VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01150
Package ID: USCOURTS-cofc-1_19-vv-01150
Petitioner: Richard Parsons
Filed: 2019-10-28
Decided: 2024-01-02
Vaccine: influenza
Vaccination date: 2017-10-23
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 91416

AI-assisted case summary:
Richard Parsons filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a left shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on October 23, 2017. The primary dispute in the case was whether Mr. Parsons experienced the onset of his shoulder pain within 48 hours of vaccination, a requirement for a Table SIRVA claim. Mr. Parsons asserted that he developed pain within two hours of the injection, while the Respondent argued that the absence of shoulder pain noted in a medical record from October 25, 2017, indicated a later onset. The court found that while the October 25th record was silent, subsequent medical records and affidavits consistently supported an onset within 48 hours, and that all other SIRVA criteria were met. Entitlement was granted. The case then proceeded to determine damages. Mr. Parsons sought $95,000 for pain and suffering, citing a similar case, Accetta, and emphasizing the five-year duration of his symptoms and impact on his work as a veterinarian and farm operator. The Respondent proposed $55,000, arguing that Mr. Parsons' course of injury was mild, characterized by significant treatment gaps and limited formal therapy. The court awarded Mr. Parsons $90,000 for pain and suffering and $1,416.18 for unreimbursable expenses, totaling $91,416.18, finding his injury to be of notable duration despite treatment gaps, and comparable to the Accetta case but slightly less severe.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01150-0
Date issued/filed: 2022-11-29
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/28/2022) regarding 38 Ruling on Entitlement, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1150V
UNPUBLISHED
RICHARD PARSONS, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Ruling on
HUMAN SERVICES, Entitlement; Table Injury; Onset;
Influenza (Flu) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
Matthew F. Belanger, Faraci Lange LLP, Rochester, NY, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On August 8, 2019, Richard Parsons filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a left shoulder injury related to vaccine
administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on October
23, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 Because this unpublished Ruling 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 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, 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 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 2 of 11
For the reasons discussed below, I find that Petitioner can establish onset
consistent with the SIRVA claim’s requirements, and that Petitioner is otherwise entitled
to compensation.
I. Relevant Procedural History
Following the initial status conference on October 16, 2019, Respondent was
directed to determine his position in this case. Scheduling Order, issued Oct. 16, 2019
(ECF No. 13). But Respondent repeatedly over the next eleven months requested
extensions to do so (ECF Nos. 14, 19, and 21), citing high case volume, budgetary
constraints, and restrictions on hiring as justifications for the additional time (ECF No. 19).
Finally (and sixteen months after the petition was filed), on November 16, 2020,
Respondent indicated an interest in pursuing a litigative risk settlement. Respondent’s
Status Report, filed November 16, 2020 (ECF No. 22). Thereafter, the parties engaged in
settlement discussions, but reached an impasse by April 2021. Petitioner’s Joint Status
Report, filed April 9, 2021 (ECF No. 27).
On May 25, 2021, Respondent filed his Rule 4(c) Report (ECF No. 28). In it,
Respondent argued that Petitioner could not establish that the onset of his shoulder pain
occurred within 48 hours of vaccine administration. Respondent’s Rule 4(c) Report at 8.
Respondent raised no other objections to a Table SIRVA claim. Id. at 8-9. Following a
telephonic status conference on July 13, 2021, Petitioner filed additional evidence
concerning the onset of his symptoms on August 9, 2021 (ECF Nos. 29-32). On
September 8, 2021, Respondent filed a status report stating that his position in this case
remained unchanged, and that he was amenable to resolving the disputed onset concern
on the record without a hearing and did not intend to file additional evidence (ECF No.
33).
On October 25, 2021, Petitioner filed a motion for a fact ruling and a ruling on the
record that he is entitled to compensation (ECF No. 35). Respondent opposed the motion
on December 9, 2021 (ECF No. 36), and Petitioner replied on December 13, 2021 (ECF
No. 37). The issues of the onset of Petitioner’s shoulder pain and Petitioner’s entitlement
to compensation are now ripe for determination.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 3 of 11
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
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 the 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
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human 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). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must
establish that he or she suffered an injury meeting the Table criteria, in which case
3 In summary, a petitioner must establish receipt of a vaccine covered by the Program, administered either
in the United States and its territories, or in another geographical area but qualifying for a limited exception;
that residual effects of the injury continued for more than six months (or meet the severity requirement in
other ways not applicable in this case); and no civil suit has been filed and no award or settlement has
been collected for the injury. See Section 11(c)(1)(A)(B)(D)(E).
3

Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 4 of 11
causation is presumed, or an injury shown to be caused-in-fact by the vaccination
received. Section 11(c)(1)(C).
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 Qualifications and Aids to Interpretation
(“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
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).
B. Relevant Factual History
The factual dispute in this case is narrow, and involves only whether Petitioner’s
left shoulder pain began within 48 hours of vaccine administration.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 5 of 11
1. Medical Records
On October 23, 2017, Petitioner received the flu vaccine intramuscularly in his left
arm. Ex. 2 at 2. Two days later, on October 25, 2017, Petitioner was seen by physician
assistant (“PA”) Christine Rodgers at Churchville Family Medicine, his primary care
provider (“PCP”), to follow up on an October 9, 2017 emergency department (“ED”) visit
for chest pain. Ex. 3 at 41. PA Rodgers noted that Petitioner’s labs and EKG were
checked at the ED and were found to be normal, and that the chest pain had resolved in
24-48 hours. Id. The review of systems section of the record does not contain any positive
reports, and does not contain any indication that musculoskeletal symptoms were
reported. Id. The examination section does contain a musculoskeletal note but states only
“[w]alks with a normal gait.” Id. at 42. The record is silent on any arm or shoulder
concerns. Id. at 41-43. Petitioner was assessed with chest pain that resolved after three
days and hyperlipidemia, which was not a new concern. Id. at 42-43.
On November 6, 2017, Petitioner returned to Churchville Family Medicine, where
he was seen by Dr. Christopher Khamphoune, and now reported left shoulder pain for
two weeks. Ex. 3 at 140-141. Petitioner specifically stated that the pain “started after his
flu vaccine given at Wegmans.” Id. at 140. The record includes a note “2wks ago
Wegmans flu shot still has issues with shoulder pain non stop since flu shot.” Id. On
examination, his left shoulder exhibited normal active and passive range of motion
(“ROM”) and no masses, erythema, swelling, warmness, or skin lesions. Id. at 141.
Petitioner was assessed with left shoulder pain of unclear etiology. Id. He was advised to
try non-steroidal anti inflammatory medications, and to be seen by an orthopedist if the
pain worsened or did not improve in 1-2 weeks. Id. The only referral made was to an
orthopedist for “severe left shoulder pain.” Id.
On November 27, 2017, Petitioner was seen by orthopedist Dr. John Gibbs for left
shoulder pain. Ex. 7 at 1. Petitioner reported that he had a flu shot at Wegmans on
October 23, 2017, and “has had ongoing pain that has not improved.” Id. Petitioner
reported that he had no preexisting left shoulder problems, and that his left shoulder was
fine prior to the injection. Id. On examination, Petitioner’s left shoulder had “mild
tenderness at the region he reports was the injection site.” Id. at 2. His left shoulder
demonstrated “good range of motion about the elbow, wrist and hand.” Id. Dr. Gibbs
documented Petitioner’s left shoulder active ROM in forward flexion as 170 (compared to
175 on the right), and abduction as 150 (compared to 175 on the right). Id. Petitioner was
assessed with left shoulder pain. Id. Dr. Gibbs explained that the treatment options
included injection, physical therapy, continued conservative measures with ice and anti-
inflammatories, and further imaging. Id. Dr. Gibbs and Petitioner decided to proceed with
an MRI. Id.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 6 of 11
On December 20, 2017, Petitioner underwent a left shoulder MRI. Ex. 5 at 2. The
MRI revealed mild teres minor tendinosis with subjacent posterior humeral head marrow
edema and trace overlying intermuscular fluid, as well as mild osteoarthritis. Id. Petitioner
then returned to orthopedist Dr. Gibbs on December 28, 2017. Ex. 4 at 4. Dr. Gibbs
reviewed the MRI findings and strongly recommended physical therapy. Id.
On January 10, 2018, Petitioner underwent a physical therapy initial evaluation of
his left shoulder. Ex. 6 at 27. The record indicates the onset of his injury as October 23,
2017, and indicates that Petitioner reported shoulder pain after a flu shot received that
same date. Id. Petitioner continued physical therapy for eight visits through March 21,
2018. Id. at 3-25.
Petitioner returned to Dr. Gibbs for a follow-up appointment on April 30, 2018. Ex.
4 at 28. On examination, Petitioner’s left shoulder active forward flexion was 160 degrees,
with active abduction to 100 degrees, compared to 175 degrees for both on his right side.
Id. Impingement signs were mildly positive at 90 degrees of forward flexion and abduction.
Id. Petitioner was assessed with left shoulder pain. Id. The record indicates that Petitioner
had some residual pain and continued to do his home exercise program. Id. Petitioner
returned to his primary care physician reporting pain and requesting another MRI in
February 2019. Ex. 3 at 204.
2. Affidavits
Four affidavits were filed in support of Petitioner’s claim, including two from
Petitioner. Exs. 1, 9, 10 and 11. Petitioner avers that he developed a “throbbing pain at
the injection site” within two hours of receiving the October 23, 2017 flu vaccine. Ex. 1 at
¶ 5. He asserts that the pain was from the shoulder joint rather than the deltoid muscle,
and progressed over several days to a sharp, stabbing pain with intense burning. Id. He
stated that as the pain progressed, his left shoulder ROM was affected. Id.
Petitioner explains that although his pain was intense, he did not think it was
abnormal and expected it to alleviate with time. Ex. 1 at ¶ 6. When it did not, he sought
treatment on November 6, 2017. Id.
In his supplemental affidavit, Petitioner avers that when he was seen at his PCP’s
office on October 25, 2017, he mentioned his left shoulder pain to the PA he saw that
day. Ex. 11 at ¶ 5. He states that his recollection is that they discussed that the pain
should go away with time and there was nothing to worry about. Id.
Jacob Parsons, Petitioner’s son, also filed an affidavit. Ex. 9. He states that he is
a pharmacist at a Wegman’s Pharmacy, and in October 2017 was in his second year of
a college pharmacy program. Id. at ¶ 2. He saw Petitioner on the day of the flu shot,
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 7 of 11
October 23, 2017, and recalls Petitioner telling him that the pharmacist placed the needle
too high on Petitioner’s shoulder and may have injected the vaccine into the bursa rather
than the deltoid muscle. Id. Jacob Parsons states that he recalled seeing that the band-
aid covering the vaccine injection site was very high up on Petitioner’s left shoulder near
the AC (acromioclavicular, or shoulder) joint. Id.
Marla Parsons, Petitioner’s spouse, also filed an affidavit on Petitioner’s behalf.
Ex. 10. She explains that she received a flu shot at the same clinic as Petitioner. Id. at
¶¶ 1-2. She recalls that Petitioner told her the vaccine was given high on his left shoulder,
and that he showed her the band-aid, which was close to the top of his arm. Id. at ¶ 3.
Later that evening, Petitioner complained to her of left shoulder pain that was more than
he expected from a flu shot. Id. at ¶ 4. The next day, he continued to complain of pain,
which concerned her. Id. She avers that she encouraged Petitioner to mention his left
shoulder pain at the October 25, 2017 PCP appointment, and when he got home
afterward, he told her that the PA did not seem to take his shoulder complaints seriously,
telling him the pain would go away with time. Id. at ¶ 5.
C. The Parties’ Arguments
Petitioner argues that the contemporaneous medical records, corroborated by
affidavit evidence, support a finding that the onset of his shoulder pain occurred within 48
hours of vaccine administration. Petitioner acknowledges that sworn testimony alone is
not sufficient to prove onset. However, Petitioner asserts that the affidavit evidence in this
case is corroborated by medical records. Of particular importance to Petitioner is the
November 6, 2017 record, two weeks after vaccination, indicating that Petitioner reported
“shoulder pain non-stop since a flu shot” two weeks earlier, Ex. 3 at 140. Mot. at 8.
Petitioner also cites his first orthopedic visit on November 27, 2017, where he
reported that his pain started with a flu shot on October 23, 2017, and that he had ongoing
pain. Ex. 7 at 1. Overall, Petitioner asserts that the medical records and sworn testimony
consistently reflect that his shoulder pain began at the time of his October 23, 2017 flu
shot.
Petitioner asserts that the October 25, 2017 record’s silence on his left shoulder
pain does not negate his claim. Petitioner cites Section 13(b)(2) of the Vaccine Act, which
states that a special master may find that the first symptom or manifestation of onset
occurred within the time period described in the Vaccine Injury Table even though the
occurrence of such was not recorded or was incorrectly recorded, if a preponderance of
the evidence demonstrates that the onset did in fact occur within that time period. Mot. at
10-11. Petitioner asserts that this is not a situation where Petitioner was asked about and
denied left shoulder pain, or even where the medical record contradicts Petitioner’s
testimony. Instead, the record is silent.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 8 of 11
Finally, Petitioner asserts that, if the court rules in his favor on the onset issue, the
court should also find entitlement in his favor. Mot. at 13. Petitioner asserts that the sole
objection to entitlement in the Rule 4(c) Report is onset.
Respondent maintains that the evidence does not support a finding that the onset
of Petitioner’s shoulder pain occurred within 48 hours of vaccination. Respondent cites
Petitioner’s October 25, 2017 appointment with his PCP, the record of which is silent on
left arm or shoulder pain. Respondent asserts that the purpose of this medical visit was
to “assess a longstanding cardiac condition.” Opp. at 2. Respondent asserts that if
Petitioner had any shoulder pain during that visit, “it would have most likely been
documented thoroughly in the records given that left shoulder pain is one of the most
common symptoms heralding cardiac issues in men.” Id. In support of this contention,
Respondent cites an article located at www.mayoclinic.org. Id. at n.2.
With respect to later medical records concerning onset, Respondent argues that
“the notations in these records reflect histories reported by petitioner, and are thus based
on the claims of petitioner himself.” Opp. at 2. Respondent similarly discounts the
affidavits submitted on Petitioner’s behalf. Id. at 2-3.
Respondent argues that Kirby does not aid Petitioner because in this case, there
is no compelling reason for petitioner’s silence at the October 25, 2017 appointment. Opp.
at 4. Respondent argues that if Petitioner had shoulder pain at the time of that
appointment, because it is a well-known symptom that can indicate an underlying cardiac
issue, “it is highly likely that the medical note would have documented and fully evaluated
any reported shoulder pain.” Id. Because this was not done, Respondent concludes that
“it is very likely that petitioner did not have left shoulder pain on this date.” Id.
In his reply, Petitioner asserts that Respondent ignores overwhelming record
evidence, including a medical visit just 14 days after vaccination reporting shoulder pain
since vaccination. Reply at 1. With respect to Respondent’s assertion that the medical
records documenting left shoulder pain as beginning after the October 23, 2017 flu
vaccine reflect histories reported by Petitioner and thus are based on the claims of
Petitioner himself, Petitioner responds:
This is true in every SIRVA case because the first symptom of SIRVA is
pain. There is no pathognomonic4 test for pain and as such, in SIRVA cases,
whether the first complaint is within 48 hours or not, the initial evidence is
usually a medical record recording a subjective complaint of pain. If this
Court were to adopt Respondent’s position that such evidence is insufficient
4 Pathognomonic refers to a “specifically distinctive or characteristic of a disease or pathologic condition; a
sign or symptom on which a diagnosis can be made.” Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=37212&searchterm=pathognomonic (last visited
Oct. 28, 2022.
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 9 of 11
to prove onset of symptoms, it would be impossible to establish onset in a
SIRVA case.
Petitioner’s Reply at 2.
D. Factual Finding Regarding QAI Criteria for Table SIRVA
Respondent objects only to the second SIRVA QAI requirement, arguing that there
is not preponderant evidence that the onset of Petitioner’s alleged SIRVA occurred within
48 hours, the time set forth in the Table. The other SIRVA QAI criteria are uncontested.
Several records support a finding that Petitioner’s shoulder pain began within 48
hours of vaccine administration. At the November 6, 2017 appointment, Petitioner
reported “shoulder pain non stop since flu shot” two weeks earlier. Ex. 3 at 140. Similarly,
at Petitioner’s first orthopedic appointment, he related his pain to the flu shot given on
October 23, 2017, and reported ongoing pain that had not improved. Ex. 7 at 1. His
physical therapy records have an onset date of October 23, 2017, and indicate that his
pain began after a flu shot on that date. Ex. 6 at 27.
I do not agree with Respondent’s suggestion that notations in medical records
concerning onset should be discounted because they are histories reported by Petitioner.
Contemporaneous medical records, including information supplied to or by health
professionals for purposes of diagnosis and treatment, warrant consideration as
trustworthy evidence. Cucuras, 993 F.2d at 1528. In this case, I find that the
contemporaneous medical records containing Petitioner’s reports to treating providers of
his pain, and the providers’ diagnoses and treatment recommendations, are credible and
relevant evidence.
Respondent does not contest that there are multiple medical records supporting a
finding of onset within 48 hours, and has not cited any records that specify a different date
of onset. Rather, Respondent’s position is based solely on the fact that the October 25,
2017 record is silent on left shoulder or arm problems, which Respondent infers means
that Petitioner was not experiencing left shoulder pain on that date. Respondent asserts,
based on an article found on the mayoclinic.org website, that left shoulder pain is a
common symptom of cardiac symptoms in men. From this, Respondent infers that if
Petitioner had mentioned left shoulder pain at the October 25, 2017 appointment, it would
have been documented thoroughly.
Respondent is correct that the October 25th record is the closest in time to vaccine
administration, and thus is the “most” contemporaneous record, entitling it to some
weight. Respondent has also offered a reasonable explanation for why that appointment
might have been a fair opportunity for Petitioner to note arm pain – since such pain could
9

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bear on cardiac issues. This is not a case where an intervening medical visit silent on
post-vaccination pain involved a specialist to whom an injured party would not be
expected to report that symptom.
Nevertheless, the overall record supports Petitioner’s onset contention – for
several reasons. First, and as I have noted, ample subsequent records that are not all
that less contemporaneous than the October 25th record support a Table onset. Indeed,
the very next record after the October 25th record says so, and nothing that comes after
is contrary. Second, there are persuasive witness statements also consistent with the
contended onset.
Finally, Respondent’s arguments about the nature of the October 25th treatment
event must also be considered in the context of Petitioner’s treatment history. Even
though it is true, as Respondent argues, that the arm pain might logically have been
reported in context of a cardiac issue, the record shows it was reported at the very next
visit - two weeks after vaccination, on November 6, 2017. But there is no indication that
Petitioner’s provider considered his left shoulder pain a potential sign of a cardiac issue
at this visit. Ex. 3 at 140. It is not noted in the cardiovascular review of symptoms or
examination sections. Id. at 140-141. His provider did not recommend that Petitioner
undergo any cardiac evaluation; rather, he directed Petitioner to follow up with an
orthopedist if the pain did not improve. Id. at 141. Thus, even if left shoulder pain is a
common presenting sign in men experiencing cardiac problems, the record suggests that
in this case, Petitioner’s provider did not view his pain as raising cardiac concerns even
after it was reported. Rather, the record suggests that he considered it an orthopedic
issue, and referred Petitioner to an orthopedist.
As a result, the significance of the omission of pain complaints on October 25th is
not as great as Respondent argues. Indeed, it is understood in the Program that a medical
record’s silence on a matter does not establish its non-existence. Kirby, 997 F.3d at 1383.
And I have observed in prior cases that it is unsurprising the SIRVA patients often do not
ascertain the seriousness of their injury close-in-time to vaccination, expecting that pain
will naturally subside. See Allner v. Sec’y of Health & Human Servs., No. 19-1048V, 2022
WL 6962656, at *4 (Fed. Cl. Spec. Mstr. Sept. 9, 2022) (stating “it is not unusual in my
experience adjudicating SIRVA claims that petitioners delay treatment, hoping their
shoulder pain and/or soreness will abate”); Deutsch v. Sec’y of Health & Human Servs.,
No. 18-0527V, 2021 WL 4995076, at *6 (Fed. Cl. Spec. Mstr. Sept. 24, 2021) (finding a
30 day delay in seeking medical treatment to be “not substantial when compared to other
SIRVA petitioners”); Winkle v. Sec’y of Health & Human Servs., No. 20-0485V, 2021 WL
2808993, at *4 (Fed. Cl. Spec. Mstr. June 3, 2021) (“It is common for a SIRVA petitioner
to delay treatment, thinking his/her injury will resolve on its own”). Accordingly, a
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Case 1:19-vv-01150-UNJ Document 40 Filed 11/29/22 Page 11 of 11
preponderance of the evidence supports a finding that Petitioner experienced the onset
of shoulder pain within 48 hours of vaccine administration.
Otherwise, the record contains sufficient evidence showing Petitioner has satisfied
the other QAI criteria. See 42 C.F.R. § 100.3(c)(10)(i) & (iii)-(iv). A thorough review of the
record in this case does not reveal either a prior or other condition or abnormality that
would explain Petitioner’s symptoms, or pain or limited ROM other than in his left
shoulder. Exs. 3, 4, 6, 7. Thus, all elements of a Table SIRVA claim have been
preponderantly established.
E. Other Requirements for Entitlement
Because Petitioner has satisfied the requirements of a Table SIRVA, he need not
prove causation. 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 the 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. Exs. 1, 2, 4.
Conclusion
It is more likely than not that the onset of Petitioner’s pain occurred on the same
day as vaccination. In addition, all other SIRVA Table requirements are met, as are other
requirements for entitlement. Therefore, Petitioner’s motion for a fact ruling on onset and
a ruling on the record that he is entitled to compensation is GRANTED.
In view of the fact ruling herein and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01150-1
Date issued/filed: 2024-01-02
Pages: 14
Docket text: PUBLIC DECISION (Originally filed: 11/30/2023) regarding 52 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. (Main Document 61 replaced on 1/3/2024 to correct a typo in the conclusion of the Decision.) (fm).
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Case 1:19-vv-01150-UNJ Document 61 Filed 01/02/24 Page 1 of 14
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1150V
RICHARD PARSONS, Chief Special Master Corcoran
Petitioner, Filed: November 30, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Matthew F. Belanger, Faraci Lange LLP, Rochester, NY, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 8, 2019, Richard Parsons 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 that he suffered a left shoulder injury related to
vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on
October 23, 2017. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters (the “SPU”).
For the reasons set forth below, I find that Petitioner is entitled to a damages award
in the amount of $90,000.00 for actual pain and suffering, plus $1,416.18 in actual
unreimbursable expenses.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website , and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 (2018).

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I. Relevant Procedural History
Following the initial status conference on October 16, 2019, Respondent was
directed to determine his position in this case. Scheduling Order, issued Oct. 16, 2019
(ECF No. 13). On November 16, 2020, Respondent stated that he was amenable to
informal settlement (ECF No. 22). The parties negotiated, but reached an impasse (ECF
No. 27). After briefing, I determined that the onset of Petitioner’s pain occurred within 48
hours of vaccination, and that Petitioner was entitled to compensation (ECF No. 38). The
parties negotiated, but again were unable to agree on damages (ECF No. 42).
On February 21, 2023, Petitioner filed a damages brief (ECF No. 50). Respondent
reacted on April 5, 2023 (ECF No. 51). The matter of damages is now ripe for resolution.
II. Relevant Medical History
On October 23, 2017, Petitioner received the flu vaccine intramuscularly in his left
arm. Ex. 2 at 2. Two days later, on October 25, 2017, Petitioner was seen by physician
assistant (“PA”) Christine Rodgers at Churchville Family Medicine, his primary care
provider (“PCP”), to follow up on an October 9, 2017 emergency department (“ED”) visit
for chest pain. Ex. 3 at 41. PA Rodgers noted that Petitioner’s labs and EKG were
checked at the ED and were found to be normal, and that his chest pain had resolved in
24-48 hours. Id. The review of systems section of the record does not contain any positive
reports, and does not contain any indication that musculoskeletal symptoms were
reported. Id. The examination section does contain a musculoskeletal note but states only
“[w]alks with a normal gait.” Id. at 42. The record is otherwise silent on any arm or shoulder
concerns. Id. at 41-43. Petitioner was assessed with chest pain that resolved after three
days and hyperlipidemia, which was not a new concern. Id. at 42-43.
On November 6, 2017 – two weeks after vaccination – Petitioner returned to
Churchville Family Medicine, where he was seen by Dr. Christopher Khamphoune and
now reported left shoulder pain for two weeks. Ex. 3 at 140-141. Petitioner specified that
the pain “started after his flu vaccine given at Wegmans.” Id. at 140 (“2wks ago Wegmans
flu shot still has issues with shoulder pain non stop since flu shot”). On examination, his
left shoulder exhibited normal active and passive range of motion (“ROM”) and no
masses, erythema, swelling, warmness, or skin lesions. Id. at 141. Petitioner was
assessed with left shoulder pain of unclear etiology. Id. He was advised to try non-
steroidal anti-inflammatory medications, and referred to an orthopedist for “severe left
shoulder pain.” Id.
Three weeks later (November 27, 2017), Petitioner saw orthopedist Dr. John Gibbs
for left shoulder pain. Ex. 7 at 1. Petitioner reported that he had a flu shot at Wegmans
on October 23, 2017, and “has had ongoing pain that has not improved.” Id. Petitioner
reported that he had no preexisting left shoulder problems and his left shoulder was fine
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prior to the injection. Id. On examination, Petitioner’s left shoulder had “mild tenderness
at the region he reports was the injection site.” Id. at 2. His left shoulder demonstrated
“good range of motion about the elbow, wrist and hand.” Id. Dr. Gibbs documented
Petitioner’s left shoulder active ROM in forward flexion as 170 (compared to 175 on the
right), and abduction as 150 (compared to 175 on the right). Id. Petitioner was assessed
with left shoulder pain. Id. Dr. Gibbs explained that the treatment options included
injection, physical therapy (“PT”), continued conservative measures with ice and anti-
inflammatories, and further imaging. Id. Dr. Gibbs and Petitioner decided to proceed with
an MRI. Id.
On December 20, 2017, Petitioner underwent a left shoulder MRI. Ex. 5 at 2. The
MRI revealed mild teres minor tendinosis with subjacent posterior humeral head marrow
edema and trace overlying intermuscular fluid, as well as mild osteoarthritis. Id. Petitioner
then returned to orthopedist Dr. Gibbs on December 28, 2017. Ex. 4 at 4. Dr. Gibbs
reviewed the MRI findings and strongly recommended PT. Id.
On January 10, 2018, Petitioner attended a PT evaluation of his left shoulder. Ex.
6 at 27. The record lists the onset date of his injury as October 23, 2017, and states that
Petitioner reported shoulder pain after a flu shot received that same date. Id. He described
a burning pain around his left shoulder, with the pain at its worst when sleeping at night.
Id. He was unable to put pressure on his left arm or lean on things, and had increased
pain and difficulty with getting dressed, reaching, lifting, pulling, and his work duties as a
veterinarian. Id. He had been feeling “a little better” recently. Id. On examination, his left
shoulder active ROM was 95 degrees in flexion, 55 degrees in abduction, and 41 degrees
in extension. Id. His passive ROM was 96 degrees in flexion and 68 degrees in both
internal and external rotation. Id. He had positive impingement results on the
Hawkins/Kennedy and Neer tests. Id. at 28. His passive joint mobility exhibited “slight” to
“considerable” restriction. Id. The physical therapist stated that Petitioner had signs and
symptoms consistent with left shoulder capsular hypomobility producing decreased ROM
and pain, and recommended that Petitioner attend PT twice weekly for six weeks. Id.
Petitioner continued PT for a total of eight visits through March 21, 2018. Ex. 6 at
3-25. At his second and third PT visits, he reported soreness but improved ROM. Id. at
21, 24. At the following visit on January 31, 2018, he said he had been sore for a week
after the prior visit, and had decreased ROM, increased edema, and poor tolerance to
exercises. Id. at 18. His active ROM was 86 degrees in flexion and 57 degrees in
abduction. Id. Thereafter, however, his ROM began improving, though it remained
restricted. Id. at 3-15. On February 14, 2018, his passive ROM was 117 degrees in flexion,
55 degrees in external rotation, and 30 degrees in internal rotation. Id. at 12.
Petitioner returned to Dr. Gibbs on February 2, 2018. Ex. 4 at 13. He reported that
PT had helped “moderately,” and that his home exercise program seemed to help. Id.
However, he still had residual symptoms, mainly pain. Id. Dr. Gibbs thought his injury
“may require several months for maximum improvement.” Id. On examination, his left
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shoulder active ROM was 175 degrees in forward flexion and 160 degrees in abduction.
Id. at 16. Dr. Gibbs reviewed the MRI again and noted that Petitioner had “seen
improvement of his range of motion” but had “residual pain.” Id. Dr. Gibbs was optimistic
that Petitioner would have a good result, but warned that he may be left with long term
symptoms including pain. Id. at 16-17. Dr. Gibbs offered a steroid injection, which
Petitioner declined, and told him diagnostic arthroscopy was an option if Petitioner’s
symptoms persisted or worsened. Id. Dr. Gibbs offered the option of seeking a second
opinion with an orthopedic surgeon, but Petitioner wished to hold off on this. Id. For the
time being, Dr. Gibbs recommended that Petitioner continue PT. Id.
At Petitioner’s seventh PT session on February 21, 2018, his passive ROM was
measured at 138 degrees in flexion, external rotation was 50 degrees, and internal
rotation was 58 degrees. Ex.6 at 8. At his final session a month later, he was still “very
sore” and had pain with reaching and use of his left arm. Id. at 3. His passive ROM was
149 degrees in flexion, 74 degrees in external rotation, and 64 degrees in internal rotation.
Id.
Petitioner returned to Dr. Gibbs for a follow-up appointment on April 30, 2018. Ex.
4 at 25. On examination, Petitioner’s left shoulder active forward flexion was 160 degrees,
with active abduction to 100 degrees, compared to 175 degrees for both on his right side.
Id. Impingement signs were mildly positive at 90 degrees of forward flexion and abduction.
Id. Petitioner was assessed with left shoulder pain. Id. The record states that Petitioner
would consider a steroid injection or potential diagnostic arthroscopy, but preferred to
hold off on further treatment for the time being. Id. at 29.
Petitioner did not seek care for his shoulder again until nine and a half months
later, on February 13, 2019, when he returned to his PCP reporting persistent “awful” pain
and decreased ROM, and requesting another MRI. Ex. 3 at 204. He was having difficulty
with certain movements and procedures in his work as a veterinarian. Id. On examination,
he had a tender mass on his left deltoid, and his ROM was limited by pain. Id. at 205.
An ultrasound of Petitioner’s left shoulder was done on March 1, 2019. Ex. 3 at
201. The ultrasound did not show abnormalities, fluid collections, fat necroses, or masses.
Id.
Two months later (May 6, 2019), Petitioner returned to Dr. Gibbs for persistent left
shoulder pain. Ex. 3 at 181. The pain was a “constant ache,” with occasional sharp pain,
and was affecting his daily activities. Id. On examination, his left shoulder active ROM
was 150 degrees in forward flexion and 130 degrees in abduction. Id. at 184. Impingement
signs were “strongly positive” at 90 degrees of forward flexion and abduction. Id. An MRI
was ordered. Id. Thereafter, Petitioner did not receive medical treatment for his shoulder
for the next eighteen months.
A second MRI was done on November 13, 2020. Ex. 12 at 1. It showed tendinosis
(but no tear) of the infraspinatus and subscapularis tendons and an anterior labral tear,
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but no bursal fluid collections. Id. There are no records of treatment for Petitioner’s
shoulder for the next two years.
Two years after his second MRI (December 19, 2022), Petitioner returned to Dr.
Gibbs to follow up on his left shoulder pain. Ex. 16 at 5. He reported a pain level of five
out of ten, with pain affecting his everyday activities. Id. at 8. The pain was “dull and achy,”
radiating, and burning, and he noted weakness as well. Id. He had no significant
improvement with rest, heat, and anti-inflammatory medications. Id. On examination, his
left shoulder active ROM was 165 degrees in forward flexion and 150 degrees in
abduction, with moderately positive impingement signs. Id. at 12. Dr. Gibbs assessed him
with impingement syndrome of the left shoulder, and ordered another MRI,
recommending ice and anti-inflammatory medications as needed for symptom control. Id.
at 13.
On December 28, 2022, Petitioner had a third MRI. Ex. 17. The MRI showed mild
subacromial subdeltoid bursitis and degenerative arthrosis, with an intact rotator cuff. Id.
at 1-2. No further treatment records have been filed.
III. Affidavit Evidence
Petitioner filed six affidavits in support of his claim. Exs. 1, 9, 10, 11, 14, and 15.
Petitioner states that he is a veterinarian, operates a farm with his wife, and is a pastor.
Ex. 15 at ¶ 5. Prior to the October 2017 flu vaccination he was active, running his own
veterinary hospital, managing livestock including large beef cattle, and doing farm work
such as moving heavy feed bags, stacking “hundreds” of bales of hay, cleaning stalls,
repairing fences, and handling most heavy work on his farm. Id. at ¶ 7 He also handled
most basic maintenance tasks for his home, veterinary clinic, and church including snow
removal, lawn maintenance, and other upkeep. Id.
Petitioner developed a “throbbing pain at the injection site” within two hours of
receiving the October 23, 2017 flu vaccine. Ex. 1 at ¶ 5. The pain came from the shoulder
joint rather than the deltoid muscle, and progressed over several days to a sharp, stabbing
pain with intense burning. Id. As the pain progressed, his left shoulder ROM was affected.
Id.
Although his pain was intense, at first he did not think it was abnormal and
expected it to alleviate with time. Ex. 1 at ¶ 6. Instead, it progressed to a sharp and
stabbing pain that prevented him from moving his shoulder through a normal range of
motion. Ex. 15 at ¶ 9. At this point, he knew his symptoms were not normal, so he called
his PCP and was scheduled to be seen on November 6, 2017. Id. at ¶ 10. When he was
seen at his PCP’s office on October 25, 2017, he mentioned his left shoulder pain to the
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PA. Ex. 11 at ¶ 5. Petitioner recalls that they discussed that the pain should go away with
time and there was nothing to worry about. Id.
He stopped PT in March 2018 after eight sessions because he was frustrated that
it had provided only limited relief and was no longer helping. Ex. 15 at ¶¶ 13-14. However,
he continued to do his home exercises. Id. at ¶ 14. At this point, he continued treatment
with Dr. Gibbs and his PCP for a time. Id. at ¶ 15. However, after Dr. Gibbs told him in
April 2018 that he might be left with permanent pain and loss of function, he decided to
continue with conservative measures rather than pursue the “more invasive options of
having surgery or steroid injection.” Id. at ¶¶ 15-16. During this gap in formal treatment,
he continued doing shoulder exercises, using anti-inflammatory pain medication, and
modifying activities in hopes of restoring his activity level to where it was before
vaccination. Id. at ¶ 16.
Despite ten months of conservative measures, his shoulder did not improve, so he
returned to his PCP in February 2019. Ex. 15 at ¶ 17. His PCP ordered an ultrasound,
which was negative. Id. at ¶¶ 17-18. He then returned to Dr. Gibbs, who ordered an MRI.
Id. at ¶ 18. However, initially his insurance “would not authorize another MRI, so I did not
actually have another left shoulder MRI until November 2020.” Id. at ¶ 19. After he finally
had the second MRI, Dr. Gibbs offered shoulder surgery as an option, but Petitioner
“researched outcomes of surgical procedures for adhesive capsulitis and bursitis, and
[was] concerned that such a surgery would side line me for several months or longer with
no guarantee that I would be any better and a chance that I would be worse.” Id. For these
reasons, he decided against surgery. Id.
Petitioner has “constant, nagging left shoulder pain every minute of every day that
gets worse with lifting, reaching away from my body or behind me – all of which are
movements that I must perform every day to perform my work as a veterinarian and to
conduct work at the farm.” Ex. 15 at ¶ 20. His shoulder especially bothers him at night,
when it is difficult to fall asleep and he wakens periodically during the night from pain. Id.
at ¶ 21. Daily activities such as washing his hair, reaching behind his back to get dressed,
or hugging his wife are “daily painful reminders that my left shoulder is not normal.” Id. He
returned to Dr. Gibbs in December 2022 because his shoulder pain was getting worse.
Id. at ¶ 22.
As he approaches retirement, his plan was to build his farm business and continue
it in retirement. Ex. 15 at ¶ 23. Unfortunately, after his shoulder injury he was no longer
able to properly manage and care for a herd of cattle, and it did not make financial sense
to hire someone else to do it. Id. Thus, he sold off the cattle and “dramatically scaled back
the scope of the farm as well as its economic potential,” which has made it difficult to
reach a sales threshold that qualifies the farm for a state property tax reduction. Id.
Petitioner concludes that before the October 2017 flu shot, he was a “very physically
active and relatively healthy man” who ran a thriving veterinary practice and operated a
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farm and church. Id. at ¶ 24. He feels that his left shoulder injury and chronic pain have
“weakened me considerably,” reducing his physical abilities and aging him. Id.
Jacob Parsons, Petitioner’s son, states that he is a pharmacist at a Wegman’s
Pharmacy, and in October 2017 was in his second year of a college pharmacy program.
Ex. 9 at ¶ 2. He saw Petitioner on the day of the flu shot, October 23, 2017, and recalls
Petitioner telling him that the pharmacist placed the needle too high on Petitioner’s
shoulder and may have injected the vaccine into the bursa rather than the deltoid muscle.
Id. Jacob Parsons recalled seeing that the band-aid covering the vaccine injection site
was very high up on Petitioner’s left shoulder near his shoulder joint. Id.
Marla Parsons, Petitioner’s spouse, received a flu shot at the same clinic as
Petitioner. Ex. 10 at ¶¶ 1-2. She recalls that Petitioner told her his vaccine injection was
given high on his left shoulder and showed her the band-aid covering the injection site,
which was close to the top of his arm. Id. at ¶ 3. Later that evening, Petitioner complained
to her of left shoulder pain that was more than he expected from a flu shot. Id. at ¶ 4. The
next day, he continued to complain of pain, which concerned her. Id.
In more than twenty years of living and working with Petitioner, she did not recall
him ever having any left shoulder issues until the October 2017 flu shot. Ex. 14 at ¶ 4.
Since that time, however, he has had “chronic left shoulder pain that makes it difficult for
him to sleep through the night, to take care of the house and farm and to perform his
veterinary duties at the level he was accustomed to prior to this flu shot.” Id. He generally
does not complain, but since the October 2017 flu shot he has complained frequently
about his left shoulder and how it limits what he can do. Id. at ¶ 5. They have had to curtail
their vision for their farm because caring for and feeding farm animals entails lifting heavy
hay bales and feed bags, which Petitioner can no longer do. Id. at ¶ 6. Their sons help
when they can, but cannot replace the work Petitioner used to do. Id. They sold their cattle
herd because Petitioner could no longer do what was needed to maintain the herd. Id.
Petitioner’s injury and resulting chronic pain have also taken a toll on his normally positive
outlook on life. Id. at ¶ 7.
IV. The Parties’ Arguments
Petitioner proposes an award of $95,000.00 for actual pain and suffering.
Petitioner’s Damages Motion, filed Feb. 21, 2023, at *2 (ECF No. 50) (“Mot.”). Petitioner
cites Accetta v. Health & Human Servs., No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec.
Mstr. Mar. 31, 2021) (awarding $95,000.00 in pain and suffering), in support of his claimed
award. Mot. at *11. Petitioner asserts that his pain was “severe enough to affect his ability
to sleep, to do his job as a veterinarian, to take care of the family farm business and to
adversely affect his normally positive outlook on life.” Id. at *12. Petitioner emphasizes
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that the pain was severe enough for him to comment on it to his wife and oldest son, and
seek medical treatment just 14 days after vaccination. Id. While his physical therapist did
not document Petitioner’s pain levels on a numerical scale, he consistently recorded pain
levels and decreased ROM severe enough to interfere with Petitioner’s work, sleep, and
other daily activities. Id. The PT records document significant ROM losses in addition to
positive impingement testing and joint capsular restriction. Id. at *12-13. Although he only
had eight PT sessions, he learned a home exercise program and his records document
his compliance with the program, which he continued to do after his formal treatment
ended. Id. at *13.
Petitioner was hesitant to receive a steroid injection because his left shoulder pain
started with an injection. Mot. at *13. Dr. Gibbs accepted this rationale, advising that he
avoid further injections. Id. To date, Petitioner has not had a steroid injection. Id. at *14.
Concerning a surgical option, Petitioner emphasizes that none of his three MRIs have
revealed any tearing or other pathology amenable to surgical correction. Id.
Petitioner’s most recent treatment record, with Dr. Gibbs, reveals that he still has
left shoulder pain at a level of five out of ten. Mot.. at *14. His pain and loss of motion
continues to have a tangible, adverse effect on his life. Id. Petitioner asserts that his
history is very similar to Accetta, and warrants the same award given to the petitioner in
that case. Id. at *15. Unlike Accetta, there was no substantial delay in seeking initial
treatment. Id. The Accetta petitioner transitioned to a home exercise program after nine
PT visits, compared to eight in this case. Id. The Accetta petitioner also had two significant
treatment gaps, for three and a half years and almost a year. Id. Petitioner suggests that
his treatment gaps should not undercut the severity of his injury because his treating
orthopedist did not order any additional PT and agreed with Petitioner’s concerns about
steroid injections, leaving only a surgical option. Id. at *16.
Petitioner argues that his SIRVA symptoms have persisted for more than five
years, citing the December 2022 record. Mot. at *16-17. Petitioner states that he is not
seeking future pain and suffering, but due to the duration of his symptoms he believes an
award at or near the median is appropriate. Id. at *17.
Respondent counters that the proffered amount of $55,000.00 is an appropriate
pain and suffering award. Respondent’s Response, filed April 5, 2023, at *2 (ECF No. 51)
(“Resp.”). Respondent argues that Petitioner’s clinical course was mild, consisting of only
eight PT sessions in the six months after vaccination, during which he experienced
improvement. Resp. at *8. At his final PT session, he was noted as having made good
progress. Id. Respondent emphasizes the nine-month treatment gap from June 2018 to
February 2019, during which time Petitioner was seen by his PCP multiple times, with no
mention of left shoulder pain. Id. After briefly seeking care from February to May 2019,
Petitioner then did not seek care again for 18 months, until November 2020. Id. Then,
Petitioner had a third gap in treatment of over two years, between November 2020 and
December 2022. Id. Respondent adds that the most recent care took place “only after a
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ruling on entitlement had issued and the case was in damages.” Id. at *8-9. In
Respondent’s view, the treatment gaps suggest Petitioner could cope with his injury,
counseling a lower award. Id. at *9 (citing Shelton v. Sec’y of Health & Human Servs., No.
19-279V, 2021 WL 2550093, at *7 (Fed. Cl. Spec. Mstr. May 21, 2021)).
Respondent cites Knauss, Dagen, and Murray, in which the petitioner received
pain and suffering awards of $60,000.00, $65,000.00, and $65,000.00, respectively, as
comparable cases.3 Resp. at *9-10. Respondent argues that in Accetta, the petitioner
was a professional physical therapist and as a result, it was found to be reasonable based
on her profession that she self-treated, explaining significant gaps in care. Id. at *10. In
contrast, Mr. Parsons’ gaps in care cannot be attributed to his profession or inability to
receive recommended treatment. Id. Respondent views Petitioner’s SIRVA as “mild, with
minimal treatment and multiple lengthy gaps in treatment, which counsels in favor of a
modest award.” Id.
V. 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 & 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
3 Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018); Dagen v. Sec’y of Health & Human Servs., No. 18-442V, 2019 WL 7187335 (Fed. Cl. Spec.
Mstr. Nov. 6, 2019); Murray v. Sec’y of Health & Human Servs., No. 18-534V , 2020 WL 4522483 (Fed. Cl.
Spec. Mstr. July 6, 2020).
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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.4 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 a decision of the
Court of Federal Claims several years ago. Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (Fed. Cl. 2013). Graves instead emphasized the importance of
assessing pain and suffering by looking to the record evidence specific to the injured
individual, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595. Under this 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.
Although Graves is not controlling of the outcome in this case, it provides reasoned
guidance in calculating pain and suffering awards.
VI. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2023, 3,304 SPU SIRVA cases have resolved since the inception of SPU on
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
5 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.
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July 1, 2014. Compensation was awarded in 3,211 of these cases, with the remaining 93
cases dismissed.
1,834 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that petitioner was entitled to compensation (as opposed to a settlement or concession).6
In only 173 of these cases, however, was the amount of damages also determined by a
special master in a reasoned decision.7 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.8
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated9
Decisions by Damages Damages Agreement
Special Master
Total Cases 173 1,632 29 1,377
Lowest $40,757.91 $22,500.00 $45,000.00 $5,000.00
1st Quartile $70,203.12 $62,825.18 $90,000.00 $38,134.81
Median $92,299.83 $83,039.25 $130,000.00 $55,000.00
3rd Quartile $125,000.00 $111,475.61 $162,500.00 $80,803.17
6 The remaining 1,377 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
7 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (1,632 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
8 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 insight 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) (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 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
11

Case 1:19-vv-01150-UNJ Document 61 Filed 01/02/24 Page 12 of 14
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 173 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$40,000.00 to $215,000.00, with $90,000.00 as the median amount. Only seven of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.10
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 – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most 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 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In six cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
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 his
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).
12

Case 1:19-vv-01150-UNJ Document 61 Filed 01/02/24 Page 13 of 14
awareness of his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
Petitioner initially had “severe” pain with normal ROM. His pain then appears to
have continued at a somewhat reduced level, followed by the development of ROM
restrictions and persistent pain that impacted his activities for a prolonged time. Petitioner
suffered a mild to moderate SIRVA that is noteworthy for its duration, spanning over five
years. During that time, however, there were three gaps in formal treatment of nine and
a half months, 18 months, and two years. Although there are disparities in Petitioner’s
ROM as evaluated by his orthopedist and his physical therapist,11 I find that the record
supports the conclusion that Petitioner experienced moderate to severe restrictions in his
ROM that improved with PT. His injury impacted his work as a veterinarian and on his
family farm.
The case Petitioner cites, Accetta, is a good comparable, involving an injury of
similar duration and treatment, also involving lengthy treatment gaps. In Accetta, the
petitioner’s orthopedist repeatedly recommended surgery. Accetta, 2021 WL 1718202, at
*3-4. Mr. Parsons’ orthopedist discussed surgery as an option if his condition persisted or
worsened, and offered a referral for a second opinion. It does not appear that Mr. Parsons’
orthopedist recommended surgery, but did seem to view it as a reasonable treatment
option. The Accetta petitioner had a treatment gap of nearly three and a half years,
suggesting a lengthy period of relief. While Petitioner had gaps in formal treatment, none
were this long. Both petitioners had similar treatment, with the Accetta petitioner attending
nine PT sessions compared to eight for Mr. Parsons. Both saw orthopedists and had
MRIs, and neither had cortisone injections.
By contrast, the petitioners in the cases cited by Respondent all had at least one
cortisone injection, compared to none for Mr. Parsons, and more sessions of PT.
However, Respondent’s cases involve injuries that were treated for a significantly shorter
period of time, ranging from six months to a year.12 There is a marked difference between
a shoulder injury lasting a year or less and one that persists for five years, and the pain
and suffering award should reflect that. I find that Petitioner’s case is most similar to
Accetta, though slightly less severe as exemplified by the repeated surgical
recommendations in Accetta, and merits a slightly lower pain and suffering award.
11 At a January 31, 2018 PT session, Petitioner’s active ROM was measured as 86 degrees in flexion and
57 degrees in abduction. Ex. 6 at 18. Three days later, Dr. Gibbs recorded his active ROM as 175 degrees
in flexion (a difference of 89 degrees) and 160 degrees in abduction (a difference of 103 degrees). Ex. 4 at
16. Fourteen days later, at a PT session, his passive ROM was documented as 117 degrees in flexion. Ex.
6 at 12.
12 The Dagen petitioner sought care for just over six months, while the petitioners in Knauss and Murray
sought care for approximately one year.
13

Case 1:19-vv-01150-UNJ Document 61 Filed 01/02/24 Page 14 of 14
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $90,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 13 I also find that Petitioner
is entitled to $1,416.18 in actual unreimbursable expenses.14
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum payment of $91,416.18, 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 Court is directed to enter judgment in accordance with this decision.15
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994))..
14 The parties are in agreement as to damages for unreimbursable expenses. Mot. at 2; Resp. at 2.
Petitioner states that he actually incurred unreimbursed medical expenses totaling $1,483.28, but “is willing
to accept Respondent’s calculation of past unreimbursable medical expenses of $1,416.18 thereby
removing one potentially contested issue from this motion.” Mot. at *10-11.
15 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.
14

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_19-vv-01150-cl-extra-10735487
Date issued/filed: 2024-04-29
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10268897
--------------------------------------------------------------------------------
    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 19-1150V


    RICHARD PARSONS,
                                                             Chief Special Master Corcoran
                         Petitioner,
    v.                                                       Filed: March 26, 2024


    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                        Respondent.


Matthew F. Belanger, Faraci Lange LLP, Rochester, NY, for Petitioner.

Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.


                       DECISION ON ATTORNEY’S FEES AND COSTS1

       On August 8, 2019, Richard Parsons 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 that he suffered a left shoulder injury related to
vaccine administration (“SIRVA”) resulting from an influenza vaccine received on October
23, 2017. Petition at 1. On November 30, 2023, I issued a decision awarding damages to
Petitioner, following briefing by the parties. ECF No. 52.


1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (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 (2018).
      Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $42,607.31 (representing $42,011.00 for fees and $596.31 for costs). Petitioner’s
Motion for Attorneys’ Fees and Reimbursement of Case Costs Pursuant to 42 U.S.C. §
300aa-15, filed Dec. 14, 2023, ECF No. 59. In accordance with General Order No. 9,
counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. ECF
No. 59-3.

        Respondent reacted to the motion on December 14, 2023, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring resolution of the amount to be awarded to my discretion.
Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 60. Petitioner filed no reply.

        I note this case required additional briefing and argument regarding the issues of
entitlement, and then damages. See Rule 4(c) Report, filed May 24, 2021, ECF No. 28;
Petitioner’s Motion for a Fact Ruling on the Issue of Onset of Symptoms and Entitlement
to Compensation, filed Oct. 25, 2021, ECF No. 35; Petitioner’s Reply, filed Dec. 13, 2021,
ECF No. 37; Status Report, filed Dec. 7, 2022, ECF No. 42 (reporting impasse in damages
discussions); Petitioner’s Motion for a Fact Ruling on Damages, filed Feb. 21, 2023, ECF
No. 50. Petitioner’s counsel expended approximately 18.7 hours drafting the motion
related to entitlement and 2.7 hours drafting a reply – totaling 21.4 hours; and 20.5 hours
drafting the motion related to damages. ECF No. 59-2 at 95-7. Furthermore, the amount
I ultimately awarded ($90,000.00) was close to that proposed by Petitioner ($95,000.00)
– supporting the need for damages briefing. Thus, I find this amount of time to be
reasonable and will award the attorney’s fees requested. (And all time billed to the matter
was also reasonably incurred.)

       Furthermore, Petitioner has provided supporting documentation for all claimed
costs, ECF No. 59-4. And Respondent offered no specific objection to the rates or
amounts sought. I have reviewed the requested costs and find them to be reasonable.

       The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). I award a total of $42,607.31 (representing
$42,011.31 for fees and $596.31 in costs) as a lump sum in the form of a check
jointly payable to Petitioner and Petitioner’s counsel, Matthew F. Belanger. In the
absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk of Court shall enter judgment in accordance with this decision.3


3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
                                                 2
IT IS SO ORDERED.
                        s/Brian H. Corcoran
                        Brian H. Corcoran
                        Chief Special Master




                    3