VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00039
Package ID: USCOURTS-cofc-1_18-vv-00039
Petitioner: Dean Leslie
Filed: 2018-01-08
Decided: 2021-03-04
Vaccine: influenza
Vaccination date: 2016-09-30
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 131321

AI-assisted case summary:
Dean Leslie, an adult physician, received an influenza vaccine on September 30, 2016. Within hours, he experienced pain and limited range of motion in his left shoulder, which he reported to the vaccine administrator and employee health. He was diagnosed with Shoulder Injury Related to Vaccine Administration (SIRVA), a condition listed on the Vaccine Injury Table. Respondent conceded entitlement to compensation. The case proceeded to a damages hearing as the parties could not agree on the total sum. Mr. Leslie submitted medical records, affidavits from himself and his wife, and a medical article co-authored by him detailing his injury and treatment. Respondent argued for a lower award, emphasizing Mr. Leslie's eventual recovery and the fact that he did not require surgery. The court awarded Mr. Leslie $125,000.00 for past pain and suffering and $6,321.86 for unreimbursed out-of-pocket expenses, totaling $131,321.86. The court noted that while Mr. Leslie experienced significant pain and limitations for an extended period, including concerns about bone erosion, his injury was not among the most severe, and he ultimately recovered without surgery.

Theory of causation field:
Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_18-vv-00039-0
Date issued/filed: 2019-04-24
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/06/2019) regarding 30 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00039-UNJ Document 35 Filed 04/24/19 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0039V
Filed: March 6, 2019
UNPUBLISHED
DEAN LESLIE,
Petitioner, Special Processing Unit (SPU);
v. Ruling on Entitlement; Concession;
Table Injury; Influenza (Flu) Vaccine;
SECRETARY OF HEALTH AND Shoulder Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On January 8, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) causally related to the influenza vaccination he received on
September 30, 2016. Petition at ¶¶ 3, 14, 17. Petitioner further alleges that he received
the vaccination in the United States, that he suffered the residual effects of his injury for
more than six months, and that neither he nor any other person has filed a civil action or
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 1:18-vv-00039-UNJ Document 35 Filed 04/24/19 Page 2 of 2
received compensation for his injury alleged as vaccine caused. Id. at ¶¶ 3, 16, 20-21.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On March 4, 2019, respondent filed his Rule 4(c) report in which he concedes
that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
at 1. Specifically, respondent “has determined that petitioner’s medical course is
consistent with a shoulder related to vaccine administration (“SIRVA”) as defined on the
Vaccine Injury Table.” Id. at 5. Respondent further agrees that “based on the record as
it now stands, petitioner has satisfied all legal prerequisites for compensation under the
Act.” Id.
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/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00039-1
Date issued/filed: 2021-03-04
Pages: 16
Docket text: PUBLIC DECISION (Originally filed: 01/28/2021) regarding 77 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 1 of 16
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0039V
UNPUBLISHED
DEAN LESLIE, Chief Special Master Corcoran
Petitioner, Filed: January 28, 2021
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)
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On January 8, 2018, Dean Leslie, M.D. filed a Petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”)
vaccine on September 30, 2016. Petition at ¶¶ 1, 14, 17. The case was assigned to the
Special Processing Unit (“SPU”) of the Office of Special Masters.
Respondent conceded Dr. Leslie’s entitlement to a damages award, but the parties
could not agree on a final total sum, resulting in a damages hearing held earlier this
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 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 2 of 16
month. For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $131,321.86, representing $125,000.00 for his past pain and
suffering, and $6,321.86 for his unreimbursed out-of-pocket expenses.
I. Relevant Procedural History
Because Dr. Leslie is a physician, there are fewer formal medical records filed in
this matter than would be found in other cases. Within a month of the Petition’s filing, he
had filed the affidavit and medical records required by the Vaccine Act. Exhibits 1-8, ECF
Nos. 5, 8, 10; see Section 11 (c). Over the subsequent nine-month period, while awaiting
Respondent’s review, Petitioner filed additional evidence such as the written report of his
injury which he submitted to the vaccine administrator, additional affidavits,
documentation regarding other vaccine injuries, and medical literature. Exhibits 9-16,
ECF Nos. 11, 13, 22.
On November 14, 2018, Respondent indicated he wished to file a Rule 4 Report
but would welcome a demand from Petitioner. ECF No. 23. Petitioner conveyed his
demand to Respondent on January 10, 2019. ECF No 26. Respondent filed his Rule 4
Report on March 4, 2019, conceding entitlement, and I issued a Ruling consistent with
the concession few days thereafter. ECF Nos. 28, 30.
Thereafter, from early March through July 2019, the parties attempted to informally
resolve the issue of damages. See, e.g., Status Report, ECF No. 36. On July 30, 2019,
the parties filed separate status reports indicating they were having difficulty agreeing
upon the amount of Petitioner’s out-of-pocket expenses. ECF Nos. 41-42. Since
Petitioner worked as a radiologist on a contract basis at the facility where he received the
vaccine in question, the facility had an informal agreement with Petitioner to either write-
off or pay many of Petitioner’s costs. ECF No. 49. Due to the informal nature of this
agreement, the parties were having trouble ascertaining which expenses were ultimately
paid by Petitioner. Id. at 2.
On February 28, 2020, Petitioner filed a joint status report on behalf of the parties
stating that they had agreed upon an appropriate amount of compensation for Petitioner’s
out-of-pocket expenses, but no longer agreed upon the amount to be awarded for
Petitioner’s pain and suffering. ECF No. 56. Over the next two months, Petitioner filed
medical literature, including the draft of an article regarding Petitioner’s injury, and his
damages brief. Exhibits 28-30, ECF Nos. 58, 61; Petitioner’s Memorandum of Law
Regarding Damages (“Pet. Brief”), ECF No. 62. In it, Petitioner described the unique
nature of his SIRVA injury and requested a damages hearing so he and his wife could
provide testimony regarding the severity of his symptoms. Pet. Brief at 11-12. Respondent
filed his brief approximately two months later, setting forth his arguments and opposition
2

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 3 of 16
to Petitioner’s request for a hearing. Respondent’s Brief on Damages (“Res. Brief”), ECF
No. 64.
I held a call with the parties on August 19, 2020, to discuss Petitioner’s hearing
request and Respondent’s concern that Petitioner not testify as an expert. ECF No. 67. I
scheduled a damages hearing for January 12, 2021, and instructed that Petitioner’s
testimony should be limited to a description of the symptoms he experienced. Id. Prior to
the damages hearing, Petitioner filed a reply brief, the finalized version of the article
written about his SIRVA injury, and further imaging. ECF Nos. 66, 69, 71. The damages
hearing was held as scheduled.
II. Factual History
A. Medical Records
Prior to the relevant vaccination, Dr. Leslie was a healthy individual who exercised
daily and whose only concerns were dry eyes and sleep deprivation due to his demanding
work schedule. Exhibit 1 at 72 (record from March 31, 2015 visit). On September 30,
2016, he received a flu vaccine in his left deltoid at one of the medical facilities in Kentucky
where he worked on a contract basis as a radiologist. Exhibit 3 at 1.
On October 31, 2016, Petitioner submitted a written report to the medical facility
where he received the vaccination. Exhibit 5. The report described the improperly
administered vaccination, the pain and limited range of motion (“ROM”) he had
experienced within two hours, and his consultation with an orthopedist “[a]fter several
weeks of persistent pain.” Id. at 1. He indicated he had contacted the nurse who
administered the vaccine three days and two weeks after vaccination and reported the
injury to employee health on October 28, 2016. Id.
Petitioner underwent an MRI on November 4, 2016 (Exhibit 7 at 1-3), and was
seen by a local orthopedist, Dr. Tillett, on November 21, 2016 (Exhibit 2 at 4-5). At the
orthopedic visit, Petitioner reported “almost immediate pain and . . . difficulty using the
arm for 3 or 4 weeks” following his flu vaccine which he believed was improperly placed.
Id. at 4. His pain and movement improved slightly but then reoccurred when he attempted
to increase his activity. Id. Upon examination, Petitioner exhibited good strength and
ROM. Id. at 5. After reviewing the MRI, Dr. Tillett opined that Petitioner had suffered a
SIRVA and instructed him to take anti-inflammatory medication and to stretch using
exercise bands. Id. at 4.
3

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 4 of 16
From April 10-13, 2017, Petitioner and his wife visited the Mayo Clinic in Minnesota
for his left shoulder pain and comprehensive medical visits for them both.3 Petitioner was
first seen on April 10, 2017, by Dr. Bierle for a multiple issue evaluation which included
his left shoulder pain. Exhibit 2 at 50. He reported that his pain and limited ROM had been
improving for the first two months after vaccination but then plateaued during the last
three months. Id. Reporting discomfort with normal activities, Petitioner assessed his pain
level as two to four out of ten, four being with movement. Id. at 51. Diagnosing Petitioner
with SIRVA and adhesive capsulitis, Dr. Bierle referred Petitioner to a specialist within the
Mayo Cinic. Id. at 54. It appears that Petitioner’s prior test results, including the MRI he
underwent on November 4, 2016, were reviewed that day. Exhibit 1 at 77.
The next day, on April 11, 2017, Petitioner was seen by Dr. Wisniewski in Physical
Medicine & Rehabilitation. Exhibit 1 at 45-46. He again reported immediate pain upon
vaccination which became debilitating within two hours. Id. at 45. Indicating he had been
diagnosed with adhesive capsulitis by his local orthopedist, Petitioner reported a 40
percent improvement4 with stretching exercises but continued pain at a level of two to
seven out of ten. Id. Upon examination, Petitioner was observed to have tenderness over
his lateral subacromial space and humeral head. For ROM, he showed abduction of 100
degrees, forward flexion of 130 degrees, and passive movement of 20 degrees. Dr.
Johnson, who had reviewed Petitioner’s November 4, 2016 MRI, was consulted, and it
was recommended that Petitioner undergo another MRI, followed by a cortisone injection
and physical therapy (“PT”). Id. at 46.
On April 12, 2017, Dr. Wisniewski discussed the results of the MRI performed the
day before, which showed “marked capsulitis and subacromial/subdeltoid bursitis with
erosive change at the distal infraspinatus tendon insertion on the humeral head.” Exhibit
1 at 27. Comparing this recent MRI to the one Petitioner underwent in early November
2016, Dr. Wisniewski observed that the erosive changes on Petitioner’s humeral head
were increasing. He ordered testing and referred Petitioner to Infectious Disease to rule
out infection or inflammatory arthritis. Id.
Petitioner then returned to Dr. Bierle (who had by this point spoken to Dr.
Wisniewski). Exhibit 1 at 25-26. Noting that Petitioner had an appointment the next day
at Infectious Disease, Dr. Bierle reiterated the importance of ruling out any infection
3 As Petitioner explained during the January 12, 2021 damages hearing, he and his wife receive their
primary medical care through a concierge program at the Mayo Clinic, which allows access to any needed
specialist during comprehensive visits. Transcript (“Tr.”) at 102; see also Tr. at 32-34 (testimony from
Petitioner’s wife). Petitioner also attended medical school at and performed his radiology residency at the
Mayo Clinic. E.g., Exhibit 1 at 42.
4 The report from Dr. Woods, who was assisting Dr. Wisniewski on April 11, 2017, provided the same
history. Exhibit 1 at 41-44. However, that record contains one minor difference, that Petitioner’s
improvement until he plateaued was 20 to 50 percent. Id. at 41
4

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 5 of 16
before Petitioner was administered a cortisone injection. Id. The lesser concern was the
possibility of inflammatory arthritis, as it was less likely and meant a cortisone injection
would not be harmful.
On April 13, 2017, Petitioner was seen by Dr. Tande at Infectious Disease. Exhibit
1 at 23-24. Providing the same history of pain after vaccination, Petitioner reported
improvement of 40 percent but “pain with certain maneuvers . . .[and] no pain at rest.” Id.
at 23. While opining that the possibility “for ongoing infection [wa]s low,” Dr. Tande
recommended fluid aspiration to definitively rule it out. Id. at 24. Dr. Steinmann from the
Hand Clinic also examined Petitioner and agreed with Dr. Tande’s recommendation. Id.
at 22; see id. at 19. Dr. Steinmann observed the same pain with movement and reduced
ROM noted by Drs. Wisniewski and Woods. Id.
When it seemed that a glenohumeral aspiration could not be scheduled for that
day at the Mayo Clinic, Dr. Bierle discussed the possibility of it being performed after
Petitioner returned home to Kentucky. Exhibit 1 at 20. On April 14, Petitioner sought
further details through on-line communication with Dr. Tande so he could schedule the
needed aspiration with a local provider. Id. at 13. Dr. Bierle summarized this plan during
on-line communication on April 17, and a nurse from his office sent a follow-up
communication on April 27. Id. at 9.
On May 1, 2017, Petitioner visited his local orthopedist, Dr. Tillett. Exhibit 2-3. Dr.
Tillett characterized Petitioner’s injury as adhesive capsulitis secondary to inflammation
of the glenohumeral joint. Id. at 2. Comparing the MRIs performed in November 2016 and
April 2017, he observed the increased change noted by the physicians at the Mayo Clinic.
Id. at 3. Upon examination, Petitioner exhibited good strength and limited ROM, described
as 140 degrees for forward flexion, internal rotation to L1, and external rotation of 45
degrees. Id. at 2. Attempting glenohumeral aspiration, Dr. Tillett was unable to collect any
fluid, and therefore proposed arthroscopic surgery. Id. On May 11, 2017, Petitioner
discussed Dr. Tillett’s recommendation with Dr. Bierle, who thought a bone scan would
be the best next step. Exhibit 1 at 7.
Returning to the Mayo Clinic, Petitioner was seen by Dr. Wisiewski on June 13,
2017. Exhibit 27 at 8. Petitioner reported that “his shoulder [wa]s perhaps slightly better .
. . [and] his range of motion may have improved mildly.” Id. Dr. Wisniewski assessed
Petitioner as having “internal rotation . . . to upper lumber,” passive external rotation to 20
degrees and full strength. Reviewing an x-ray taken the previous day, Dr. Wisniewski
observed that the mild depression and irregularity seen on Petitioner’s posterior superior
humeral head appeared unchanged compared to April. Id.; see id. at 7 (results of x-ray
taken on June 12, 2017). He noted that Petitioner had a pending indium scan and visits
at Infectious Disease and Orthopedics. Id. at 8. He reiterated his belief that the best step,
if infection was ruled out, would be a guided cortisone injection followed by PT, and
5

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 6 of 16
Petitioner agreed. Id. Testing performed later that day, which included bone marrow
aspiration and a bone scan, showed no evidence of infection. Exhibit 27 at 10-12.
On June 14, 2017, Petitioner was seen by Dr. Bierle, who noted Petitioner’s slight
improvement, continued limitations in ROM, and lack of any evidence of infection. Exhibit
27 at 13. Dr. Bierle agreed with Dr. Wisniewski’s proposal of a guided cortisone injection,
preferring that Petitioner first saw Drs. Tande and Steinmann, at Infectious Disease and
the Hand Clinic respectively. Id. at 14.
When seen at the Hand Clinic on June 15, 2017, by Dr. Soukup, Petitioner was
observed as having mildly limited forward flexion (140 degrees as compared to 160
degrees for his right shoulder) and more drastic limitation in external and internal rotation
(respectively 15 compared to 70 degrees and to T12 rather than to T6). Exhibit 27 at 16.
Both Dr. Soukup, and Dr. Sia at Infectious Disease, agreed there was no evidence of
infection, however, allowing Dr. Leslie to undergo a guided cortisone injection. Id. at 17-
18. They also informed Petitioner that they “d[id] not expect any structural damages to
occur at the area of erosive bone noted on imaging.” Id. at 17. The guided cortisone
injection was performed that day at the Musculoskeletal Clinic by Dr. Duck. Id. at 20.
During this visit to the Mayo Clinic, Petitioner also underwent further testing regarding
indications of possible lung cancer seen on an earlier PET scan. E.g., id. at 37.
At his initial PT evaluation on August 23, 2017, Petitioner reported improvement in
his ROM and pain following the injection he received in June 2017, but continued
weakness, limited ROM, and an inability to perform daily tasks. Exhibit 4 at 2. Petitioner
rated the level of his pain as eight at worst, three at best, and four currently. Id. By his
second PT session, on September 11, 2017, Petitioner’s pain level had reduced to four
at worst, two at best, and two currently. Id. at 13. One week later at his third PT session,
Petitioner reported additional improvement to one at worst, zero at best, and one
currently. Id. at 16. When discharged from PT, after his fourth PT session on October 10,
2017, he rated his level of pain as one at worst, zero at best, and zero currently. Id. at 19.
Petitioner had met all PT goals except the one related to his external rotation which was
assessed as being 90 percent met. Id. at 23.
Petitioner returned to the Mayo Clinic four months later (on February 22, 2018)
and was seen by Dr. Sinaki. Exhibit 17 at 1-2. Reviewing former and updated x-rays, Dr.
Sinaki noted that the “mild irregularity along the posterosuperior humeral head . . . [wa]s
not significantly changed from the x-ray of June 12, 2017.” Id. at 1. Reporting that his pain
had decreased significantly, Petitioner stated that his main concern was his external
rotation which was still less than that of his right arm. Id. During his examination, Dr.
SInaki observed full ROM except for external rotation which lagged “by about 5 or
maximum of 8 degrees.” Id. at 2. Remarking that Petitioner was “applying extreme
stretching procedures for gaining the last few degrees of external rotation,” Dr. Sinaki was
6

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 7 of 16
concerned Petitioner could “induce more labral strain.” Id. He described Petitioner as
currently “pain free.” Id. Dr. Sinaki recommended application of ultrasound while
stretching, adding that Petitioner knew how to perform this exercise. He created a PT
referral in Petitioner’s electronic record which could be used if needed. Id.
It appears further PT was not needed, however, and the record does not establish
that Dr. Leslie pursued it thereafter. When Petitioner was seen again at the Mayo Clinic,
by Dr. Fabro over a year later (on June 18, 2019), he now reported that he had no pain
or functional limitation, and that the slight lag in his external rotation had improved with
home exercises. Exhibit 20.1 at 14. Dr. Fabro applauded Petitioner on his commitment to
his home exercises and assessed him as “return[ed] to his functional baseline.” Id. at 15.
B. Medical Article
The same history consistently provided by Petitioner when seeking medical care
is repeated in the article discussing his specific case of SIRVA – co-authored by Dr. Leslie
himself. Littrell et al., Progressive Monoarticular Inflammatory Arthritis Following Influenza
Vaccination, Mayo Clin Pro Inn Qual Out (2020), filed as Exhibit 31. The article describes
Petitioner’s onset, within two hours; subsequent decline; and then improvement. Id. at 2-
4. The results of MRIs and x-rays and treatment Petitioner received are also discussed in
detail. Id.
Describing the SIRVAs documented in medical literature, the article emphasizes
the unique nature of Petitioner’s injury. Exhibit 31 at 4-5. Although a small number of
cases involving a bone injury following vaccination are mentioned, Petitioner’s SIRVA is
classified as the only case in which “progressive erosive changes were demonstrated
along with an increase in severity of changes suggesting bursitis, synovitis, and adhesive
capsulitis on serial examinations over a 6-month period.” Id. at 5. Additionally, the
permeance of the now-static bone loss is deemed rare. Id.
III. 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
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
7

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 8 of 16
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.5 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).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merrow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merrow maintained that do so resulted in “the forcing of all
suffering awards into a global comparative scale in which the individual petitioner’s
suffering is compared to the most extreme cases and reduced accordingly.” Graves v.
Sec’y of Health & Human Servs., 109 Fed. Cl. 579, 590 (2013). Instead, Judge Merrow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
5 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. In early October 2019, the majority of SPU cases were
reassigned to me as the current Chief Special Master.
8

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 9 of 16
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
IV. Prior SIRVA Compensation Within SPU6
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2021, 1,874 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 1,820 of these cases, with the remaining
54 cases dismissed.
Of the compensated cases, 1,058 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 47 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.7
1,011 of this subset of post-entitlement determination, compensation-awarding
cases were the product of informal settlement - 987 cases via proffer and 24 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or in sight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Human
Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020)
(emphasis in original).
The remaining 762 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
6 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
7 See, e.g., Sakovits v. Sec’y of Health & Human Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
9

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 10 of 16
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered8 Stipulated Stipulated9
Decisions by Damages Damages Agreement
Special Master
Total Cases 47 987 24 762
Lowest $55,619.60 $25,000.00 $45,000.00 $5,000.00
1st Quartile $75,044.44 $74,040.17 $90,000.00 $47,500.00
Median $86,784.56 $93,975.95 $115,214.49 $65,000.00
3rd Quartile $125,000.00 $120,390.74 $153,788.29 $91,250.53
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $509,552.31
B. Pain and Suffering Awards in Reasoned Decisions
In the 47 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $55,000.00
to $185,000.00, with $85,000.00 the median amount. Only four of these cases involved
an award for future pain and suffering, with yearly awards range from $500.00 to
$1,000.00.10
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment of 40 days to
over six months. In cases with more significant initial pain, petitioners experienced this
greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in ROM, and MRI imaging showed evidence of mild to moderate pathologies
such as tendinosis, bursitis, or edema. These SIRVAs usually resolved after one to two
cortisone injections and two months or less of PT. None required surgery. The duration
8 One award was for an annuity only, the exact amount which was not determined at the time of judgment.
9 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
10 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
10

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 11 of 16
of the injury ranged from six to 29 months, with petitioners averaging approximately nine
months of pain. Although some petitioners asserted residual pain, the prognosis in these
cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 50 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In three cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering. In the fourth case involving an
award of future pain and suffering, the petitioner provided evidence of an ongoing SIRVA
expected to resolve within the subsequent year.
V. The Parties’ Arguments
Petitioner requests $180,000.00 for his past pain and suffering and $6,321.86 for
his past medical expenses. Pet. Brief at 19. Despite maintaining that his pain, suffering,
and emotional distress are well documented in testimonial affidavits, medical records, and
medical literature, Petitioner requested a damages hearing as well, arguing that testimony
would further help to describe the circumstances of his injury. Id. at 11-12, 19. Criticizing
what he perceives as an overreliance on a distinction between cases involving surgery
from those that do not, Petitioner insisted that his case, giving his sustained levels of pain
and additional concerns regarding the bone loss, deserves a more significant award. Id.
at 14-16.
Regarding the factors I should generally consider when determining the
appropriate amount of compensation for pain and suffering, Petitioner agreed with
Respondent’s assertion awards from outside the Vaccine Program should be considered.
Pet. Brief at 12-13. However, he claimed Respondent erroneously focused his search on
a subset of these awards, when a more comprehensive review of these determinations
would support an award more consistent with his request. Id. at 13-14. Petitioner also
criticized what he believes is Respondent insistence that only information in medical
records be considered as an incorrect reading of the Vaccine Act and caselaw. Id. at 8-
10.
In reaction, Respondent maintained Petitioner should be awarded a little more than
half of the demand, or only $91,500.00 for past pain and suffering, while accepting the
past unreimbursed sum as reasonable. Res. Brief at 1 n.1. Focusing on the treatment
11

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 12 of 16
Petitioner received and his improved condition by 17 months after vaccination,
Respondent argued that Petitioner is not entitled to a substantial award. Id. at 17-18. He
also mentioned the fact that Petitioner had three flu vaccines, also in his left arm, following
his SIRVA, and that, according to physicians at the Mayo Clinic, no structural damages
is expected by the bone erosive Petitioner experience. Id. at 18.11
VI. Testimony and Affidavits
A. Written Witness Statements
In his first affidavit, Petitioner addressed the basic requirements of the Vaccine
Act. Exhibit 6 at ¶¶ 2, 5, 10, 11; see also Section 11(c). He also described the onset of
his pain and reports of his injury to the vaccine administrator. Id. at ¶¶ 6-9. Providing
further detail in the supplemental affidavit he filed in April 2018, Petitioner described the
difficulties he experienced working long hours as a radiologist, as well as sleeping and
performing daily tasks. Exhibit 13 at ¶¶ 7, 9-11, 14. Prior to vaccination, he enjoyed an
active and healthy lifestyle which included working in his yard and exercising regularly.
Id. at ¶¶ 2-6. As his injury progressed, Petitioner experienced additional stress,
compounded by his inability to engage in stress relieving exercise and the revelation that
he was experiencing increasing bone erosion. Id. at ¶¶ 11-12, 15. Although Petitioner’s
pain and ROM improved with treatment, he noted the improvement was hard earned.
“According to [his] physical therapist, [he] was the most compliant and hardworking
patient that she ha[d] ever had.” Id. at ¶ 18. Comparing his pain which he described as
severe for nine months and then moderate thereafter to the pain he experienced after
fracturing his wrist and ankle as a teenager, Petitioner maintained his SIRVA was worse.
Id. at ¶ 13.
In her affidavit, Petitioner’s wife described his determination, independence, and
extreme work ethic. Exhibit 12 at ¶¶ 1-6. Mentioning the growing stress of Petitioner’s
work as a radiologist, she emphasized the importance of the stress relieving activities
together, such as exercising, gardening, cooking, and travel. Id. at ¶¶ 7, 12, 15. She
provided detailed descriptions of the difficulties Petitioner experienced after vaccination,
attempting to sleep or move his arm. Noting how unusual it was for Petitioner to be limited
by an injury (id. at ¶ 13), she described the seventeen months following the onset of
Petitioner’s SIRVA as “exceedingly difficult” (id. at ¶¶15).
11 Respondent also spent greater than 50 percent of his brief discussing the Vaccine Act’s $250,000.00 cap
on awards for pain and suffering. Res. Brief at 9-17. As the guidance provided by the Graves decision is
clear, however (see supra Section III), this argument will not be discussed further.
12

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 13 of 16
Petitioner also filed an affidavit from a colleague and friend, Dr. Jeffrey Boyd.
Exhibit 11. In the affidavit, Dr. Boyd echoed the information regarding petitioner’s prior
condition and SIRVA symptoms provided by Petitioner and his wife. Id. at ¶¶ 2-6, 8-9. Dr.
Boyd also opined that the findings of Petitioner’s November 4, 2016 MRI, which he
reviewed with Petitioner, “w[ere] markedly abnormal and the findings were clearly acute.”
Id. at ¶ 7.
B. Hearing Testimony
In their testimony, both Dr. Leslie and his wife reiterated the information contained
in their affidavits, adding additional details at certain points. For example, Petitioner’s wife
provided examples of the leisure and professional events Petitioner was forced to miss,
and described her frustration due to her inability to help her husband. Tr. at 15, 17, 28.
The Leslies also described the additional stress caused by the unique nature of his injury;
the time it took to determine if it involved a more serious condition, such as an ongoing
infection; and the uncertainty surrounding the effects of the continuing bone erosion. Tr.
at 21-23, 29-30, 60-65, 69-70, 89-92. Petitioner specifically maintained that the lower
number of PT sessions he participated in should not be viewed as an indication of milder
symptoms, since (as a motivated individual and physician) he was able to do much of the
PT on his own. Tr. at 84, 87.
Dr. Leslie also described in detail the difficulties his SIRVA caused while
performing his job. Although he did not miss a day of work during this time, both he and
his wife attributed that result to Petitioner’s determination rather than mildness of the
injury. Tr. at 13-14, 15-16, 36, 48. Even after his injury was close to complete resolution,
the continued reduction in external rotation interfered with Petitioner’s work. As a
radiologist, Petitioner works at a station with several computer monitor panels extending
to the left and right. Thus, external rotation of both arms is needed while performing
certain tasks. Tr. at 50; see also Tr. at 12-15 (testimony from Petitioner’s wife).
Regarding the duration of his SIRVA, Petitioner testified that it took 32 months for
his injury to fully resolve. Tr. at 95. He indicated that he did not recall being pain free in
February 2018 as noted by Dr. Sinaki in the medical records from that visit. Instead, he
recalled his pain level being approximately three out of ten and his external rotation being
limited about 20 degrees. Tr. at 105-06. Petitioner claimed he was not pain free with an
almost full range of motion until seen by Dr. Fabro in June 2019. Tr. at 107-08.
VII. 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
13

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 14 of 16
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
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my ultimate determination on the circumstances of this case.
I begin with the records themselves. It is well understood that contemporaneously-
created medical records are entitled to significant weight in Program cases. Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). While claimants
can supplement those records with personal recollection and testimony, providing nuance
or details that a record may lack, it is difficult for an individual to rebut what a record sets
forth, absent a compelling showing and the proper circumstances. Id. (citing United States
v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948)
(“Where such testimony is in conflict with contemporaneous documents we can give it
little weight . . . .”)).
Here, my review of the records leads me to conclude that Petitioner’s SIRVA injury
was not one of the more severe or onerous (especially when compared to those also
resulting in pain and suffering awards in the Vaccine Program). Dr. Leslie suffered
moderate to severe symptoms of pain and limited ROM until he received a cortisone
injection in June 2017, followed by formal PT in late August through early October 2017.
At that point (now twelve months after vaccination) Petitioner’s pain levels had decreased
significantly. Although Petitioner maintained he suffered severe pain throughout this time,
the medical records suggest that he often rated his pain lower, as two to four and then
two to seven. At most, Petitioner’s pain was consistent, presenting more suffering than
that experienced with intermittent pain. Petitioner’s claim that that his synovitis was the
most seen by experienced physicians at the Mayo Clinic is supported by the record in this
case. However, the most severe pain levels reported by Petitioner can be found in the
record from Petitioner’s first PT session on August 23, 2017. At that time, Petitioner
reported pain ranging from three to eight.
Following his last PT session on October 10, 2017, Petitioner’s symptoms were
consistently termed as mild. Although Dr. Leslie was clearly (and understandably)
bothered by a continued reduction in external rotation, the medical records show this
limitation was not significant, and he was otherwise relatively symptom-free for the
remainder of his injury course. While Petitioner did not fully recover until June 2019, his
SIRVA should be characterized as mild from October 2017 through this date. In
comparison, I note that many Program petitioners never return to their functional baseline
as Petitioner did in this case – and this may remain the case after many more PT sessions
or invasive surgeries. They also often are not as healthy as Petitioner prior to vaccination,
14

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 15 of 16
nor as determined to fully recover – and the fact that Dr. Leslie never required a surgical
procedure does bear on the pain and suffering calculation (although I accept his argument
that it does not prevent an award by itself, or one higher than median).
The hearing testimony helped underscore the additional stress Dr. Leslie has
experienced, given the uncommon form of his SIRVA presentation. There is reasonable
uncertainty surrounding his continued bone erosion and possibility of an ongoing
infection, and Petitioner has shown how this added to his pain and suffering. Moreover,
these issues delayed effective treatment (a cortisone injection and PT), which Petitioner
was unable to undergo until later in 2017. These additional stressors were present until
nine months after vaccination, when Petitioner learned his bone erosion was not
progressing further and there was no evidence of infection. They are all supportive of not
only a pain and suffering award herein, but also one somewhat larger than I might
otherwise conclude for a similarly-situated petitioner whose course was relatively short
and featured mild symptoms and limited treatment.
At the same time, there is a somewhat-speculative quality to these issues which
prevents me from embracing an award of the magnitude requested. See J.T. v. Sec’y of
Health & Human Servs., No. 12-0618V, 2015 WL 5954352, at *7 (Fed. Cl. Spec. Mstr.
Sept. 17, 2015) (finding special masters “cannot award speculative damages”). Dr. Leslie
has not received a prospective diagnosis that his bone erosion will inevitably worsen or
require further treatment. He is not scheduled for future treatment of any significance.
Indeed, based on the records filed herein, it appears he has mostly recovered. In addition,
his admirable personal qualities (hard work and professional dedication), coupled with his
medical expertise, appear to have aided his weathering of the injury – and thus mitigated
his loss somewhat. It is not my intent to belittle the evident suffering this injury imposed
on Petitioner (and I hope the generous award I herein allow will underscore that), but my
final determination is that the suffering he experienced does not justify the award
requested.
Overall, given the unique circumstances of Petitioner’s experience, I agree that he
is entitled to a higher award than usual, and more than Respondent proposes – but less
than what Petitioner has requested. To help me arrive at a precise number, I look to prior
reasoned determinations involving comparable SIRVA injuries. Two non-surgical cases
with awards greater than $100,000.00 are particularly instructive. See generally Dawson-
Savard v. Sec’y of Health & Human Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl.
Spec. Mstr. July 14, 2020); Danielson v. Sec’y of Health & Human Servs., No. 18-1878V,
2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020). Although Danielson involved a
bone bruise as well as inflammation of her shoulder joint, the petitioner in that case did
not suffer the bone erosion suffered by Petitioner. Additionally, the Danielson petitioner
had unrelated conditions which constituted other sources of pain. Id. at *5. Thus,
Petitioner’s award for past pain and suffering should be greater than the $110,000.00
15

Case 1:18-vv-00039-UNJ Document 81 Filed 03/04/21 Page 16 of 16
awarded to the petitioner in Danielson. Id. at *1, 7.
Dawson-Savard provides a slightly better comparable. Dawson-Savard, 2020 WL
4719291, at *1, 4. The Dawson petitioner experienced significant pain for more than 24
months, reporting moderate pain levels and severely decreased ROM during this time.
Id. at *2-3. Deemed not suitable for surgery and requiring 13 cortisone injections, the
Dawson-Savard petitioner was expected to have some permanent impairment. Id. The
unique circumstances and additional stressors experienced by Petitioner dictate his
award should be closer to the amount given to the petitioner in Dawson, but discounted
slightly to account for the lessened degree of outright physical pain and suffering herein.
Thus, since that petitioner received $130,000.00 (plus a future component of pain and
suffering, which is not relevant herein), a reduced figure still in that general range is
appropriate.
VIII. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $125,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past pain and suffering. I also find that Petitioner is
entitled to $6,321.86 for his past expenses.
I thus award Petitioner a lump sum payment of $131,321.86, representing
$125,000.00 for his actual pain and suffering and $6,321.86 for his actual
unreimbursable 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).
The Clerk of the Court is directed to enter judgment in accordance with this
decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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