28, 2019 (ECF No. 29). Petitioner filed no reply.
II. Issue
At issue is whether petitioner’s first symptom or manifestation of onset after
vaccine administration was within 48 hours as set forth in the Vaccine Injury Table. 42
C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination). Additionally, the Qualifications
and aids to interpretation (“QAI”) for a Table SIRVA requires that a petitioner’s pain
occur within this same time frame, 48 hours. 42 C.F.R. § 100.3(c)(10).
3 See Exhibit 7, filed Oct. 3, 2017 (ECF No. 8) (better vaccine record); Exhibit 8, filed Oct. 23, 2017 (ECF
No. 9) (detailed affidavit); Exhibit 9, filed Apr. 20, 2018 (ECF No. 18) (updated PCP records).
4 Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005) (setting forth the three-
pronged test to establish causation in vaccine cases).
2

Case 1:17-vv-01028-UNJ Document 46 Filed 10/29/19 Page 3 of 5
III. Authority
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
§ 11(c)(1). A special master may find that the first symptom or manifestation of onset of
an injury occurred “within the time period described in the Vaccine Injury Table even
though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.” Vaccine Act § 13(b)(2).
“Such a finding may be made only upon demonstration by a preponderance of the
evidence that the onset [of the injury] . . . did in fact occur within the time period
described in the Vaccine Injury Table.” Id.
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record.
Vaccine Act § 13(b)(1). “Medical records, in general, warrant consideration as
trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Curcuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
IV. Finding of Fact
The undersigned makes the finding after a complete review of the record to
include all medical records, affidavits, testimony, expert reports, respondent’s Rule 4
report, and additional evidence filed. Specifically, the undersigned bases the finding on
the following evidence:
• On October 24, 2014, petitioner received an influenza vaccination in her
left deltoid. Exhibit 7 at 1.
• On February 10, 2015, petitioner visited her PCP, Dr. Edward Prin,
complaining of pain in her left shoulder since receiving the influenza
vaccination four months ago. Exhibit 2 at 9. Dr. Prin assessed petitioner
as suffering from probable impingement and diagnosed rotator cuff
syndrome (NOS).5 Exhibit 2 at 10.
• Petitioner’s medical records from her PCP from three years prior to
vaccination show that she sought medical care on the following four
occasions:
o October 4, 2011, for a sore throat (id. at 21);
5 NOS is a common medical abbreviation for “not otherwise specified.” MEDICAL ABBREVIATIONS: 32,000
CONVENIENCES AT THE EXPENSE OF COMMUNICATION AND SAFETY (15th ed. 2011) at 230.
3

Case 1:17-vv-01028-UNJ Document 46 Filed 10/29/19 Page 4 of 5
o November 22, 2013, for an annual physical (id. at 18);
o March 11, 2014, for a cat scratch (id. at 15); and
o October 9, 2014, for shortness of breath (id. at 12).
These medical records provide evidence showing petitioner rarely sought
medical treatment from her PCP.
• On February 13, 2015, petitioner was seen, after a referral from Dr. Prin,
by an orthopedist, Dr. Oscar Vazquez, at Active Orthopedics and Sports
Medicine, LLC. Exhibit 3 at 21. Indicating that her left shoulder was still
bothering her after four months, petitioner expressed her concern that her
pain was due to the influenza vaccination she received in October. Id.
• On June 8, 2015, petitioner underwent a left shoulder MRI. Id. at 25. The
medical record containing the results of that MRI indicate petitioner was
suffering “[p]rogressive shoulder pain following flu vaccination 11/2014.”
Id.
• It appears that petitioner attended physical therapy (“PT”) from May 11
through June 11, 2015, without significant progress. Id. at 40. She
underwent an evaluation for a second period of PT on July 21, 2015. Id.
at 42. At that visit, she reported an injury date of “10/2014” which was
caused by the flu shot she received. Id. Although petitioner described her
onset as gradual, she indicated she had experienced “pain and limited
mobility,” since that injection. Id.
• When petitioner sought a second opinion from another orthopedist, Dr.
Stephen Silver, on September 8, 2015, she indicated her pain began
immediately after vaccination. Exhibit 4 at 1. She added “that she never
had a problem with [her] left shoulder until 10 months ago in 10/2014
when she got a flu shot.” Id. While stating that she initially had pain but
good movement, petitioner indicated that her shoulder “progressively got
stiffer and froze up on her.” Id.
• In her two affidavits, petitioner indicates that her pain began the same day,
immediately upon vaccination. Exhibit 8, filed Oct. 23, 2017, at ¶ 3 (ECF
No. 10-1); Exhibit 10, Oct. 28, 2018, at ¶ 3 (ECF No. 25-2). In his affidavit,
her husband indicates petitioner complained of her pain and swelling on
the evening of vaccination. Exhibit 11, filed Oct. 28, 2018, at ¶ 4 (ECF No.
25-3).
The above medical entries show that petitioner consistently connected her left
shoulder injury to the influenza vaccination she had received. Despite one notation
stating petitioner received this vaccination in November 2014, she reported a date of
vaccination in October 2014 on all other occasions. When providing the duration of her
injury and/or pain, petitioner gave a time period which coincides with the correct date of
vaccination. Regarding the onset of her pain, petitioner described it as occurring the
same day as vaccination, often indicating that it was upon vaccination.
4

Case 1:17-vv-01028-UNJ Document 46 Filed 10/29/19 Page 5 of 5
As such, the undersigned finds preponderant evidence that petitioner’s
manifestation of onset after vaccine administration occurred within 48 hours.
V. Scheduling Order
Given the undersigned’s finding of fact regarding the onset of petitioner’s pain,
the parties should resume their settlement discussions. Moreover, respondent should
evaluate his current position regarding the merits of petitioner’s case.
The parties shall file a joint status report indicating their preferred next
step(s) in the case by no than Tuesday, September 10, 2019.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5

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DOCUMENT 2: USCOURTS-cofc-1_17-vv-01028-1
Date issued/filed: 2019-12-20
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/17/2019) regarding 44 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (ypb) Service on parties made.
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Case 1:17-vv-01028-UNJ Document 49 Filed 12/20/19 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1028V
Filed: October 17, 2019
UNPUBLISHED
BARBARA SAKOVITS,
Special Processing Unit (SPU);
Petitioner, Ruling on Entitlement; Table Injury;
v. Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT1
Corcoran, Chief Special Master:
On July 31, 2017, 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 she suffered left shoulder injuries caused by the influenza
vaccination she received on October 24, 2014. Petition at ¶¶ 2, 13. The case was
assigned to the Special Processing Unit (“SPU”).
1 I intend 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, I agree that the identified
material fits within this definition, I will redact such material from public access. Because this unpublished
decision contains a reasoned explanation for the action in this case, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. §
3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
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 1:17-vv-01028-UNJ Document 49 Filed 12/20/19 Page 2 of 2
On August 9, 2019, Special Master Dorsey (to whom this case was previously
assigned)3 issued a fact ruling, finding there is preponderant evidence to establish that
petitioner’s manifestation of onset after vaccine administration occurred within 48 hours.
Fact Ruling at 5 (ECF No. 38).
Respondent has filed an amended Rule 4 report indicating that “while preserving
his right to appeal the Chief Special Master’s finding . . . [he] has concluded that
petitioner suffered SIRVA related to her October 24, 2014 vaccination.” Rule 4 Report,
filed Oct. 9, 2019, at 3 (ECF No. 43). Respondent adds that “based on the record as it
now stands and subject to his right to appeal the Findings of Fact, respondent does not
dispute that petitioner has satisfied all legal prerequisites for compensation under the
Act.” Id. at 3-4.
In view of respondent’s position and the evidence of record, the
undersigned finds that petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 On October 1, 2019, former Chief Special Master Dorsey stepped down as Chief Special Master but
continues to adjudicate vaccine cases as Special Master Dorsey. The majority of SPU cases were
reassigned to Chief Special Master Corcoran.

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DOCUMENT 3: USCOURTS-cofc-1_17-vv-01028-2
Date issued/filed: 2020-07-06
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 06/04/2020) regarding 62 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1028V
UNPUBLISHED
BARBARA SAKOVITS, Chief Special Master Corcoran
Petitioner, Filed: June 4, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On July 31, 2017, Barbara Sakovits filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered left shoulder injuries caused by the
influenza vaccination she received on October 24, 2014. Petition at ¶¶ 2, 13. The case
was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $69,707.72, representing $68,000.00 for past pain and
suffering, and $1,707.72 for past unreimbursed expenses. Petitioner is not, however,
entitled to compensation for future pain and suffering.
1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the 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, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 2 of 7
I. Relevant Procedural History
Initially, Respondent opposed compensation in this case, arguing that Petitioner
had not established that the onset of her left shoulder pain occurred within 48 hours of
vaccination. ECF Nos. 20, 22. On August 9, 2019, former Chief Special Master Dorsey
(to whom the case was assigned at the time)3 issued a fact ruling finding the onset of
Petitioner’s pain occurred immediately upon vaccination. ECF No. 38. Approximately two
months later, she issued a ruling on entitlement favoring Petitioner. ECF No. 44.
For approximately four months, the parties attempted to informally resolve the
issue of damages. See, e.g., Status Report filed Nov. 19, 2019 (ECF No. 47). On February
3, 2020, they informed me they had reached an impasse and requested to file written
briefs regarding the appropriate amount of damages in this case. ECF No. 52. A few
months later, I scheduled this matter for an expedited hearing and ruling based upon all
evidence filed to date and the parties’ briefing. Order issued Apr. 8, 2020 (ECF No. 54).
That hearing was held on May 29, 2020.
In her brief filed on March 6, 2020, Petitioner requests that I award $90,000.00 for
her past pain and suffering, $5,000.00 for her future pain and suffering,4 and $1,707.72
for her past medical expenses. Petitioner’s Brief in Support of Damages (“Brief”) at 1, 9
(ECF No. 53). In reaction, Respondent agrees Petitioner is entitled to $1,707.72 for her
past medical expenses, but proposes that I award only $47,500.00 for her past pain and
suffering, and no future pain and suffering. Respondent’s Brief on Damages dated May
13, 2020 at 2, 2 n.2, and 9 (ECF No. 60). Petitioner replied on May 20, 2020 (ECF No.
61), and the hearing went forward as scheduled.5
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
3 I was appointed Chief Special Master on October 1, 2019. This case was reassigned to me that same
day.
4 Using a net discount rate of one percent, Petitioner reduces the amount she seeks for her future pain and
suffering to a net present value of $4,950.00. Id. at 9; see § 15(f)(4)(A) (requiring this reduction).
5 The transcript from the hearing has yet to be filed, but is incorporated by reference herein.
2

Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 3 of 7
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.6 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (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).
III. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
petitioner’s injury.
When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
6 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
3

Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 4 of 7
documents and at the expedited hearing held on May 29, 2020. I consider prior awards
for pain and suffering in both SPU and non-SPU SIRVA cases and rely upon my
experience adjudicating these cases.7 However, I base my determination on the
circumstances of this case.
The evidence herein overall establishes that Petitioner’s injury was on the mild end
in total severity. Petitioner first sought treatment for her left shoulder pain from her primary
care provider (“PCP”), three and one-half months after vaccination, on February 10, 2015.
Exhibit (“Ex.”) 2 at 9-11. Petitioner’s PCP assessed her as having “probably
impingement,” making it logical to conclude that she was experiencing left shoulder pain
and some limitation in her range of motion (“ROM”) at this time. Id. at 10. At an orthopedist
visit a few days later, Petitioner described pain at night associated with overhead motion
since vaccination four months earlier, plus a reduced ROM. Ex. 3 at 21. The orthopedist
diagnosed Petitioner with adhesive capsulitis, administered a cortisone injection, and
prescribed physical therapy (“PT”). Ex. 3 at 22.
Over the next three months to the end of May 2015, Petitioner attended 23 PT
sessions. Ex. 5 at 35-99. Although at the outset of these sessions, she rated the level of
her pain as seven out of ten (id. at 95), it decreased over time and was inconsistent in
severity. Petitioner otherwise continued to make steady but slow progress in PT, with
improvement in ROM over time. Ex. 3 at 16-19. She obtained an MRI in June 2015, at
which time her ROM had improved further, although she still struggled with pain and
limitations in her functionality. Ex. 3 at 11-13 (record from June 15, 2015 visit), 25 (results
of June 8, 2015 MRI).
Petitioner attended nine more PT session from late July to late August 2015, with
slow progress but still pain by the end of this time period. Ex. 5 at 4-34. She sought
additional treatment from a different orthopedist on September 8, 2015, and considered
surgical interventions or additional cortisone injections, but declined to so act. Ex. 4 at 1-
4. And in her most recent affidavit, Petitioner asserts her condition improved from severe
to moderate during 2015, although lingering, intermittent pain remains a concern. Ex. 12
at ¶¶ 5, 6. Managing her condition has been compounded by Petitioner’s experiences
treating a sick child. Id. at ¶ 7; Ex. 13 at ¶ 4.
7 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a
brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of
Health & Human Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v.
Sec’y of Health & Human Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020);
Smallwood v. Sec’y of Health & Human Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr.
29, 2020).
4

Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 5 of 7
As I informed the parties during the expedited hearing conducted on May 29,
2020,8 the question in this case is not whether Petitioner is entitled to compensation for
her pain and suffering, but rather what amount of compensation is justified, based upon
the facts of the case and considered relevant input. This determination is not an exact
science but more of an art.
While it is tempting to “split the difference” and award an amount halfway between
the amounts proposed by the parties, each petitioner deserves an examination of the
specific facts and circumstances in her or his case. Thus, while amounts ultimately
awarded may end up falling approximately half-way between the proposed amounts, as
is the case here, this result flows from a specific analysis of Ms. Sakovits’s personal
circumstances (as well as the parties’ success in framing a reasonable range for the
award).
The evidence in this case establishes that Petitioner’s injury was a moderate
SIRVA which did not require immediate treatment, surgery, or lengthy subsequent
treatment. Although Petitioner argues that her three and one-half month delay in seeking
treatment is significant only when determining onset, I found it relevant also when
assessing the severity of Petitioner’s SIRVA. Had Petitioner’s initial pain been notably
severe, she would have undoubtedly sought medical care sooner. Similarly, Petitioner’s
lack of subsequent treatment, following her last PT session in late August 2015, illustrates
that her symptoms were not severe enough to cause her to seek medical care.
When determining the appropriate amount of compensation for Petitioner’s pain
and suffering, I also rely upon my expertise in this area and prior pain and suffering
awards in other SIRVA cases. I reject Respondent’s argument, however, that the amounts
awarded in proffered cases are a more accurate gauge of the appropriate amount to be
awarded than reasoned decisions from the court and special masters. A proffer is simply
Respondent’s assessment of the appropriate amount to be awarded, and a special
master’s approval of a settlement at a proffered level does not provide a reasoned
instance, produced by a judicial neutral that can be looked to when evaluating the
damages to be awarded – even if settled cases and proffers provide some evidence of
the kinds of awards received overall in comparable cases.9
8 An official recording of the proceeding was taken by court reporter, and a link to instructions on the court’s
website detailing how to order a certified transcript or audio recording of the proceeding can be found in the
minute entries for this proceeding. Minute Entry, dated May 29, 2020; see also
www.uscfc.uscourts.gov/trans (last visited June 1, 2020).
9 Additionally, during the hearing (and in response to the suggestion by Respondent that perhaps Vaccine
Program SIRVA pain and suffering awards are overall too high when compared to comparable tort awards
obtained in other fora in the United States, I cautioned that awards in SIRVA cases may trend lower as
medical treatment for SIRVA injuries improves. Better treatment means the severity and duration of the
pain and other SIRVA symptoms suffered by future petitioners may be less.
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Overall, I find the circumstances in Petitioner’s case are most like those
experienced by the petitioners in Dagen10 and Capasso,11 in which $65,000.00 and
$75,000.00 were deemed appropriate actual pain and suffering awards. I agree that the
cases cited by Petitioner are also relevant to the determination in this case,12 but those
awards are higher than what is appropriate here given the facts.
Finally, and as I informed the parties at hearing, I do not find that an award for
future pain and suffering is warranted in this case. Although Petitioner requests only a
modest one-time sum of $5,000.00 (Pet. Brief at 5), petitioners with more egregious cases
have received only a lump sum payment for actual pain and suffering, and here no
persuasive case has been made that Petitioner’s likely future suffering justifies any
amounts beyond the sum being awarded for actual/past suffering.
IV. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $68,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering.13 I also find that
Petitioner is entitled to $1,707.72 for her past medical expenses.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $69,707.72, representing $68,000.00 for her actual pain and
suffering and $1,707.72 for her actual unreimburseable expenses in the form of a
check payable to Petitioner. This amount represents compensation for all damages that
would be available under Section 15(a).
10 Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov.
6, 2019).
11 Capasso v. Sec’y Health & Human Servs., No.17-0014V, 2019 WL 5290524 (Fed. Cl. Spec. Mstr. July
10, 2019).
12 In addition to citing to Capasso, Petitioner compared the facts in her case to those in Vinocur, Attig, and
Dhanoa. Vinocur, 2020 WL 1161173 (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 actual pain and suffering); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018
WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering and
$10,000.00 for projected pain and suffering for one year).
13 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)).
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Case 1:17-vv-01028-UNJ Document 68 Filed 07/06/20 Page 7 of 7
The clerk of the court is directed to enter judgment in accordance with this
decision.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
14 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.
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