VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01384
Package ID: USCOURTS-cofc-1_19-vv-01384
Petitioner: David Smith
Filed: 2019-09-11
Decided: 2022-07-29
Vaccine: influenza
Vaccination date: 2018-10-16
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 129207

AI-assisted case summary:
On September 11, 2019, David Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccine administered on October 16, 2018, caused a shoulder injury related to vaccine administration (SIRVA) as defined on the Vaccine Injury Table. Mr. Smith, who was 65 years old at the time of vaccination, had no prior history of shoulder complaints. He received the flu vaccine in his left deltoid muscle. Thirty-six days post-vaccination, on November 21, 2018, he presented to urgent care with symptoms of fever and gastrointestinal issues, but did not report shoulder pain. Forty-three days post-vaccination, on November 28, 2018, he saw his primary care physician, Dr. Brian Edward Wysong, complaining of left shoulder pain for the past month, which he stated began after receiving the flu shot. Dr. Wysong administered a steroid injection, and Mr. Smith reported improvement but continued pain. He was referred to physical therapy. On January 2, 2019, physical therapist Joseph Nowak documented that Mr. Smith reported his left shoulder hurt "pretty bad" the day after the flu shot in mid-October. Mr. Smith underwent surgery on June 19, 2019, for adhesive capsulitis and subacromial impingement. Following surgery, he completed 25 physical therapy sessions. On October 22, 2019, Dr. Erik Johnson, the orthopedic surgeon, assessed Mr. Smith with a 10% impairment of the shoulder, noting he would likely "always have a little bit of stiffness and weakness." Mr. Smith continued to experience stiffness and some pain with activities, particularly affecting his sleep. On December 2, 2021, Chief Special Master Brian H. Corcoran issued a ruling on entitlement, finding that Mr. Smith had provided preponderant evidence of a Table SIRVA, including onset of shoulder pain within 48 hours of vaccination. The case then proceeded to damages. On July 29, 2022, Chief Special Master Corcoran issued a decision awarding Mr. Smith $129,207.48. This award included $125,000.00 for past pain and suffering, $3,748.74 for future pain and suffering, and $458.74 for past unreimbursed expenses. The award was based on the moderate severity and duration of his injury, including permanent limitations rated at 10% disability.

Theory of causation field:
Petitioner David Smith, age 65, received an influenza vaccine on October 16, 2018. He alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) as defined by the Vaccine Injury Table. The Special Master found that Mr. Smith developed shoulder pain within 48 hours of vaccination, satisfying the Table requirements. Medical records indicated onset of pain around the time of vaccination, with treatment sought 43 days later. The injury progressed to adhesive capsulitis and subacromial impingement, requiring surgery and resulting in a 10% permanent impairment. Respondent initially contested entitlement based on the delay in seeking treatment but did not contest it after the initial ruling. The case proceeded to damages, where Chief Special Master Brian H. Corcoran awarded Mr. Smith $129,207.48, comprising $125,000.00 for past pain and suffering, $3,748.74 for future pain and suffering, and $458.74 for past unreimbursed expenses. The award reflected the moderate severity and duration of the injury. Petitioner was represented by Leah VaSahnja Durant, and Respondent was represented by Mark Kim Hellie. The decision was issued on July 29, 2022.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01384-0
Date issued/filed: 2022-01-06
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/02/2021) regarding 31 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1384V
UNPUBLISHED
DAVID SMITH, Chief Special Master Corcoran
Petitioner,
v. Filed: December 2, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Findings of Fact; Onset; Ruling on
Entitlement; Influenza (Flu); Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA).
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On September 11, 2019, David Smith 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 as a result of the influenza (“flu”) vaccine on October
16, 2018, he suffered a shoulder injury related to vaccination (“SIRVA”) as defined on the
Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at Preamble. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished opinion 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 opinion 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-01384-UNJ Document 33 Filed 01/06/22 Page 2 of 10
For the reasons discussed below, I find that a preponderance of evidence supports
the conclusion that Petitioner suffered the onset of shoulder pain within 48 hours after
vaccination, and that Petitioner is entitled to compensation for a right SIRVA.
I. Relevant Procedural History
As noted above, the case was filed, activated, and assigned to the SPU in
September 2019. On June 12, 2020, Respondent provided an informal review of the case,
noting only that Petitioner did not seek treatment for the injury alleged until 43 days after
vaccination despite seeking other intervening medical treatment. ECF No. 14.
On July 27, 2020, Petitioner conveyed a settlement demand to Respondent. ECF
No. 16. On February 12, 2021, Respondent completed his formal medical review of the
case and entered into settlement discussions. ECF No. 21. However, on June 28, 2021,
the parties advised that they had reached an impasse. ECF Nos. 23-25.
On August 24, 2021, Respondent filed his report pursuant to Vaccine Rule 4(c), in
which he opposed compensation for a Table SIRVA on the basis that Petitioner had not
provided preponderant evidence of onset within 48 hours after vaccination. Respondent
noted Petitioner’s 36-day post-vaccination urgent care encounter for fever and
gastrointestinal issues (at which time there was no mention of shoulder pain), along with
the fact that he waited, in total, 43 days post-vaccination to seek medical treatment for
his shoulder. Respondent also averred that “Petitioner’s reported claims of onset to his
medical providers several weeks after vaccination is insufficient evidence to support his
claim[ed]” onset. Rule 4(c) Report (ECF No. 27) at 7.
I then directed both parties to file briefs and any other evidence that would facilitate
my resolution of the disputed issues. ECF No. 28. Petitioner filed updated medical records
and supplemental affidavits (Exs. 11-16), followed by his brief (ECF No. 30).3 Respondent
did not make any further filings. This matter is now ripe for adjudication.
II. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
3 Petitioner filed his brief slightly out of time. The deadline fell on a Friday and he filed the brief on the
following Monday. It is nonetheless accepted sua sponte.
2

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 3 of 10
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19. And the Federal Circuit recently “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).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
3

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 4 of 10
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.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] ... did in fact occur within the time period described in the Vaccine Injury Table.”
Id.
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, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the
special master's discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
III. Relevant Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits,
Respondent’s Rule 4(c) Report, and Petitioner’s brief. I find most relevant the following:
• Upon receiving the subject vaccination, Mr. Smith was sixty-five (65) years
old and was generally healthy, with no history of complaints related to his
left upper extremity. He was retired and resided with his wife.
• Petitioner was an established patient of Brian Edward Wysong, M.D. at the
South Point Family Practice in Belmont, North Carolina. In the three years
before vaccination, Petitioner sought medical care infrequently, most often
for comprehensive annual exams and maintenance of his longstanding
hypothyroidism.4 Ex. 2 at 3-4; 91-234.
• On October 16, 2018, Petitioner presented to Dr. Wysong’s practice to
receive a seasonal flu vaccine. A medical assistant administered the flu
vaccine into Petitioner’s left deltoid muscle. Ex. 1 at 1; Ex. 2 at 82-83.
• Thirty-six (36) days post-vaccination, on November 21, 2018, Petitioner
presented to urgent care. He reported waking up at 1:00 a.m. “shaking
violently with chills,” and additional symptoms of fever, dysuria, urinary
urgency, and decreased appetite. He did not raise any complaints
4 Respondent stated that Petitioner’s hypothyroidism was a “significant” aspect of his medical history. Rule
4(c) Report at 2 (citing Ex. 2 at 81). However, Respondent did not contend that condition is an obstacle to
entitlement for the injury alleged, nor do I see preponderant evidence for such.
4

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 5 of 10
concerning his left shoulder. A physician assistant (“PA”) conducted a
limited physical exam which did not address the musculoskeletal system.
The only neurological finding was that Petitioner was “alert.” The PA
assessed Petitioner with unspecified fever and pyelonephritis5 for which she
gave an intramuscular antibiotic injection.6 She prescribed an oral antibiotic
as well as an anti-nausea medication to have on hand over the upcoming
holiday.7 Ex. 2 at 66-69.
• Forty-three (43) days post-vaccination, on November 28, 2018, Dr. Wysong
saw Petitioner for a chief complaint of left shoulder pain “for the past month.”
Dr. Wysong also recorded: “This started after getting a flu shot. He said that
the flu shot hurt. It has hurt every [sic] then.” Petitioner reported pain upon
moving his shoulder, such as reaching for a keyboard or putting on or taking
off a jacket. Motrin had not helped. On exam, Dr. Wysong observed that
Petitioner had no weakness and full range of motion, but pain upon
abduction. Dr. Wysong assessed left shoulder bursitis and injected a
subacromial steroid injection. He told Petitioner to follow up if his symptoms
worsened or failed to improve. Ex. 2 at 43-45.8
• Upon following up with Dr. Wysong on December 31, 2018, Petitioner
reiterated that his left shoulder pain “all started with the flu shot.” Since the
steroid injection, he was “definitely better,” but he was “still having sharp
pains with reaching out or doing certain things.” Dr. Wysong documented
no tenderness and normal range of motion, but pain on internal and external
rotation. He referred Petitioner to physical therapy (“PT”). Ex. 2 at 30-32.
• At the initial consult with physical therapist Joseph Nowak on January 2,
2019, Petitioner reported that: “Back in mid-October, I got my flu shot. The
next day my left shoulder was hurting pretty bad (anterior/ lateral left
shoulder) …” PT Nowak documented left shoulder flexion to 168 degrees
and abduction to 165 degrees – and normal internal and external rotation,
although all of those movements elicited pain. Petitioner had mild pain on
5 Pyelonephritis is defined as inflammation of the kidney and renal pelvis due to bacterial infection. Dorland’s
Illustrated Medical Dictionary, available at https://www.dorlandsonline.com (hereinafter “Dorland’s”).
6 Respondent notes that the antibiotic injection was intramuscular, but the site of administration is not noted.
Rule 4(c) Report at n.1. I find insufficient evidence in the record to determine that this antibiotic was
administered in the left shoulder or that it represents a potential alternative cause for Petitioner’s shoulder
injury, which he consistently attributed to the vaccine over one month earlier.
7 The following day, Thursday, November 22, 2018, was Thanksgiving. See
https://www.timeanddate.com/calendar/monthly.html%3Fyear%3D2018%26month%3D11%26country%3
D1.
8 Petitioner also reported that he “had a UTI last week, but better from that.” Regardless, Dr. Wysong
prescribed another 10-day course of oral antibiotics. Ex. 2 at 43, 45.
5

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 6 of 10
palpation. He was between 1% and 20% impaired in carrying, moving, and
handling objects. He was given home exercises and a plan for further
therapy to “decrease inflammation.” Ex. 7 at 1-3.
• After attending three PT sessions and not progressing, on January 16,
2019, Petitioner self-discharged. He planned to follow up with Dr. Wysong
and seek a referral to an orthopedist. Ex. 7 at 4-7.
• On January 31, 2019, Dr. Wysong recorded that Petitioner had continued
left shoulder pain, which he had aggravated a week earlier while using a
crank drill underneath his house. Dr. Wysong referred to an orthopedic
surgeon, Erik Johnson, M.D., for further evaluation and treatment. Ex. 2 at
17-19.
• At the February 12, 2019, initial consult with Dr. Johnson, Petitioner
reported that he “developed acute onset of left shoulder pain on October
16, 2018 after a flu shot into the left deltoid region.” The one steroid injection
had “help[ed] him out” but did not lead to long-term improvement. Petitioner
was also concerned that too many steroid injections would exacerbate his
preexisting eye condition. He reported current pain of about 8/10. He was
taking over-the-counter Advil, Motrin, and Tylenol. On physical exam, Dr.
Johnson observed normal passive range of motion, but limited active range
of motion secondary to weakness and pain. He had positive impingement
signs. An x-ray of the shoulder was unremarkable. Dr. Johnson’s initial
impression was a left shoulder rotator cuff tear. Ex. 3 at 6-7.
• On February 18, 2019, an MRI of the left shoulder was conducted, which
was “limited by some patient motion.” Within the rotator cuff, the
supraspinatus tendon contained an area of “partial” tearing as well as
potential, “very minimal” fraying. The labrum was concerning for “a small
area of tearing,” and additional “minimal fraying” could not be excluded.
There were no findings in the bursa, although there was possible minimal
thickening and increased signal within the inferior joint capsule. The MRI
could not exclude findings of early adhesive capsulitis, which would need
clinical correlation. Ex. 3 at 8-9; see also Ex. 3 at 5 (February 21, 2019
follow-up appointment with Dr. Johnson).
• On April 25, 2019, Petitioner reported that his pain was worse as opposed
to better and interfering with his sleep. Dr. Johnson instructed Petitioner to
keep moving the shoulder to keep it from getting stiff. Dr. Johnson also
discussed potential interventions. Petitioner decided to undergo surgery
after pre-planned trips to visit his daughter and to accompany his wife to an
oncology follow-up appointment. Ex. 3 at 5.
6

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 7 of 10
• On June 19, 2019, Dr. Johnson performed a left shoulder arthroscopy with
extensive intraarticular debridement, capsular release, and subacromial
decompression. The post-operative diagnosis was left shoulder adhesive
capsulitis with subacromial impingement. Ex. 5 at 7-8.
• Petitioner attended a total of twenty-five (25) post-operative PT sessions
between July 3rd and October 21st, 2019. See generally Exs. 7, 9. Upon
discharge, he reported: “Doing much better overall compared to where we
were. Sleeping is still the biggest problem. I get maybe 2 hours of sleep in
my bed then have to switch to the recliner.” He was able to don and doff
clothing and drive a car for one hour without increased shoulder pain. He
had achieved over 160 degrees on active scaption9 but fell short of that goal
(152 degrees) on active flexion. Ex. 9 at 24.
• Petitioner also followed up periodically with Dr. Johnson, including on
September 17, 2019, when he brought “information regarding a shoulder
injury related to vaccine administration.” Ex. 10 at 1. Dr. Johnson recorded
that this material was “a very interesting read” on a subject which he was
previously “not very familiar.” Id.
• On October 22, 2019, Dr. Johnson observed that Petitioner had normal
range of motion and no impingement signs. He had “made steady
improvement” but would likely “always have a little bit of stiffness and
weakness in the shoulder,” which Dr. Johnson assessed as a 10%
impairment. Petitioner would continue a home exercise program. He had
“retained an attorney in Washington, D.C.” Ex. 10 at 2.
• At the next encounter with Dr. Johnson on July 27, 2020, Petitioner reported
pain and stiffness associated with a driving trip, as well as some home
improvement projects. The exam was similar with the addition of “very
minimal” impingement signs and strength of 4/5. Ex. 11 at 1.
• At the last appointment with Dr. Johnson in the record, on April 27, 2021,
Petitioner reported some ongoing stiffness. He had “very little pain at rest
but some pain with activities.” He could not externally rotate his left arm to
put it under the pillow while sleeping on his left side. Dr. Johnson again
advised that Petitioner was “the best he will be.” Ex. 11 at 2.
• In his affidavit (dated October 14, 2021), Mr. Smith avers that upon
receiving the October 16, 2018, flu vaccine, he “immediately felt pain and
noticed that the injection site was rather high and off-center toward my
back.” Ex. 12 at ¶ 1. He experienced continuing discomfort which
9 Scaption (also known as scapular plane elevation) describes raising an arm from the side of the body and
slightly forward. Healthline, Scaption, https://www.healthline.com/health/scaption#definition (last accessed
November 17, 2021).
7

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 8 of 10
progressed that evening, the following day, and over the subsequent weeks.
Id. at ¶ 2. He tried to avoid using his arm and hoped the pain would go away,
but it persisted. Id. at ¶ 3.
• Petitioner had volunteered with Operation Christmas Child for many years.
Ex. 12 at ¶ 4. But during the gift collection week from November 12th
through November 19th, 2018, he was unable to load the cartons of gifts
and he was limited to administrative tasks because his arm hurt so badly.
Id. at ¶ 5.
• Petitioner does not address the November 21, 2018, urgent care encounter
or his delay in seeking medical treatment for his shoulder. See generally
Ex. 12.
• His wife recalls receiving their flu vaccines together on October 16, 2018.
Ex. 13 at ¶ 1. While she did not feel any discomfort upon vaccination, she
witnessed Petitioner displaying a “pained look,” telling the nurse that it hurt,
and commenting afterward that the injection seemed too high on his arm.
Id. She also recalls that the next morning, Petitioner got up from bed and
reported left shoulder and arm pain throughout that night. Id. at ¶ 2.
Petitioner continued to experience pain and hoped it would get better, but it
never did. Id.
• Petitioner’s son, who lives several hundred miles away, recalled that his
mother mentioned Petitioner’s shoulder pain during a phone conversation
“the day after the shot.” Ex. 14 at ¶ 1.
• A friend who also volunteered with Operation Christmas Child recalled that
normally Petitioner was very active and helpful in the loading of the boxes
into the trucks. Ex. 15 at ¶ 1. However, during in November 2018, he could
only complete paperwork because his shoulder hurt too much.
• Another friend recalled that “in the fall of 2018,” Petitioner and his wife
recounted his left shoulder pain beginning immediately after a flu vaccine.
Ex. 16.
IV. Findings of Fact Regarding Onset
In opposing compensation for a Table SIRVA, Respondent only contended that
Petitioner has not established the requisite onset of shoulder pain within 48 hours after
vaccination. Rule 4(c) Report at 7 (citing 42 C.F.R. §§ 100.3(a)(XII)(A), (c)(10)(ii)).
Respondent noted that Petitioner waited forty-three (43) days to pursue medical
treatment for his shoulder. Rule 4(c) Report at 7. Mr. Smith’s medical records, affidavits,
and legal brief fail to address this delay. However, I have previously recognized that there
8

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 9 of 10
are a variety of reasonable explanations for why a SIRVA petitioner might delay
treatment, such as “thinking his/her injury will resolve on its own.” Winkle v. Sec’y of
Health & Human Servs., No. 20-0485, 2021 WL 2808993, at *4 (Fed. Cl. Spec. Mstr. June
3, 2021) (finding that a petitioner developed shoulder pain within 48 hours after
vaccination, despite the fact that she waited nearly five months to seek medical attention).
Such a delay in treatment, while relevant to damages (since it tends to establish a milder
injury), is not unprecedented for SIRVA claims.
More notable is the intervening medical encounter for unrelated issues 37 days
after vaccination, at which point the shoulder pain could reasonably be characterized as
persistent and perhaps warranting medical attention – but was not mentioned. Petitioner
has not offered any explanation for why this medical record does not address his alleged
shoulder pain. However, Respondent admits that the record specifically concerned
“emergency care for a fever and gastrointestinal issues.” Rule 4(c) Report at 7. Moreover,
the Federal Circuit has recognized that a medical record can be “silent” as to either the
existence or nonexistence of a particular symptom – and that this silence does not defeat
a contrary finding supported by reasonable sworn testimony. Kirby, 997 F.3d at 1383.
Here, the urgent care record is clearly focused on Petitioner’s acute infection and does
not address his musculoskeletal system. It thus does not prove or disprove the existence
of shoulder pain, which Petitioner indeed reported to his primary care provider just one
week later after the Thanksgiving holiday.
Respondent also argued that Petitioner’s “reported claims of onset to his medical
providers several weeks after vaccination are insufficient evidence to support his claim
that his shoulder pain began within 48 hours of vaccination.” Rule 4(c) Report at 7. But
as previously noted, this argument ignores the fact that even a medical history provided
to a petitioner’s provider, and in the context of seeking medical treatment, has some
indicia of reliability. Hartman v. Sec’y of Health & Human Servs., No. 19-1106V, 2021 WL
4823549, at *5 (Fed. Cl. Spec. Mstr. Sept. 14, 2021) (crediting the claimant’s history of
the onset of her shoulder pain, within subsequent medical records focused on diagnosis
and treatment of said shoulder pain), citing Cucuras, 993 F.2d at 1528.
Furthermore, since Respondent filed his Rule 4(c) Report, several other individuals
have offered their own independent recollections of onset. This includes Petitioner’s wife,
who remembers his immediate and persisting pain, and the fellow volunteer, who
observed Petitioner’s limitations due to shoulder pain in mid-November 2018 (prior to both
the urgent care visit and the first medical attention for shoulder pain).
9

Case 1:19-vv-01384-UNJ Document 33 Filed 01/06/22 Page 10 of 10
In sum, the record contains preponderant evidence that Mr. Smith developed left
shoulder pain within 48 hours after vaccination.10
V. Other Table Requirements and Entitlement
In light of the lack of other objections and my own review of the record, I find that
Petitioner has established the other requirements for a Table SIRVA claim. Specifically,
there is not a history of prior shoulder pathology that would explain his injury. 42 C.F.R.
§ 100.3(c)(3)(10)(i). There is no evidence of any other condition or abnormality that
represents an alternative cause. 42 C.F.R. § 100.3(c)(3)(10)(iii). The medical records and
affidavits support that his shoulder pain and reduced range of motion were limited to the
left shoulder. C.F.R. § 100.3(c)(3)(10)(iv). The contemporaneous vaccination record
reflects the site of administration as his left deltoid. Ex. 1; Sections 11(c)(1)(A) and (B)(i).
Petitioner has not pursued a civil action or other compensation. Ex. 8 at ¶ 1; Section
11(c)(1)(E). Finally, Petitioner suffered the residual effects for more than six months after
vaccination and moreover, underwent hospitalization and surgical intervention for the
injury alleged. Thus, Petitioner has satisfied all requirements for entitlement under the
Vaccine Act.
VI. Conclusion
Based on the entire record, I find that Petitioner has provided preponderant
evidence satisfying all requirements for a Table SIRVA. Petitioner is entitled to
compensation. A subsequent order will set further proceedings towards resolving
damages.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 However, Petitioner’s delay in seeking treatment – despite access to healthcare providers – does support
that his pain was less severe, which is relevant to the determination of an appropriate damages award.
10

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01384-1
Date issued/filed: 2022-07-29
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 06/29/2022) regarding 41 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
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Case 1:19-vv-01384-UNJ Document 45 Filed 07/29/22 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1384V
UNPUBLISHED
DAVID SMITH, Chief Special Master Corcoran
Petitioner,
v. Filed: June 29, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 11, 2019, David Smith 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 as a result of an influenza (“flu”) vaccine received
on October 16, 2018, he suffered a shoulder injury related to vaccination (“SIRVA”) as
defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at Preamble. The
case was assigned to the Special Processing Unit of the Office of Special Masters (the
“SPU”).
1 Because this unpublished opinion 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 opinion 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-01384-UNJ Document 45 Filed 07/29/22 Page 2 of 12
Following my ruling on entitlement in Petitioner’s favor in December 2021, the
parties quickly reached an impasse concerning the appropriate award of damages, and
thus have submitted that issue to my final determination. For the following reasons, I find
that Petitioner is entitled to a damages award of $129,207.48 (representing $125,000.00
for past pain and suffering, $3,748.74 for future pain and suffering, and $458.74 for
past unreimbursed expenses).
I. Relevant Procedural History
On December 2, 2021, I found that Petitioner was entitled to compensation for a
Table SIRVA. Entitlement Ruling (ECF No. 31).3 I noted, however, that his evident delay
in seeking medical treatment tended to establish a less severe degree of pain (which
would in turn impact damages to be awarded). Id. at 9 and n. 10. On February 14, 2022,
Petitioner reported that the parties’ respective valuations of damages were too far apart,
and I approved the parties’ proposed schedule to submit any additional evidence and
briefing. Status Report (ECF No. 35); Scheduling Order (Non-PDF).
On March 16, 2022, Petitioner filed a Damages Brief (ECF No. 38), unreimbursed
expenses documentation (Ex. 17), and a supplemental damages affidavit (Ex. 18). On
April 18, 2022, Respondent filed his Response (ECF No. 39). On May 2, 2022, Petitioner
filed a Reply (ECF No. 40). The matter is now ripe for adjudication.
II. Authority
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).
3 My prior summary of the underlying facts and the procedural history as set forth in the Ruling on
Entitlement, are fully incorporated and relied upon herein.
2

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There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Human 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 the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013).
Judge Merow maintained that do so resulted in “the forcing of all suffering awards into a
global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merow
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 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
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.
3

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III. 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 January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
the petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or 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, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 967 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. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
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.
6 See, e.g., Sakovits v. Sec’y of Health & Hum. 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).
4

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not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
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 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.8
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 experienced
this greater pain for three months or less. All 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. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5

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Although some petitioners asserted residual pain, the prognosis in these cases was
positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
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 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
IV. 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
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
In performing this analysis, I have reviewed the record as a whole, including all
medical records, declarations, affidavits, and all other filed evidence, plus the parties’
briefs and other pleadings. I also have taken into account prior awards for pain and
suffering in both SPU and non-SPU SIRVA cases, and rely upon my experience
adjudicating these cases. However, I base my ultimate determination on the specific
circumstances of this case.
A. The Parties’ Arguments
The parties agree that Petitioner should be awarded $458.74 for past
unreimbursed expenses. Brief at 1; Response at 1; see also Ex. 17 (supporting
documentation). Thus, the only area of disagreement concerns the appropriate amount
and scope of compensation for Petitioner’s pain and suffering, past and future.
6

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Upon receiving the subject vaccination, Petitioner was 66 years old. Ex. 1 at 1.9
His prior medical history is non-contributory and therefore not included in the parties’
damages briefing. The parties further agree that the treatment course for his SIRVA
included over-the-counter pain medications, one steroid injection, three initial physical
therapy (“PT”) sessions, an MRI, consultations with an orthopedic surgeon, surgical
intervention, and 25 subsequent PT sessions. Brief at 5-9; Response at 2-5.
In requesting $140,000.00 for past pain and suffering, Petitioner characterizes his
initial pain as “severe” and “debilitating.” Brief at 10. He explains that for the first 43 days
of his injury, he delayed medical treatment while attempting to continue serving as the
primary caregiver for his wife, who had been fighting a rare form of cancer for eight years;
maintaining their household; and fulfilling their annual volunteer commitment with
Operation Christmas Child. Id. at 3-4, 12. He also recalls reporting shoulder pain during
the one intervening urgent care encounter for a UTI. Id. at 12-13. He also asserts that his
“severe” and “debilitating” pain persisted without relief for a total of eight months leading
up to his surgery. Id. at 13-14.
Petitioner avers that he is “reasonably comparable” to the petitioner in Reed
(awarded $160,000.00 for past pain and suffering), on the grounds that both suffered pain
without lasting relief “for an extended period” prior to surgery, had ongoing pain and
limitations after surgery. Brief at 15.10 Petitioner allows that his injury “may not be as
severe as Ms. Reed’s injury,” but avers that it was more severe than the petitioner’s injury
in Wilson, whose “not extensive” post-surgical treatment and limitations warranted
$130,000.00 for past pain and suffering. Id. at 15-16.11
Petitioner also requests $2,500.00 per year12 for future pain and suffering based
on his orthopedist’s documentation of permanent post-surgical shoulder limitations, rated
at 10%. Brief at 1, 16-17; Reply at 4-6, n. 2.
9 Petitioner’s Entitlement Brief (ECF No. 30), the Ruling on Entitlement (ECF No. 31), and Petitioner’s
Damages Brief (ECF No. 38) inadvertently state that he was 65 years old upon vaccination.
10 Citing Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr.
Feb. 1, 2019).
11 Citing Wilson v. Sec’y of Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731, at *5 (Fed. Cl. Spec.
Mstr. Mar. 18, 2021).
12 Citing Social Security Administration, Retirement & Survivors’ Benefits: Life Expectancy Calculator,
https://www.ssa.gov/cgi-bin/longevity.cgi (last accessed May 16, 2022) (providing that Petitioner has a life
expectancy of an additional 15.5 years).
7

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Respondent offers $101,000.00 for only past pain and suffering, with no future
component. Response at 1. He maintains that the initial absence of documented medical
attention establishes a less severe injury. Brief at 7. Respondent correctly notes that the
urgent care encounter does not document shoulder pain – but he does not address
Petitioner’s explanation for the initial delay, or the severity of his injury in the subsequent
seven months leading up to surgery. Respondent suggests that Petitioner’s course is
comparable to Knudson (awarding $110,000.00 for past pain and suffering), with a “slight
reduction” due to Mr. Smith’s delay in seeking treatment. Response at 8.13
In opposing any award for future pain and suffering, Respondent emphasizes that
Petitioner’s active treatment course ended after his last post-surgical PT session, which
occurred one year and five days after vaccination, on October 21, 2019. Reply at 7-8, n.
2. Thereafter, Petitioner followed up with his orthopedist only once in 2020 and once in
2021, and he has not submitted updated medical records from his primary care provider.
Id. at 8.
Respondent also argues that Petitioner’s permanent shoulder loss of function,
rated at just 10%, is not sufficient to warrant a future award. Response at 9-10, citing to
Curri, (22.5% disability and $550.00 per year)14 and Hooper (50% disability and $1,500.00
per year).15 Petitioner does not respond to this argument in his Reply. Petitioner instead
emphasizes that medical documentation of the permanent injury is highly probative
toward awarding future pain and suffering. Reply at 4-6, citing Curri and Binette (“similar”
disability as in Curri and $1,000.00 per year).16
13 Knudson v. Sec’y of Health & Hum. Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov.
7, 2018).
14 Respondent inadvertently states that in Reed, the special master denied future pain and suffering to the
petitioner because she “claimed a 22.5 percent loss of use of her arm.” Response at 9. Instead in Reed,
the special master denied future pain and suffering because the petitioner “ha[d] not submitted a statement
or medical record from a medical professional” to support her own assertion of permanent injury. 2019 WL
1222925, at *17. The intended citation is most likely to Curri, in which a petitioner whose treating orthopedist
confirmed a permanent ‘scheduled loss of use’ of 22.5% percent” was awarded $550.00 per year. Curri v.
Sec’y of Health & Hum. Servs., No. 17-0432V, 2018 WL 6273562, *6 (Fed. Cl. Spec. Mstr. Oct. 31, 2018).
15 Hooper v. Sec’y of Health & Hum. Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar.
20, 2019).
16 Binette v. Sec’y of Health & Hum. Servs., No. 17-0432V, 2019 WL 1552620, at *14 (Fed. Cl. Spec. Mstr.
March 20, 2019).
8

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B. Analysis
A careful review of the medical review supports the determination that after the
October 2018 vaccination, Mr. Smith’s initial shoulder pain was moderate. I do not find
sufficient evidence to accept or reject that Petitioner reported his shoulder pain during the
urgent care encounter 36 days after vaccination.17 Petitioner acknowledges that at the
time, his UTI symptoms were “more urgent”18 and that he waited another six days for an
appointment to address his shoulder. Brief at 13. Petitioner also explains that he first
attempted to manage his pain while attending to his wife’s longstanding cancer,19
household responsibilities, and an annual volunteer commitment.20 But the available
evidence suggests that his pain was initially manageable, then progressed to the point of
warranting focused medical attention and a steroid injection 42 days after vaccination.
Ex. 2 at 43-45.
The subsequent history is consistent with a fairly moderate SIRVA injury. One
month later, his shoulder was “definitely better” but featured “sharp pains with reaching
out or doing certain things.” Ex. 2 at 30-32. At the first of three PT sessions, he was
assessed to have between 1 – 20% impairment. Ex. 7 at 103. Petitioner expressed
concern that further steroid injections would exacerbate a preexisting eye condition. He
continued to take over-the-counter medications for pain rated at 8/10, and disrupted
sleep. Ex. 3 at 5-7. Eight months after vaccination, in June 2019, Petitioner underwent a
left shoulder arthroscopy with extensive intraarticular debridement, capsular release, and
subacromial decompression. The post-operative diagnosis was adhesive capsulitis with
subacromial impingement. Ex. 3 at 4-5; Ex. 5 at 7-8.
After surgery, Mr. Smith made steady improvement, to the point that he could
perform most activities of daily living without pain. After 25 post-operative PT sessions,
Petitioner still had ongoing pain which disrupted his sleep. He slept in a recliner chair and
17 Ex. 18 at ¶¶ 5-6; see also Ex. 2 at 68 (urgent care records documenting (“UTI”) treated by antibiotic, but
not left shoulder pain or the antibiotic administration site).
18 The medical record provides that Petitioner had fever, gastrointestinal issues, dehydration, some
stomach “rumbling,” no stomach pain, and “some dysuria and urinary urgency.” Ex. 2 at 66-69. Petitioner
also recalls being so ill that he had difficulty walking into the urgent care clinic. Ex. 18 at ¶ 4. However, I do
not see sufficient evidence to support Petitioner’s characterization that he was in “terrible pain” from the
UTI. Brief at 13.
19 See Exs. 12-14 (original affidavits referencing his wife’s cancer diagnosis in 2010 and “many” subsequent
cancer treatments); Ex. 18 at ¶¶ 1-4, 11 (Petitioner’s supplemental affidavit describing his responsibilities,
including driving his wife to oncology appointments 170 miles away from their home).
20 I recognize the recollections that during the volunteer shift, Petitioner modified his role and only performed
paperwork. Ex. 12 at ¶ 5; Ex. 15 at ¶ 1. Petitioner is noted to be right-handed. Ex. 7 at 1.
9

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required Percocet to sleep on “some” nights. Ex. 9 at 24; Ex. 18 at ¶ 8. The orthopedist
endorsed that Petitioner would “always have a little bit of stiffness and weakness in the
shoulder as a result of the shoulder injury related to vaccine administration,” specifically
loss of “about 10% of motion to forward flexion, external rotation, and internal rotation,”
which warranted an ongoing home exercise program. Ex. 10 at 2 (October 2019); see
also Ex. 11 at 1-2 (similar assessments in July 2020 and April 2021); Ex. 18 at ¶ 13 (March
2022 affidavit). Now, approximately four and one-half years after vaccination, Petitioner’s
primary complaint is an inability to externally rotate his left arm to place under his pillow
in bed, while sleeping on his left side, which disrupts his sleep and causes fatigue during
the day. Ex. 11 at 2. However, there is no evidence of ongoing formal treatment or
prescription pain medication. See also Ex. 18 at ¶¶ 7-8.
Respondent’s comparison to Knudson is inapt. In that case, the special master
highlighted the facts that medication, physical therapy, and time were effective – to the
point that the petitioner’s shoulder pain had improved “by about 95%” six months into the
course. Knudson, 2018 WL 6293381, at *8. Ms. Knudson improved even further after
surgery and was deemed recovered and pain-free by ten months after vaccination. Id. at
*9. Because Ms. Knudson’s injury was demonstrably more severe, the sum awarded
therein is a bit too low for this case.
Petitioner’s citation to Wilson is more persuasive, primarily because that
petitioner’s condition progressed and did not achieve meaningful relief until after surgery.
Wilson, 2021 WL 1530731, at *3. Ms. Wilson’s first documented medical attention was
also comparably delayed - 32 days after vaccination, compared to 42 days after
vaccination in the present case. However, Mr. Smith also underwent a steroid injection
and a greater number of PT sessions. I also recognize that the injury complicated Mr.
Smith’s ability to drive his wife to specialized cancer treatments and to maintain their
home. Overall, I find that $125,000.00 is an appropriate award for Mr. Smith’s past
pain and suffering.21
21 Petitioner also cites to Reed while simultaneously acknowledging that his own injury “may not be as
severe.” Brief at 16. Indeed, many cases lack the unique facts recognized by the special master in Reed –
including a failed surgery, long-term reliance on prescription pain medication and pain counseling, and
specific personal circumstances that made her physical limitations more disruptive. See e, g., Stoliker v.
Sec’y of Health & Hum. Servs., No. 17-0990V, 2020 WL 5512534, *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2020);
Rafferty v. Sec’y of Health & Hum. Servs., No. 17-1906V, 2020 WL 3495956, *17 (Fed. Cl. Spec. Mstr. May
21, 2020); Gunter v. Sec’y of Health & Hum. Servs., No. 17-1941V, 2020 WL 6622141 (Fed. Cl. Spec. Mstr.
Oct. 13, 2020); Wilson, 2021 WL 1530731 at *5. I again “emphasize that Reed’s applicability is limited and
there are numerous other opinions which may offer more relevant guidance as to the appropriate quantum
of damages.” Schmitt v. Sec’y of Health & Hum. Servs., No. 19-0021V, 2021 WL 4470101, n. 8 (Fed. Cl.
Spec. Mstr. Aug. 30, 2021).
10

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There are very few reasoned decisions addressing future pain and suffering.
Petitioner has, however, justified his request for this component, primarily because his
treating orthopedist has diagnosed him with a permanent post-surgical disability resulting
from the vaccine injury. Accord Curri, 2018 WL 6273562 at *2; Binette, 2019 1552620 at
*14; Hooper, 2019 WL 1561519 at *9-10. Here, orthopedist documented that Mr. Smith’s
left shoulder continues to have limited forward flexion, internal rotation, and external
rotation, resulting in a 10% disability, and has maintained this assessment despite the
gaps between their appointments.
The orthopedic records and Petitioner’s affidavit also explain that this disability
primarily impedes a particular sleep position, which causes daily fatigue. It does not
equate to the level of disability and personal impacts seen in Hooper or Binette – and
certainly not Mr. Smith’s even higher request of $2,500.00 per year. Rather, his disability
is more similar to that in Dawson-Savard, in which the injured petitioner – who
experienced permanently-decreased range of motion and continued pain but remained
able to perform all physical requirements of her job as a registered nurse – was awarded
$500.00 per year in future pain and suffering.22 Mr. Smith’s disability is also similar to that
in Danielson, in which the injured petitioner – who exhausted treatment options and
periodically reported pain with movement – was awarded $250.00 per year.23
Here, I will award compensation for Petitioner’s future pain and suffering,
but at a lower amount of $250.00 per year, for his expected life expectancy of
approximately 16 years,24 for an initial total of $4,000.00. When reduced to present
value, utilizing the multi-pronged approach I have employed in prior cases, the final
total is $3,748.74.25
22 Dawson-Savard v. Sec’y of Health & Human Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec.
Mstr. July. 14, 2020).
23 Danielson v. Sec’y of Health & Human Servs., 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020).
24 Using the life expectancy calculator found on the Social Security Administration's website, Petitioner is
expected to live another 15.5 years. https://www.ssa.gov/cgibin/longevity.cgi (last visited June 10, 2022).
25 A one percent discount rate is used for the first fifteen years, with a two percent discount rate used for
any additional years. Curri, 2018 WL 6273562, at *7. As in Curri, an online present value calculator was
used to perform the appropriate calculations. 2018 WL 6273562, at *7, n. 4; see also
https://financialcalculators.com/present-value-of-an-annuity-calculator (compounding annually) (last visited
June 10, 2022). Utilizing a one percent discount rate for years 1 through 15, the total of $3,750.00 ($250
multiplied by 15) is reduced to a net present value of $3,499.01. Utilizing a two percent discount rate for
year 16, the total amount of $8,250.00 ($250 multiplied by 1) is reduced to a net present value of $249.73.
11

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V. Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $129,207.48 (representing $125,000.00 for past pain and
suffering, $3,748.74 for future pain and suffering, and $458.74 for past
unreimbursed expenses). 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.26
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
26 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.
12