VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01047
Package ID: USCOURTS-cofc-1_19-vv-01047
Petitioner: Darrel Laurette
Filed: 2019-07-18
Decided: 2024-04-29
Vaccine: influenza
Vaccination date: 2016-10-21
Condition: left Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 136342

AI-assisted case summary:
On July 18, 2019, Darrel Laurette filed a petition seeking compensation under the National Vaccine Injury Compensation Program, alleging he suffered a left Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccine on October 21, 2016. Mr. Laurette, who was 39 years old at the time and employed as a radiological technician, stated that his job required extensive physical activity. There were no medical records immediately following the vaccination. Mr. Laurette reported experiencing left shoulder pain approximately six weeks after the vaccination, which he attributed to the injection. He sought medical attention in December 2016 and January 2017, reporting pain and a limited range of motion in his left shoulder. His treatment included prescriptions for medication, an X-ray which showed no abnormalities, and later, a steroid shot, physical therapy, and arthroscopic surgery in 2018. Witness affidavits from his wife and a work colleague supported his claims of pain and limitations following the vaccination. The respondent argued that Mr. Laurette's pain did not begin within 48 hours of vaccination and was not limited to the shoulder. However, Chief Special Master Brian H. Corcoran found that the evidence, including witness affidavits, supported an onset of pain within 48 hours of vaccination and that the pain was primarily localized to the vaccinated shoulder, satisfying the Table requirements for a SIRVA claim. The Special Master granted entitlement on November 21, 2022. Subsequently, on April 29, 2024, Chief Special Master Corcoran issued a decision awarding Mr. Laurette $130,000.00 for actual pain and suffering, plus $6,342.93 to satisfy a Medicaid lien, totaling $136,342.93 in compensation. Petitioner was represented by Bruce W. Slane, and respondent was represented by Martin C. Galvin in the entitlement phase, and Camille Collett in the damages phase.

Theory of causation field:
Petitioner Darrel Laurette, age 39, received an influenza vaccine on October 21, 2016, and alleged a left Shoulder Injury Related to Vaccine Administration (SIRVA). The claim proceeded as a Table claim. Respondent argued that the onset of pain was not within 48 hours of vaccination and that the pain was not limited to the shoulder. Petitioner presented evidence, including his own affidavit and those of his wife and a work colleague, indicating pain onset within 48 hours and localization to the left shoulder, despite a delay in seeking medical treatment. The Special Master, Brian H. Corcoran, found that the evidence preponderantly supported a Table onset within 48 hours and that the pain was primarily limited to the shoulder, satisfying the criteria outlined in 42 C.F.R. § 100.3(c)(10). Entitlement was granted on November 21, 2022. Damages were awarded on April 29, 2024, totaling $136,342.93, consisting of $130,000.00 for pain and suffering and $6,342.93 for a Medicaid lien. Petitioner was represented by Bruce W. Slane and respondent by Martin C. Galvin (entitlement) and Camille Collett (damages).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01047-0
Date issued/filed: 2022-12-21
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/21/2022) regarding 88 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
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Case 1:19-vv-01047-UNJ Document 89 Filed 12/21/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1047V
(to be published)
* * * * * * * * * * * * * * *
DARREL LAURETTE, * Chief Special Master Corcoran
*
Petitioner, *
* Dated: November 21, 2022
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Bruce W. Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.
Martin C. Galvin, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On July 18, 2019, Darrel Laurette filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges he suffered a left
Shoulder Injury Related to Vaccine Administration (“SIRVA”) following receipt of an influenza
(“flu”) vaccine on October 21, 2016. Petition (ECF No. 1) (“Pet.”) at 1. The matter was originally
assigned to the Special Processing Unit (the “SPU”), but the parties could not resolve the claim
(mainly because it involves a potentially large damages component dispute). Accordingly, the case
was transferred out of SPU and to my individual docket.
1 This Decision will be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of
2002, 44 U.S.C. § 3501 (2012)). This means that the Decision will be available to anyone with access to the
internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion
of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial
or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the
whole Decision will be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:19-vv-01047-UNJ Document 89 Filed 12/21/22 Page 2 of 9
I proposed that the underlying issue of entitlement could reasonably be decided on the
record, and the parties have offered briefs in support of their respective positions. Petitioner’s
Motion, dated April 29, 2022 (ECF No. 79) (“Mot.”); Respondent’s Opposition, dated June 29,
2022 (ECF No. 84) (“Opp.”); Petitioner’s Reply, dated July 5, 2022 (ECF No. 85). Now, after
review of the medical records and briefs, I GRANT entitlement, because Petitioner has established
the Table elements for a SIRVA claim
I. Factual Background
Petitioner was born on July 22, 1977, and was thus thirty-nine years old when he received
the flu vaccine on October 21, 2016, as a requirement of his employment. See generally Ex. 3
(Petitioner’s Affidavit, dated July 17, 2019) (ECF No. 7-3)); see also Ex. 2 at 2–4; Ex. 7 at 31. At
that time, he had been working as a lead radiological technician/mechanic for Revels Contracting
Services (“Revels”), and his job entailed extensive physical activity installing medical equipment.
Ex. 7 at 31; Ex. 35 at 1–3.
There are no medical records close-in-time to the vaccination event, and thus no
immediately-contemporaneous evidence of any purported symptoms relating to the vaccination.
In fact, the first record evidence of any injury at all is found in a communication between Mr.
Laurette and Revels from December 9, 2016, when someone emailed him in response to a voice
message that he had left indicating that he had left shoulder pain and was planning to seek medical
attention. Ex. 27 at 239.3 The next day (December 10th), Mr. Laurette went to an urgent care facility
and was seen by Bruce Chaney, P.A. Ex. 5 at 1–3. He now reported a six-week history of left
shoulder pain “caused by having a flu injection in that shoulder,” and described the pain as “aching
and moderate,” 5/10 at rest but more painful with movement. Id. (six weeks from this date would
be late October 2016). Petitioner was assessed with unspecified left arm pain, and he received a
prescription for a methyl prednisone dose pack and Percocet. Id. at 2-3.
Despite the above, Petitioner continued in December 2016 to travel for his position. See,
e.g., Ex. 35 at 3. However, he informed Revels a few days after his urgent care visit that although
his pain had subsided somewhat, it was still present. Ex. 27 at 239–47. He also indicated an intent
to pursue redress, either through a Vaccine Program claim or a workers compensation claim. Id.
at 241. Later in December, Petitioner determined that (while on travel for a job assignment) his
3 Respondent’s brief suggests that Petitioner’s decision to seek treatment for the alleged shoulder pain may have been
motivated in part by litigation concerns. Thus, records filed in this case establish that on December 8, 2016,
Petitioner’s counsel signed a retainer agreement regarding the instant case that was fully executed by the end of the
month. Ex. 18 at 4. However, I do not find in this case that the proof of Table onset offered by Petitioner has been
outweighed by a suggestion from the record that Petitioner’s desire to pursue a claim was why he decided to seek
treatment. In fact, it is just as likely that Petitioner’s awareness of his pain was what led him to explore legal avenues
of redress; that conclusion is not rebutted by Petitioner’s delay in seeking treatment.
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shoulder pain was too severe for work, and he returned home. Ex. 27 at 256. Petitioner thereafter
ceased working for Revels entirely (although the parties appear to dispute whether this reflected
Petitioner’s personal decision to quit or was due to the severity of his SIRVA injury). He was not
formally terminated until August 2017, however, and the record reveals he later found other
employment in 2018. Id. at 322; Ex. 3 at 4.
Beginning in January 2017, Petitioner began to receive more consistent treatment for his
alleged SIRVA. Thus, on the early evening of January 3, 2017, he took himself to the emergency
department of an urgent care center complaining of left shoulder pain. Ex. 6 at 12. The intake
record indicates that his pain was moderate, and that onset had occurred three weeks before (and
hence if true well after the vaccination at issue if true)—although the identified “mechanism” for
the injury was an unspecified “injection” (and there is no record evidence that Petitioner received
an immunization the prior month). Id. Dr. John Torres, M.D., however, evaluated petitioner during
this visit, and the records of his exam are more specific about onset. He thus noted that the reported
onset of pain was “Oct 2016” after receipt of a flu vaccine, with duration of pain “for 3 month(s).”
Ex. 6 at 14.
Dr. Torres ordered a left shoulder x-ray, but the x-ray did not show any abnormalities. Ex.
6 at 16. A physical exam revealed: “clavicle: negative for swelling and ecchymosis, deformity,
tenderness and crepitus. Shoulder: positive for left side tenderness and limited ROM. Negative for
left side swelling, ecchymosis, deformity and dislocation.” Id. at 15–16. Range of motion was
limited by pain only, and passive range of motion was intact. Id. There was limited abduction in
active range of motion. Id. There was no shoulder tenderness. Id. Dr. Torres could not identify a
cause for Petitioner’s symptoms, and Petitioner was discharged (at which time he now reported no
pain at all). Id. at 14, 16–17.
Two days later (January 5, 2017), Mr. Laurette was evaluated by a physician for a workers
compensation claim. Ex. 7 at 56. He reported that “after” receiving the flu vaccine that Revels had
mandated for employees, he had lost “mobility in [his] arm” and was experiencing a “constant
ache in bicep,” as well as “crippling pain when [his] elbow [was] raised above [his] shoulder.” Id.
at 31. He described the pain as travelling from the “middle of [the] shoulder to [the] elbow” and
that he had “burning” and “shooting” pains. Id. at 32. He also described having a “constant ache
and throb” in his left arm 5-6/10, worsening to 9/10 with above-the-shoulder movement. Id.
Petitioner was assessed with pain after the vaccination. Id.
In the ensuing months, Petitioner continued to obtain treatment for his reported pain and
movement issues. See, e.g., Ex. 7 at 23 (January 19, 2017, visit with workers compensation
physician); Ex. 9 at 12–14 (January 31, 2017, visit to orthopedist). By February 2017 he began
consulting with a physical therapist (Ex. 10 at 3–4, 23). He reported ongoing pain and difficulties
with movement—although that he was unable to wash his back, participate in activities where he
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Case 1:19-vv-01047-UNJ Document 89 Filed 12/21/22 Page 4 of 9
would “take some force or impact” from his “arm, shoulder or hand,” or sleep due to pain. Id. The
record from the initial consultation (conducted on February 8, 2017) memorializes Petitioner’s
assertion that the October 2016 vaccination “hurt more than normal,” and that he felt worsening
pain “The next day when he tried to do his job which is mainly done overhead.” Id at 23. Five
weeks later, he could not lift his arm over his head. Id. Petitioner continued PT for twelve visits
but was discharged on April 15, 2017, due to lack of progress. Id. at 11–36.
Petitioner’s treatment efforts continued on into the spring, as memorialized in the parties’
briefs. See, e.g., Mot. at 11–20; Opp. at 4–13. In summary, Petitioner received fairly conservative
treatments overall (in part due to the fact that he lacked insurance or other resources needed to pay
for medical services). By November 2017, he had received a steroid shot for his shoulder pain. Ex.
15 at 6–7. He underwent additional PT in the early winter of 2018. Id. at 21–83. Eventually in
2018, Petitioner received the diagnosis of subacromial bursitis, and that summer underwent a left
shoulder arthroscopy. Ex. 16 at 33–36, 42–44. He experienced post-surgical PT into the fall of
2018, and has since then experienced lingering weakness and intermittent pain (although there is
ample evidence that he mostly felt recovered after the surgery). Mot. at 19–20.
Besides the medical records themselves, Petitioner has offered several witness statements
and declarations in support of his claim. See generally Ex. 3, Ex. 4 (Affidavit of Amanda Laurette,
dated July 17, 2019 (ECF No. 7-4)), Ex. 29 (Petitioner’s Supplemental Affidavit, dated November
9, 2020 (ECF No. 46-1)), Ex. 35 (Petitioner’s Further Supplemental Affidavit, dated April 26,
2022 (ECF No. 77-1)), and Ex. 36 (Affidavit from Robert Thane, dated April 28, 2022 (ECF No.
77-2)).
These witness statements contain a number of representations relevant to the onset
question. In his initial affidavit, Petitioner avers that he felt pain immediately upon vaccination,
and which worsened the next day. Ex. 3 at 1–2. He worked in October and November but found
the pain made it impossible to do his job, requiring him to rely on an unnamed “understudy.” Id.
at 2. By December 2016, the pain had become unbearable, leading him to seek the medical
interventions described above. Id. Petitioner explained the seven-week delay in seeking treatment
as attributable to his hope that the pain would subside. Ex. 29 at 1. He also later averred that the
need to travel for his job also interfered with his ability to seek medical care for his pain. Ex. 35 at
1. In that final affidavit, Mr. Laurette identified his work “understudy” as Robert Thane. Id. at 2.
Petitioner’s wife recalls being informed of his pain close in time to the vaccination event,
and that she observed him in pain when attempting to sleep and having difficulty with a number
of activities thereafter. Ex. 4 at 1–2. Mr. Thane himself was able to aver his presence at the time
of vaccination (since he also received the flu shot on October 21, 2016), and therefore observed
Petitioner’s immediate pain. Ex. 36 at 2. And Mr. Thane was personally present with Petitioner
during travels for Revels when equipment was to be installed, and thus was aware of Petitioner’s
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inability to perform certain tasks associated with the installation due to his pain. Id. at 2–3.
III. Procedural History
After the case’s initiation in the summer of 2019, it was assigned to SPU, since it asserts a
SIRVA claim—a kind of vaccine injury that routinely results in settlement or other prompt
resolution. But the case languished in SPU thereafter for several years, as the parties gathered
additional records and attempted unsuccessfully to settle the claim. I determined in February 2022
to transfer the matter out of SPU, but to my own docket (see Order (ECF No. 74)), and then set a
scheduling order for briefing on entitlement. That matter is now ripe for resolution.
IV. Applicable Legal Standards
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).4
In this case, Petitioner asserts a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
4 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding authority.
Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings concerning
legal issues are binding on special masters. Guillory v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 121, 124 (2003),
aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Hum. Servs., No. 13-159V, 2014 WL
504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1),
including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section 13(a)(1).
Petitioner’s allegations must be supported by medical records (or, when appropriate, by a medical
opinion). Id. To resolve factual issues, the special master must weigh the evidence presented,
which may include evaluation of contemporaneous medical records and testimony. See Burns v.
Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master
must decide what weight to give evidence including oral testimony and contemporaneous medical
records). The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe v. Sec’y
of Health & Hum. Servs., 110 Fed. Cl. 184, 204 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014)
(citing Section 12(d)(3); Vaccine Rule 8).
Medical records are generally viewed as particularly trustworthy evidence since they are
created contemporaneously with the treatment of the patient. Cucuras v. Sec'y of Health & Hum.
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). But they do not compel an outcome. Section
13(b)(1). A petitioner may in fact overcome facts set forth in a record with testimony which is
“consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Hum. Servs., No. 11–
685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of
Health & Hum. Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30,
1998)).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies
the vaccines covered under the Program, the corresponding injuries, and the time period in which
the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury
Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu
vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the
accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as
shoulder pain and limited range of motion occurring after the administration of a
vaccine intended for intramuscular administration in the upper arm. These
symptoms are thought to occur as a result of unintended injection of vaccine antigen
or trauma from the needle into and around the underlying bursa of the shoulder
resulting in an inflammatory reaction. SIRVA is caused by an injury to the
musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.).
SIRVA is not a neurological injury and abnormalities on neurological examination
or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would
not support SIRVA as a diagnosis (even if the condition causing the neurological
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abnormality is not known). 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) (2017).
ANALYSIS
Respondent makes two arguments against Petitioner’s Table showing. First, he denies that
onset of Petitioner’s pain occurred within 48 hours of vaccination. Opp. at 15–16; see 42 C.F.R. §
100.3(c)(10)(ii); see also 42 C.F.R. § 100.3(a)(XIV)(B) (requiring the first symptom or
manifestation of onset within 48 hours of vaccination for a SIRVA injury following receipt of a
flu vaccine). Second, he contends that Mr. Laurette’s pain was not limited to his vaccinated left
shoulder. 42 C.F.R. § 100.3(c)(10)(iii). The record preponderantly rebuts both arguments.
First, the overall record, supplemented with the witness affidavits, demonstrates it is more
likely than not that Petitioner’s pain began within 48 hours of vaccination. The evidence from
December 2016/January 2017 establishes that Petitioner complained of pain since vaccination.
Moreover, these records obtain support from Petitioner’s own affidavit plus those submitted by his
wife and work colleague. This (plus the absence of preponderant contrary evidence suggesting a
later onset) is a sufficient basis for a favorable onset determination.
Respondent maintains that Petitioner’s nearly two-month delay in seeking treatment
undercuts this finding. But (and as I have routinely noted), delay in treatment not only does not
prevent a favorable Table onset finding, but it is also almost to be expected in the context of a
SIRVA injury. Bergstorm v. Sec’y of Health & Hum. Servs., No. 19-0784V, 2020 WL 8373365,
at *3 (Fed. Cl. Spec. Mstr. Dec. 4, 2020). Claimants simply do not always comprehend that a
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vaccination may have harmed them, and/or believe that vaccination pain will be transient, and
therefore often delay treatment (sometimes based on advice of medical professionals). See e.g.,
Meagher v. Sec’y of Health & Hum. Servs., No. 18-1572V, 2021 WL 1293189, at *4 (Fed. Cl. Feb.
9, 2021) (more than two-month treatment delay did not undermine Petitioner’s onset assertions);
Williams v. Sec’y of Health & Hum. Servs., 17-830V, 2019 WL 1040410, at *9 (Fed. Cl. Spec.
Mstr. Jan. 31, 2019) (noting Petitioner’s delay in treatment was the result of her underestimating
the severity of her injury). Moreover, the Act clearly anticipates the fact that onset questions often
require consideration of evidence that temporally falls outside the relevant time period. See Section
13(b)(2) (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”).
Respondent also suggests that Petitioner’s physical labor-intensive job (which he engaged
in during the treatment gap at issue) undercuts the argument that he was likely living with pain in
the timeframe between vaccination and his first visit to a treater to address the putative pain. But
Petitioner has persuasively established, via the offered witness affidavits, that he was forced to
rely on assistance from a work colleague for physical acts that were too painful to perform. See
generally Ex. 36. At most, the fact of Petitioner’s treatment delay goes to overall severity when
calculating damages components like actual pain and suffering—and while I will give the delay
some weight when evaluating what would be the proper pain and suffering award, it does not
prevent a favorable onset finding. Otherwise, there are no records that are inconsistent with
Petitioner’s claims of Table onset (e.g., that would suggest an onset outside the timeframe). While
some records are inexact, that too is not uncommon when a claimant first starts to inform treaters
when onset began. Overall, the evidence preponderates in favor of a Table onset.
Second, Respondent contends that the record does not establish that Petitioner’s injury was
limited to his shoulder. Opp. at 16. But (as I have previously noted), even when records indicate
pain elsewhere in the arm, or describe “radiating” pain, I have routinely held that the Table
requirement is met as long as evidence also is consistent in describing shoulder pain. Stromer v.
Sec’y of Health & Hum. Servs., No. 19-1969V, 2022 WL 1562110, at *7 (Fed. Cl. Spec. Mstr.
Apr. 8, 2022) (finding that most of Petitioner’s records support a finding that his pain was limited
to the left shoulder, despite several references to radiating pain as well). Here, that is the case—
and to the extent Petitioner’s history describes pain unrelated to his SIRVA, such a discrepancy
presents a matter than can be resolved when calculating damages.
Respondent does not dispute any remaining Table SIRVA requirements, and the record
contains sufficient evidence showing Petitioner has satisfied them. See 42 C.F.R. § 100.3(c)(10)(i)
& (iii)-(iv). A thorough review of the record in this case does not reveal a prior or current condition
or abnormality which would explain Petitioner’s condition or pain and limited range of motion
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(“ROM”) other than in Petitioner’s injured left shoulder. Thus, all elements of a Table SIRVA
claim have been preponderantly established.
Because Petitioner has satisfied the requirements of a Table SIRVA, he need not prove
causation (and for this reason I given no consideration to Respondent’s arguments about
Petitioner’s success in that regard). Section 11(c)(1)(C). However, he must satisfy the other
requirements of Section 11(c) regarding the vaccination received, the duration and severity of his
injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall record
contains preponderant evidence which fulfills these additional requirements.
CONCLUSION
Based on the entire record in this case, I find that Petitioner has provided preponderant
evidence satisfying all requirements for a Table SIRVA. Petitioner is thus entitled to
compensation. The parties are hereby ordered to contact Chambers on or before December
2, 2022, to set a mutually-acceptable date for a status conference to discuss the resolution of
damages.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01047-1
Date issued/filed: 2024-04-23
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 03/25/2024) regarding 129 Findings of Fact & Conclusions of Law. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
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Case 1:19-vv-01047-UNJ Document 134 Filed 04/23/24 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1047V
* * * * * * * * * * * * * * *
DARREL LAURETTE, * Chief Special Master Corcoran
*
Petitioner, *
* Filed: March 25, 2024
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Bruce W. Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.
Camille Collett, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DAMAGES1
On July 18, 2019, Darrel Laurette filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges he suffered a
left Shoulder Injury Related to Vaccine Administration (“SIRVA”) following receipt of an
influenza (“flu”) vaccine on October 21, 2016. Petition (ECF No. 1) (“Pet.”) at 1. The matter was
originally assigned to the Special Processing Unit (the “SPU”), but the parties could not resolve
the claim. After the case was transferred out of SPU and to my individual docket, I determined
Petitioner was entitled to damages. See Ruling on Entitlement, dated Nov. 21, 2022 (ECF No. 88)
(the “Entitlement Ruling”).
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

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With one exception,3 the parties have been unable to resolve damages on their own, and
have now briefed their respective positions. Petitioner’s Damages Brief, dated July 6, 2023 (ECF
No. 116) (“Br.”); Respondent’s Brief, dated Oct. 3, 2023 (ECF No. 120) (“Opp.”); Petitioner’s
Reply, dated Oct. 17, 2023 (ECF No. 128) (“Reply”). For the reasons set forth in greater detail
below, I award $130,000.00 for actual pain and suffering, plus the amount of $6,342.93 to satisfy
a Medicaid lien (which shall be included in a formal decision, to be issued after the parties provide
information about the lien payee). I do not award any lost earnings.
I. Brief Factual Summary
The medical record summary and fact-findings contained in the Entitlement Ruling are
incorporated by reference. See generally Entitlement Ruling at 2–5. In short, Petitioner was nearly
40 when he received the flu vaccine on October 21, 2016, as a requirement of his employment.
Ex. 2 at 2–4; Ex. 3; Ex. 7 at 31. At that time, he had been working as a lead radiological
technician/mechanic for Revels Contracting Services (“Revels”), and his job entailed extensive
physical activity installing medical equipment. Ex. 7 at 31; Ex. 35 at 1–3.
After a six-week lag, Petitioner began seeking treatment for shoulder pain he suspected
was vaccine-related, because he had been experiencing symptoms since the vaccination in
October. Ex. 5 at 1–3. He continued to work through this period, but eventually determined he
could no longer perform his work-related tasks. Ex. 27 at 239–47, 256. Petitioner thereafter ceased
working for Revels entirely (although the parties appear to dispute whether this reflected
Petitioner’s personal decision to quit or was due to the severity of his SIRVA injury). He was not
formally terminated until August 2017, however, and the record reveals he later found other
employment in the spring of 2018. Id. at 322; Ex. 3 at 4.
I ultimately determined in my Entitlement Ruling that Petitioner had met the Table
elements for a SIRVA. Entitlement Ruling at 8–9. I did note, however, that Petitioner’s treatment
delay would be deemed a relevant consideration when evaluating the pain and suffering damages
component. Id. at 8. That delay gets properly balanced against the fact that Petitioner ultimately
underwent surgery in the summer of 2018 (although his overall treatment course was nevertheless
conservative in nature). Id. at 4. Notably as well, this is not a case in which the claimant received
multiple rounds of steroid injections. Rather, it appears he received his first such treatment in May
of 2023 Br. at 22. (It is likely, however, that conservative treatment might in part be explained by
both insurance coverage issues plus the imposition of the Pandemic in the winter of 2020—and
there is also record evidence that the Petitioner received some oral steroidal medications).4
3
The parties agree that a Medicaid lien sum in the amount of $6,342.93 should be included in the award, and therefore
that sum is not in dispute.
4
There is also record evidence Petitioner received a lidocaine injection in May 2018 (Ex. 9 at 4), but this is a local
2

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II. Relevant Law on Damages Determinations
A. General Considerations
A petitioner may recover “actual unreimbursable expenses incurred before the date of
judgment awarding such expenses which (i) resulted from the vaccine-related injury for which the
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)(A)(i) –(iii). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs.,
No. 93-0092V, 1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
B. Pain and Suffering
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 $250,000.00.” Section 15(a)(4). There is no mathematic formula for assigning a
monetary value to a person’s pain and suffering and emotional distress. I.D., 2013 WL 2448125,
at *9 (“[a]wards for emotional distress are inherently subjective”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996).
Factors to be considered when determining an award for pain and suffering include: 1)
awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL
2448125, at *9 (citing McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL
777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
F.3d 1240 (Fed. Cir. 1995)). I may 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 & Hum. Servs., 87 Fed. Cl. 758, 768 (2009). And, of course, I may rely on my
own experience adjudicating similar claims. Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958,
961 (Fed. Cir. 1993) (noting that Congress contemplated that 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 a decision from several years ago. Graves
v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to 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, 109 Fed. Cl. at 589–90. Instead, Graves 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 Vaccine Program. Id. at 593–95. Under this alternative
approach, the statutory cap merely cuts off higher pain and suffering awards—it does not shrink
anesthetic not congruent with a steroid injection.
3

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the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although
Graves is not controlling of the outcome in this case, it offers a reasoned understanding of the
issues involved in pain and suffering calculations, and underscores the importance of evaluating
pain and suffering first and foremost on the basis of the injured party’s own experience.
In another recent decision, I discussed at length the legal standard to be considered in
determining pain and suffering awards specifically in the SIRVA context. I fully adopt and hereby
incorporate my prior discussion in Sections I and II of Henderson v. Sec’y of Health & Hum.
Servs., No. 20-1261V, 2023 WL 2728778 (Fed. Cl. Spec. Mstr. Feb. 28, 2023).
C. Lost Wages – Past and Future
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections,” where
the injured party’s “earning capacity is or has been impaired by reason of such person’s vaccine-
related injury.” Section 15(a)(3)(A). The calculation of lost earnings damages must be performed
in a “cautious manner ‘in accordance with generally recognized principles and projections.’”
Brown v. Sec’y of Health & Hum. Servs., No. 00-182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec.
Mstr. Sept. 21, 2005) (citing Section 15(a)(3)(A)). As controlling federal case law provides (and
Petitioner accepts), requested lost wages must be net of taxes and related offsets. See Jones &
Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) (citing Norfolk & Western R. Co. v. Liepelt,
444 U.S. 490 (1980).
Compensation awarded for a petitioner’s anticipated loss of earnings may not be based on
speculation. J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed.
Cl. Sept. 17, 2015) (indicating Section 15(a)(3)(A) “does not envision that ‘anticipated loss of
earnings’ includes speculation” and thus refusing to allow lost wages on a planned business
venture that was too indefinite); Dillenbeck v. Sec’y of Health & Hum. Servs., 147 Fed. Cl. 131,
139 (2020 (citing J.T., 2015 WL 5954352, at *7). Accordingly, it is not enough to substantiate
such a request with some evidence, if the submissions offered ultimately rely on speculated (if
somewhat informed) “guesses” about what a claimant might have earned under optimal conditions.
See, e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2022 WL 10469047 (Fed.
Cl. Spec. Mstr. Sept. 2, 2022) (denying injured real estate agent’s claim of lost commissions;
although petitioner substantiated her claim with evidence, she could not demonstrate her
expectation of commissions or other real estate-related income was more than a reasoned hope).
II. Appropriate Compensation in this Matter
Petitioner seeks both aspects of pain and suffering damages—present/past and future. In
terms of actual pain and suffering, he requests $230,000.00, plus a future component that
(assuming it was subsequently reduced to present value) would equal more than $20,000.00—
meaning Petitioner in total requests the maximum amount of pain and suffering allowed in the
4

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Program. Br. at 31. Petitioner also seeks $104,040.19 for past lost earnings, inclusive of tax offsets,
calculated through May 2022.
Respondent maintains Petitioner should receive no more than $115,000.00 in actual pain
and suffering—with no future component. Opp. at 17. And he denies Petitioner is entitled to any
lost earnings sum.
A. 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 awareness of his injury.
Therefore, I analyze principally the severity and duration of the injury.
When performing the analysis in this case, I review the record as a whole to include the
medical records, declarations, affidavits, and all other filed evidence, plus the parties’ briefs and
other pleadings. 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 determination on
the circumstances of this case.
Petitioner’s Argument
Petitioner observes that his medical record reveals a treatment course that (he maintains)
lasted more than six years, ultimately resulting in surgery in June 2018. Br. at 25. Before surgery,
he attended 27 physical therapy (“PT”) sessions and displayed range of motion limitations
throughout the period. Id. at 26. He also attended 25 more PT sessions post-surgery, while
engaging in his own home exercise regime thereafter. Id. He also maintains he experienced a labral
tear post-surgery that he attributes to his therapy course (and hence is an indirect and additional
vaccine-related sequela). Id. at 26. The impact of injury on his career was also significant. Id. And
his injuries continue to cause him problems today. Id. at 26–27.
Petitioner compares his suffering to the claimants in several prior Vaccine Act cases.
Peterson v. Sec’y of Health & Hum. Servs., No. 20-1649V, 2023 WL 359116 (Fed. Cl. Spec. Mstr.
May 23, 2023) (awarding $130,000.00 for pain and suffering, where Petitioner underwent
arthroscopic debridement and subacromial decompression and where Petitioner asserted that his
injury caused pain and limited ROM for nearly four years); Lagle v. Sec’y of Health & Hum. Servs.,
No. 16-1053V, 2023 WL 3035370 (Fed. Cl. Spec. Mstr. Apr. 21, 2023) (awarding $130,000.00
for pain and suffering based on seven-year course, featuring rotator cuff repair and acromioplasty,
plus multiple doctor’s appointments, physical therapy, an MRI, and a steroid injection); Hooper v.
Sec’y of Health & Hum. Servs., No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20,
2019) ($185,000.00 awarded for pain and suffering—over three-year course plus steroid
injections, physical therapy, and prescription narcotic pain medication); Reed v Sec’y of Health &
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Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding
$160,000.00).
Notably, the sums awarded in these cases are less than what Petitioner requests, however.
And other than tallying up the total number of PT and doctor’s visits he experienced, along with
emphasizing the comprehensive nature of the surgical procedure he underwent, Petitioner has not
provided any comparable case in which a similarly-situated claimant who incurred a SIRVA
received more than $200,000.00 for actual pain and suffering.
For the future component of pain and suffering, Petitioner argues that his symptoms persist
to this day (and presumably are likely to continue onward). Br. at 31. He references in support
another decision from several years ago, Curri v. Sec’y of Health & Hum. Servs., No. 17-432V,
2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). That claimant received a future component
pain and suffering award of $550.00 per year (reduced to present value to the total sum of
$10,254.11). Curri, 2018 WL at *6–7. However, the Curri petitioner (a young mother) had
received written medical evaluations concluding that additional treatment (which featured surgery)
could not assist her, leaving her with a permanent “scheduled loss of use” of 22.5 percent of her
left arm. Id. at *2. Petitioner nevertheless maintains that an award of more than $20,000.00 is
appropriate (although he does not provide a calculation for the total sum’s reduction to net present
value—and therefore it is not clear whether the sum is a gross or net figure).
Respondent’s Argument
Respondent (perhaps in recognition of my observation in numerous SPU cases that SIRVA
claims involving an invasive surgery procedure—as here—should generally result in a pain and
suffering award in the six figures) cites a number of factors specific to this case to justify his
proposed $115,000.00 award. For example, he notes that the record shows that as of December
2016, Petitioner had already made the determination to sue on his injury. Opp. at 2. Petitioner
otherwise continued to work for Revels from the date of vaccination into December 2016, and
initially characterized his pain as moderate. Ex. 5 at 1–3. And his decision that same month to
cease working was unilateral, and not based upon the advice of a medical professional. Ex. 27 at
256.
Thereafter, early treatment of Petitioner’s symptoms revealed moderate pain and no
identifiable issues on imaging. Opp. at 3–4. An occupational health evaluation5 received by
Petitioner in January 2017 led to him being authorized for work, albeit with lifting and other
physical restrictions, and recommendations for conservative treatment overall. Id. at 4–5.
Nevertheless, Petitioner began to report other daily life limitations, and the PT he began that winter
5
Petitioner did make a workers’ compensation claim for his injury, but has represented that it was denied because it
was not deemed work-related. Ex. 35 at 4.
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was concluded in April 2017 due to lack of progress. Id. at 6. Petitioner continued to complain of
mild pain and range of motion limits in 2017, but a lack of imaging confirmation of his injuries
resulted in no treater recommendations for more intrusive medical interventions. Id. at 6–10.
By the spring of 2018 (now 18 months since vaccination), Petitioner reported that he was
doing much better after some additional PT sessions, and he was provided medical authorization
to return to work with no restrictions. Opp. at 10. However, his symptoms re-emerged after pushing
open a door in May 2018, and he was now deemed an appropriate candidate for a surgery to treat
subacromial bursitis. Id. at 11. The record thereafter shows improvement from surgery—and
although Petitioner had personal misgivings about his capacity to work, treaters suggested he was
likely to see additional improvement with PT. Id. at 12; Ex. 26 at 29–32 (August 2019 record from
orthopedic visit). After another significant gap (January 2020 to September 2021) Petitioner began
seeking treatment again for worsened symptoms. Id. at 13. But his complaints were not confirmed
with additional imaging, and in May 2022 was again deemed able to work. Opp. at 14.
Given the foregoing, Respondent maintains that a lower pain and suffering award is
merited. The record shows Petitioner tolerated his injury for several weeks before seeking
treatment. Opp. at 18. And although he did ultimately require surgery, he experienced a good
recovery overall. Id. at 19. For comparable cases, Respondent cites two determinations from the
SPU “Motions Day” context. See Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022
WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 in surgery case); Shelton
v. Sec’y of Health & Hum. Servs., No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21,
2021) (awarding $97,500.00). He also argues that Petitioner’s comparable cases are
distinguishable, noting that the two featuring higher awards (Reed and Hooper) were not issued in
the context of my effort through “Motions Day” SIRVA adjudications to systematize pain and
suffering awards. Opp. at 20–21.
Analysis
In this case, there is a more than $100,000.00 “gap” between the parties’ pain and suffering
demands—but the actual range is far more narrow, once each side’s demands are scrutinized.
Respondent for his part cites two pain and suffering determinations, Hunt and Shelton, that I have
previously noted on several occasions stand as outlier determinations, and rare instances of
deviating from the above-$100,000.00 “norm” for SIRVA cases involving surgery. Kestner v.
Sec’y of Health & Hum. Servs., No. 20-0025V, 2023 WL 2447499, at *6 (Fed. Cl. Spec. Mstr.
Mar. 10, 2023). Indeed, Respondent’s own offered sum exceeds these awards.
Petitioner, however, has not persuasively defended his requested figure either. Hooper and
Reed were not decided in connection with my effort via “Motions Day” to generate a body of
determinations that could provide litigants with reasonable illustrations of the kind of awards
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appropriate in comparable SIRVA cases. The other two cases, however, are not only more recent
determinations, but stand as better comparable cases. Although, I note that Peterson and Lagle
were also not rendered in the contexts of a “Motions Day” hearing.
Here, I find that both of these decisions are good comparable adjudications, and stand as
fair exemplars for what a reasonable, actual pain and suffering award should be in this case. I
determined that the Peterson petitioner experienced a relatively mild injury, yet one still requiring
surgical intervention. 2023 WL 3591166, at *10. Moreover, based on that petitioner’s moderate
restrictions in ROM and pain, coupled with the length of time between vaccination and surgery, I
found that an award of $130,000.00 for actual pain and suffering represented a fair and appropriate
amount. Id. at *11. In Lagle, the special master held that the petitioner “demonstrated that his
initial pain was severe, but the records show that post-surgery his pain symptoms had decreased
and range of motion had improved” 2023 WL 3035370, at *8. There, the petitioner also had an
approximate five-year gap in treatment and was ultimately awarded $130,000.00 for his actual
pain and suffering. Thus, as the instant case also involved surgery, but which featured overall
conservative treatment, moderate pain overall, and some delay in initially seeking treatment, an
award of $130,000.00 is fair.
The request for a future component, however, is far less well-substantiated. I generally
have not included a future component in pain and suffering awards in SIRVA cases absent clear
(and persuasive) record proof of a permanent disability or limitation—as Curri illustrates. Curri,
2018 WL 6273562 at *2; Smith v. Sec’y of Health & Hum. Servs., No. 19-1384V, 2022 WL
3012503, at *7 (Fed. Cl. Spec. Mstr. June 29, 2022) (finding a future pain and suffering component
is justified primarily because petitioner’s treating orthopedist diagnosed petitioner with a
permanent post-surgical disability resulting from his vaccine injury). No such evidence is to be
found in this record. In addition, there are too many lengthy post-surgery treatment gaps in this
record for me to be able to conclude that preponderant evidence establishes that Petitioner’s
current reported pain and condition is related to a SIRVA which occurred seven years ago. Nor
has Petitioner explained clearly how the figure was calculated, and/or what it would be if reduced
to net present value. And the restoration of his job (which I already found he could not perform
closer-in-time to the start of the SIRVA) undercuts the contention of long-lasting and impairing
sequelae. Accordingly, no future pain and suffering component is justified based on Petitioner’s
showing.
B. Lost Wages
Petitioner’s Argument
Petitioner spends more time in his brief calculating his lost wage demand than justifying
it. To determine his proposed sum, Petitioner has filed payroll and employment records, W-2 and
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tax statements from 2011 to 2020, a certified itemized statement of earnings from the SSA, as well
as a supplemental affidavit. See generally Exs. 51–60. He measures the actual lost wages
component from January 7, 2017 (when he ceased receiving compensation from Revels) to May
31, 2022 (when he was, purportedly, medically cleared to return to work—although there is
medical record proof that Petitioner received clearance to work as early as the spring of 2018—
even though he underwent surgery only a few months later). Br. at 32; Ex. 15 at 87 (medical record
from 3/2/2018 follow-up orthopedics appointment stating that “letter [was] provided to patient to
return to work with restriction of no overhead lifting”). In effect, Petitioner seems to concede, at a
minimum, that post-May 2022 he was physically able to perform the same tasks he had while
employed by Revels pre-vaccination, and therefore that date constitutes the end-point for any lost
wages calculation (even if he was not formally rehired by Revels until December 2022).
Petitioner thus (based on a rate of $21.75 per hour, and assuming a 40-hour work-week
plus some overtime) calculates he would have received $55,027.00 yearly (from January 2017 to
May 2022) if employed by Revels. Br. at 32. By comparison, at the substitute job he was able to
perform beginning in March-April 2018 (working at an RV park), he earned somewhere between
$27,000.00 and an estimated higher sum (based on a putative entitlement to overtime work) of
$32,850.00. Id. at 33. Relying on these figures, Petitioner has calculated his lost wages for the
2017 to mid-2022 period (subtracting actual wages and overtime from what he could have earned
at Revels) to be $118,965.00. Id. He then offsets the sum with expected tax obligations, reducing
it to $104,040.19. Id. at 33–34. Notably, however, it does not appear Petitioner obtained the
replacement job until the spring of 2018—and hence his lost wages calculation includes a lengthy
period of time in which he not only did not work but did not attempt to work. And there is some
evidence as well that in 2018 Petitioner received some kind of lost wage compensation via his
employer. Ex. 51 at 1; Ex. 61 at 69–75, 129–33.
Respondent’s Argument
Respondent’s refusal to acknowledge that Petitioner should receive any lost wages has
several grounds (although they are set forth in the space of one paragraph). Opp. at 21–22. First,
Respondent contends that Petitioner’s ultimate separation from Revels was not solely due to his
injury, but rather the product of conduct unrelated to his SIRVA (in particular, the failure to
communicate with his employer about his status over time). Id. Second, he purports that Petitioner
did not mitigate his wage loss (although the record does show he accepted alternative
employment). Thus, Petitioner effectively abandoned his worker’s compensation claim, by not
substantiating it despite due opportunity. Id. at 22, citing Ex. 27 at 256, 322. He also possessed
disability insurance in the relevant timeframe, but has not filed evidence in this case substantiating
whether he in fact received payments that might offset compensation losses. Respondent otherwise
provides no comment on Petitioner’s methodology for calculation of lost earnings in this case.
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Petitioner’ Reply
To bulwark the lost earnings demand, Petitioner cited additional evidence from the record,
including some documents not discussed in his initial brief. See generally Reply at 5–12. He
references evidence from Revels, for example, acknowledging the need for work accommodations
during the relevant period. Id. at 5. And although in the spring of 2017 the need for medical
clearance before Petitioner began working again was noted (Ex. 11 at 23), he did not receive full
medical clearance before May 2022 (although there is earlier record evidence calling that date into
doubt), and also that thereafter Revels readily rehired him once such clearance was provided. Id.
at 5–6. As far as damages mitigation goes, he emphasizes that he did work for most of the relevant
timeframe (except January 2017 to March 2018—a period for which he does demand lost wages).6
In addition, Petitioner explains that his worker’s compensation claim was not fully pursued
mainly because he determined that the vaccination at issue (which elsewhere in his pleadings he
deemed an employment obligation) was also for his own health, rendering it not “work-related,”
and thus the fact the worker’s compensation claim was not ultimately pursued cannot reasonably
be held against him. Reply at 6–7. For his disability insurance payouts, Petitioner maintains that
the relevant records existed but were not filed while entitlement was pending. Id. at 7. He has since
filed them, however, and he notes he received only $3,030.59 for short-term disability pay (offset
by attorney’s fees paid to collect the sum), but was otherwise denied all long-term disability pay
except for three weeks in April 2017, in the amount of $1,349.00. Id. at 8. He adds that the claim
was advanced and resolved before his 2018 surgery (which arguably would have corroborated the
claim more convincingly). Id.
Otherwise, Petitioner asserts that even full payments of short or long-term disability sums
would not have mitigated wholly his lost wages. Reply at 9. Rather, the policies would have
entitled him to no more than 60 percent base pay, with no provision for overtime, leaving more
than eighty percent of the demanded sum still available. (It otherwise does not appear, however,
that Petitioner’s lost wage demand sum as set forth in the Reply has been reduced by the disability
sums he acknowledges he did in fact receive). But he offers a recalculation of his wages claim
based on some of these acknowledged offsets, reducing the total claim to $86,232.39. Id. at 12.
Analysis
Despite its facially-simple calculation of “potential wages minus actual wages,”
Petitioner’s lost earnings demand is difficult to parse and not completely well-substantiated –
especially given the record evidence. That record suggests that Petitioner made a unilateral
6
Petitioner specifically maintains in the Reply that he is “not claiming any lost wages that he could have mitigated”
(Reply at 6)—and yet his lost damages calculations includes the period of time he did not work at all, without any
showing that he could have earned some employment compensation of some kind in this timeframe.
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decision in December 2016 to stop working at Revels. Admittedly, that choice has some common-
sense character to it given the nature of his work (and indeed, in finding entitlement I did determine
the presence of record evidence suggesting Petitioner was then experiencing enough pain to cause
him to be unable to perform his duties that fall). Entitlement Ruling at 7, 8. Yet it is wholly unclear
from this record as well that Petitioner could not work due to the SIRVA, or that no alternatives
were available to him at Revels. His claim of complete work-related impairment is not backed up
with sufficient treater opinion evidence to corroborate the putative physical deficiency. And even
if I simply assumed his beliefs about his capacity were true, there is no expert evidence in this case
showing what the actual work Petitioner could have performed was.
Accordingly, it is difficult at the outset to determine, at a minimum, what lost earnings he
should receive for at least the January 2017 – May 2018 timeframe. He cannot assume that the
“best” he could have done was the RV job he began in the spring of 2018, and he has offered no
expert evidence to substantiate this. (In fact, the calculations are provided only in Petitioner’s own
declaration—an especially unpersuasive way to substantiate a lost wages claim, given their
inherent complexity). In addition, Petitioner has not offset his claim for this period with the two
disability payments her received.7 At best, Petitioner can compare his actual earnings at the RV
park with what he would have expected to make at Revels, through the time in May 2022 when he
was at least capable of being rehired, based on a medical evaluation he received at that time. Again,
however—he cannot and has not shown that his actual work was the best for which he was able.
In addition, the calculation provided includes no offsets, although his Reply does seem to allow
for them.
As previously mentioned, Petitioner has offered his own witness statements detailing the
impact his injury purportedly had on his ability to function day-to-day in a work environment, as
well as the purported calculations for his “top salary as a non-radiological machine installer.” But
I do not find that such witness statements or wage loss narratives aid in the filling of the clear
evidentiary gaps presented herein. These evidentiary gaps needed instead to be addressed by
persuasive testimony from a vocational specialist, but Petitioner has not offered such an expert,
despite more than a reasonable opportunity to do so.8 In many vaccine cases, petitioners have
7
Respondent’s argument that Petitioner abandoned a potential worker’s compensation claim is not meritless either.
But based on the record as provided, I cannot discern if the claim should be deemed as unreasonably abandoned or
unlikely to succeed. Regardless, it remains a petitioner’s burden to substantiate his lost earnings claim—and the
existing record does not justify his total decision to go without employment for approximately eighteen months, even
if he is correct that he was unable to fully perform his tasks at Revels.
8
As mentioned previously, this claim was initiated July 2019, and in November 2022, I issued a Ruling on
Entitlement, finding Petitioner entitled to damages. Thereafter, I directed the parties to file a Joint Status Report
indicating the categories of damages that have been agreed upon, and any that remain undecided at that time. See
Scheduling Order, dated Dec. 6, 2022. On March 31, 2023, the parties filed their Joint Status Report, and I
subsequently ordered the parties to file an additional Joint Status Report either proposing a briefing schedule on the
issue of damages or indicating their wish to have a damages hearing instead. See Scheduling Order, dated Apr. 24,
2023. A briefing schedule was set on April 26, 2023. See Scheduling Order, dated Apr. 26, 2023.Thus, Petitioner has
11

Case 1:19-vv-01047-UNJ Document 134 Filed 04/23/24 Page 12 of 12
utilized vocational experts to establish their inability to work post-vaccination injury at the same
level as before. See e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2022 WL
10469047, at *11 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (citing Petronelli v. Sec’y of Health & Hum.
Servs., No. 12-285V, 2016 WL 1085455, at *2 (Fed. Cl. Spec. Mstr. Feb. 22, 2016) (discussing
opinion from the petitioner’s vocational expert that given petitioner “physical and mental
limitations noted in the record, it seemed ‘unlikely’ that petitioner would be capable of maintaining
gainful employment on either a part-time or full-time bases.”). Here, no such evidence has been
offered.
Therefore, I find that Petitioner has failed to adequately substantiate the notion that his
“earning capacity has been impaired by reason of … his vaccine injury” as required by Section
15(a)(3)(A). Petitioner’s calculations are simply too speculative—both in proposing what his “top
salary” as a non-radiological machine installer would be, and also in setting a “floor” by
establishing the highest wage he could have earned during the relevant time period. As such, the
calculations contained in his own witness statements do not meet the “generally recognized
actuarial evidence and projections” standard set forth by Section 15(a)(3)(A). Petitioner has had
ample time to employ an expert to further assist him in the required showing but has not done so.
Thus, the record lacks preponderant support for an award of lost wages/earnings, and no
such award will be permitted.
CONCLUSION
Based on the entire record in this case, I find that Petitioner is entitled to the following
damages components: (a) $130,000.00 in actual pain and suffering, and a Medicaid lien sum in the
amount of $6,342.93. On or before April 5, 2024, Petitioner will file a statement indicating the
address to which the Medicaid lien sum shall be paid, and I will thereafter issue a damages
decision.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
had almost a year to substantiate this aspect of his claim with the relevant expert input.
12

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DOCUMENT 3: USCOURTS-cofc-1_19-vv-01047-2
Date issued/filed: 2024-04-29
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 04/01/2024) regarding 131 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01047-UNJ Document 135 Filed 04/29/24 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1047V
* * * * * * * * * * * * * * *
DARREL LAURETTE, * Chief Special Master Corcoran
*
Petitioner, *
* Filed: April 1, 2024
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Bruce W. Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.
Camille Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 18, 2019, Darrel Laurette filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges he suffered a
left Shoulder Injury Related to Vaccine Administration following receipt of an influenza vaccine
on October 21, 2016. Petition (ECF No. 1) at 1. On March 25, 2024, I issued Findings of Fact and
Conclusions of Law Regarding Damages, and therein determined that Petitioner was entitled to
certain damages components: $130,000.00 in actual pain and suffering, plus funds sufficient to
satisfy a Medicaid lien in the amount of $6,342.93. See Findings of Fact and Conclusions of Law,
dated Mar. 25, 2024 (ECF No. 129) (“Initial Findings”). I subsequently ordered Petitioner to file
a statement indicating the address to which the Medicaid lien sum shall be paid. The necessary
documentation has now been filed.
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:19-vv-01047-UNJ Document 135 Filed 04/29/24 Page 2 of 2
Accordingly, for all of the reasons discussed in the Initial Findings, and based on
consideration of the record as a whole, I hereby award Petitioner the following:
(1) a lump sum payment of $130,000.00 for actual pain and suffering, in the form of a
check payable to Petitioner; and
(2) a lump sum payment of $6,342.93, representing compensation for satisfaction of the
Medicaid lien, payable jointly to Petitioner and:
Colorado Department of Health Care Policy and Financing
Attn: HMS Colorado Subrogation
333 West Hampden Avenue, Suite 425
Englewood, CO 80110
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.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 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.
2