VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01684
Package ID: USCOURTS-cofc-1_19-vv-01684
Petitioner: Frank Coluccio
Filed: 2019-10-30
Decided: 2022-12-15
Vaccine: influenza
Vaccination date: 2018-10-22
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 80943

AI-assisted case summary:
Frank Coluccio filed a petition alleging he suffered a shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine he received on October 22, 2018. The case was initially contested by the Respondent, who argued that Mr. Coluccio failed to establish a Table claim because his injury did not manifest within 48 hours of vaccination. After a ruling on entitlement, the parties proceeded to damages. Mr. Coluccio presented medical records and declarations detailing his right shoulder pain, which he stated began within a day of the vaccination and gradually worsened. The court found that the evidence preponderated in favor of an onset within 48 hours and that Mr. Coluccio met all the criteria for a Table SIRVA. The court awarded Mr. Coluccio $80,000.00 for actual pain and suffering and $943.47 for unreimbursed out-of-pocket expenses, for a total award of $80,943.47.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01684-0
Date issued/filed: 2022-03-14
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/09/2022) regarding 38 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1684V
UNPUBLISHED
FRANK COLUCCIO, Chief Special Master Corcoran
Petitioner, Filed: February 9, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Onset; Influenza (Flu) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT AND RULING ON ENTITLEMENT1
On October 30, 2019, Frank Coluccio filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on October
22, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 Because this unpublished fact 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 fact 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-01684-UNJ Document 41 Filed 03/14/22 Page 2 of 9
For the reasons discussed below, I find that there is a preponderance of evidence
that the onset of Petitioner’s injury (specifically shoulder pain) occurred within 48 hours
of his vaccination. I otherwise find that Petitioner is entitled to compensation for a right
SIRVA.
I. Relevant Procedural History
This case was initiated on October 30, 2019. Initially, Respondent indicated a
willingness to engage in settlement discussions, but the parties reached an impasse. On
May 24, 2021, Respondent filed a Rule 4(c) Report. ECF No. 30, Respondent’s Rule 4(c)
Report (“Report”). Respondent opposed compensation, arguing in part that Petitioner
failed to establish a Table claim because the records did not established onset of his
injury within 48 hours of Petitioner’s vaccination. Report. at 4-5.
Petitioner filed a Motion for a Ruling on the Record on July 16, 2021, in support of
his claim. Petitioner’s Motion for Ruling on the Record Regarding Onset (“Mot.”), ECF No.
33. Respondent filed a response on July 30, 2021. Respondent’s Response to Petitioner’s
Motion for a Ruling on the Record (“Resp.”), ECF No. 34. Petitioner filed a reply on August
6, 2021. Petitioner’s Reply Brief (“Reply”), ECF No. 36. This matter is now ripe for
resolution.
II. Petitioner’s Medical Records
Mr. Coluccio received a flu vaccine on October 22, 2018 in his right shoulder. Ex.
2 at 1. Twenty-seven days later on November 18, 2018, Petitioner presented to an urgent
care center complaining of right shoulder pain for “3 weeks”. Ex. 3 at 8. Petitioner stated
that his symptoms “occurred after the flu shot”. Ex. 3 at 8. Upon exam, he exhibited a
decreased range of motion and was prescribed ibuprofen and Tylenol for pain control. Id
at 9.
Petitioner saw his primary care physician, Dr. Ruden, on November 20, 2018. Ex.
4 at 89-90. Petitioner was assessed with “Tendonitis from flu[]shot.” Id. at 89.3
Petitioner was next seen on December 7, 2018. Ex. 4 at 91. At that time, he
complained of arm pain and numbness for over two months with no history of trauma and
“Pain after flu vax…”. Id.4 Petitioner exhibited a reduced range of motion with weakness
3 The records state that Petitioner’s diagnoses includes “Shoulder impingement syndrome, left/ Adhesive
capsulitis, R/o RTC tear….”
4 There is also a reference to left-sided arm pain, which appears to be an error because only Petitioner’s
right shoulder was examined. See ex. 4 at 93.
2

Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 3 of 9
in his right shoulder along with signs of impingement. Ex. 4 at 93-94. He was diagnosed
with impingement syndrome and adhesive capsulitis. Id. at 97. An MRI revealed
tendinosis, tendinitis, and mild to moderate bursitis in his right shoulder. Ex. 5 at 4-5.
Petitioner had a follow-up appointment on December 14, 2018. He reported a
history of right shoulder pain “after flu vax”. Ex. 4 at 99. Upon examination, Petitioner
exhibited reduced strength and reduced range of motion. Id. at 101-102. He was
assessed with impingement, syndrome, adhesive capsulitis, and calcific bursitis. Id. 99-
106. He also received a cortisone injection at that time. Id. at 106.
Between January 1, 2019 and March 22, 2019 Petitioner attended 19 physical
therapy sessions. Ex. 6. At his initial evaluation, he reported right shoulder pain following
a flu shot on October 22, 2018. Ex. 6 at 4. Petitioner reported “pain in his shoulder the
following day which he attributed to soreness but … note[d] the pain ha[d] gotten
progressively worse over the past few months.” Id. Additionally, “flu shot” was listed as
the mechanism of onset. Id.
Petitioner continued to complain of right shoulder pain at follow-up appointments
with his primary care physician on January 22, 2018 and March 22, 2019. Ex. 4 at 107,
111. He presented to an orthopedist, Dr. Catalano, on April 23, 2019 for continued
shoulder pain, stating that “he had a flu shot on 10/22/2018, 7 days after [he] felt great
pain with numbness in the right hand.” Ex. 7 at 2. Petitioner was assessed with right
shoulder capsulitis and ulnar nerve palsy of the right upper extremity. Id. at 4. A follow-up
with Dr. Catalano on June 7, 2019 indicated that Petitioner’s right shoulder was improving,
but that he still experienced pain. Id. at 5-6.
III. Affidavit Evidence
Mr. Coluccio submitted two declarations in support of his petition. Exs. 1, 11. In the
first, he stated that he received a flu shot on October 22, 2018 and “had some pain” but
was not “immediately concerned. Ex. 1 at 1. However, by the next day his pain increased
and gradually worsened “over the next several weeks. Id. Petitioner reiterated in his
supplemental declaration that he initially felt pain in his right shoulder following his flu
shot, and it gradually worsened over the following weeks. Ex. 11 at 1-2. Petitioner also
stated that, when he spoke with medical providers, he did his best to “estimate how much
time had passed” since he received the flu shot, and that his symptoms started within a
day of the vaccine and worsened significantly “about one week later.” Id. at 2.
Mr. John Winter, Petitioner’s domestic partner, submitted a declaration in this
matter. Ex. 10. He stated that he also received a vaccine on October 22, 2018 and had
3

Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 4 of 9
some initial discomfort. However, where his shoulder pain resolved within 24-36 hours,
Mr. Winter stated that Petitioner continued to report pain that gradually worsened. Id. at
1-2.
Amy Winter, John Winter’s daughter, and Allison Coluccio, Petitioner’s niece, also
submitted declarations in this matter adding additional corroborating statements. Ex. 12,
13.
IV. Parties’ Arguments
Respondent argues that Petitioner has failed to show onset of his pain occurred
within 48 hours of his vaccination. Report at 4. Respondent notes that Petitioner’s medical
records do not establish a definite date of onset for his symptoms, and otherwise employ
vague phrases that make it difficult to determine whether his pain likely began within 48
hours after his vaccine. Id. at 4-5, Reply at 2-3.
Petitioner argues that the evidence establishes onset of his injury within 48 hours
of his vaccination. Mot. at 3. Petitioner also argues that there is preponderant evidence
that he suffered a SIRVA injury, and in the alternative that his injury was caused in fact
by the October 22, 2018 flu vaccine. Reply at 7-8.
V. Fact Findings and Ruling on Entitlement
At issue is whether Petitioner meets the requirements for a SIRVA as set forth in
the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”). Specifically,
the parties dispute whether Petitioner’s symptoms (specifically pain) occurred within 48
hours. 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI).
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,5 a
petitioner must establish that he suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
he received. Section 11(c)(1)(C).
5 In summary, a petitioner must establish that he received 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; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for his injury. See § 11(c)(1)(A)(B)(D)(E).
4

Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 5 of 9
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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).
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. 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 & Hum. 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 & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
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The United States Court of Federal Claims has also recognized that “medical
records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Hum. 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 & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
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 & Hum. 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 & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir.
2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
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 & Hum. 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).
A. Factual Findings Regarding QAI Criteria for Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
supports each of the QAI requirements for a Table SIRVA.
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Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 7 of 9
1. Petitioner has no Prior Right Shoulder Condition or Injury
The first requirement under the QAIs for a Table SIRVA is a lack of problems
associated with the affected shoulder prior to vaccination that would explain the
symptoms experienced after vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has
not contested that Petitioner meets this criterion, and I find that he has demonstrated a
lack of history of pain, inflammation, or dysfunction of his right shoulder that would explain
his symptoms. See Ex. 4 at 69-85 (records from the period prior to Petitioner’s vaccination
that include no history of prior shoulder pain).
2. Onset of Petitioner’s Injury was within Forty-eight Hours of his Flu
Vaccination
Preponderant evidence supports the conclusion that onset of Petitioner’s injury
was within 48 hours of vaccination. The following finding of fact is based on a complete
review of the record, including all medical records, declarations, and additional evidence
filed. Specifically, I highlight the following:
• Petitioner received a flu vaccine in his right shoulder on October 22, 2018.
Ex. 2 at 1.
• On November 18, 2018, Petitioner complained of right shoulder pain that
“occurred after the flu shot.” Ex. 3 at 8. The records indicate that Petitioner
affirmatively linked his shoulder pain to the flu vaccine at this time.
• Petitioner complained of continued shoulder pain on December 7, 2018. Ex.
4 at 91. The record reports Petitioner had arm pain for over two months with
no history of trauma. The record again links Petitioner’s pain to his flu
vaccine, stating “pain after flu vax”. Id. at 91.
• Petitioner reported continued right shoulder pain on December 14, 2018.
Ex. 4 at 99. The record states pain “after flu vax”. Id.
• At the initial physical therapy evaluation, Petitioner reported right shoulder
pain following a flu shot on October 22, 2018. Ex. 6 at 4. Petitioner reported
“pain in his shoulder the following day which he attributed to soreness but
… note[d] the pain ha[d] gotten progressively worse over the past few
months.” Id. Additionally, “flu shot” was listed as the mechanism of onset.
Id.
Based on the above, Table onset is evidentiarily established. Even if the initial
record evidence of Petitioner’s first complaint of shoulder pain is a bit vague, it is not
7

Case 1:19-vv-01684-UNJ Document 41 Filed 03/14/22 Page 8 of 9
inconsistent with his contentions, and his witness statement is also reasonably taken into
account. All other records thereafter consistently identify onset as immediately after
vaccination and repeatedly link his pain to the flu vaccine.
Further, Petitioner acknowledged that the initial record evidence may be vague
because he did his best to estimate how much time passed since his pain started. Ex. 11
at 1-2. He also stated that his pain occurred within a day of receiving the vaccine, and
gradually worsened thereafter. Ex. 1 at 1, Ex. 11 at 1-2. The declaration evidence
submitted in this matter provide additional corroborating evidence. See, e.g., Exs. 10 at
1-2, 12, 13.
3. Petitioner’s Pain was Limited to his Right Shoulder
The third requirement under the QAIs for a Table SIRVA is that Petitioner’s pain
and recued range of motion is limited to the shoulder in which he received a vaccine. 42
C.F.R. § 100.3(c)(10)(iii). Respondent has not contested that Petitioner meets this
criterion, and I find that he has demonstrated pain and reduced range of motion only in
his right shoulder. See Ex. 4 at 91, 95 (reporting only right shoulder pain and reduced
range of motion since he received his flu shot).
4. There is No Evidence of Another Condition or Abnormality
The last QAI criteria for a Table SIRVA states that there must be no other condition
or abnormality which would explain petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent has not contested that Petitioner meets this criterion, and
there is no evidence in the record to the contrary. Thus, the record contains preponderant
evidence establishing that there is no other condition or abnormality which would explain
the symptoms of Petitioner’s right shoulder injury.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received flu vaccine intramuscularly in his right
shoulder on October 22, 2018, in New York, NY. Ex. 2 at 1; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for his injury. Ex. 1 at 2; Section 11(c)(1)(E) (lack of prior civil
award).
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As stated above, I have found that the onset of Petitioner’s right shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this QAI
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the severity of his
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his right shoulder injury for more than six months or that his
condition resulted in inpatient surgical intervention. See Section 11(c)(1)(D)(i), (iii)
(statutory severity requirement). The records demonstrate, and Respondent does not
contest, that Petitioner suffered the residual effects of his shoulder injury for more than
six months. See, e.g., Ex. 7 at 5-6. Thus, this requirement is also met.
Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
VI. Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that the onset of Petitioner’s injury, specifically shoulder pain, was within 48 hours
of his vaccine. Further, based on 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
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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01684-1
Date issued/filed: 2022-12-15
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 11/14/2022) regarding 49 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:19-vv-01684-UNJ Document 53 Filed 12/15/22 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1684V
UNPUBLISHED
FRANK COLUCCIO, Chief Special Master Corcoran
Petitioner, Filed: November 14, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on the Record; Influenza (Flu)
HUMAN SERVICES, Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 30, 2019, Frank Coluccio filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on October
22, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 Because this unpublished fact 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 fact 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-01684-UNJ Document 53 Filed 12/15/22 Page 2 of 8
For the reasons set forth below, I award $80,000.00 in compensation for actual
pain and suffering, plus $943.47, representing out-of-pocket unreimbursed expenses.
I. Relevant Procedural History
After the case’s initiation three years ago, Respondent indicated a willingness to
engage in settlement discussions, but the parties reached an impasse. Accordingly, on
May 24, 2021, Respondent filed a Rule 4(c) Report. ECF No. 30, Respondent’s Rule 4(c)
Report (“Report”). Respondent opposed compensation, arguing in part that Petitioner
failed to establish a Table claim because the records did not show onset of his injury
within 48 hours of Petitioner’s vaccination. Report. at 4-5.
Petitioner filed a Motion for a Ruling on the Record on July 16, 2021, in support of
his claim. Petitioner’s Motion for Ruling on the Record Regarding Onset, ECF No. 33.
Respondent filed a response on July 30, 2021. Respondent’s Response to Petitioner’s
Motion for a Ruling on the Record, ECF No. 34. Petitioner filed a reply on August 6, 2021.
Petitioner’s Reply Brief, ECF No. 36. On February 9, 2022, I issued a ruling finding
Petitioner was entitled to compensation. ECF No. 38.
The parties thereafter attempted to settle damages, but on April 11, 2022,
Petitioner filed a status report indicating that he had rejected Respondent’s proffer and
requested a briefing schedule. ECF No. 42. Petitioner filed a motion for a ruling on the
record with regard to damages on June 9, 2022. ECF No. 44, Petitioner’s Motion for
Ruling on the Record with Regard to Damages and Brief in Support of Damages (“Mot.”).
Petitioner requests an award of $75,000.00 for pain and suffering, plus $943.47 for
unreimbursed out-of-pocket expenses. Id. at 17.
Respondent filed his own brief regarding damages on June 22, 2022. ECF No. 45,
Respondent’s Response to Petitioner’s Brief in Support of Damages (“Opp.”).
Respondent proposed an award of $50,000.00 for pain and suffering, but did not dispute
the $943.47 sought for unreimbursable expenses. Id. at 2. (Accordingly, that sum will be
included in the final award).
Petitioner filed a reply on June 29, 2022, addressing Respondent’s arguments.
ECF No. 47, Petitioner’s Reply Brief in Support of Damages (“Reply”).
II. Petitioner’s Medical Records
Mr. Coluccio received the flu vaccine on October 22, 2018, in his right shoulder.
Ex. 2 at 1. Twenty-seven days later on November 18, 2018, Petitioner presented to an
2

Case 1:19-vv-01684-UNJ Document 53 Filed 12/15/22 Page 3 of 8
urgent care center complaining of right shoulder pain for “3 weeks”. Ex. 3 at 8. Upon
exam, he exhibited a decreased range of motion and was prescribed ibuprofen and
Tylenol for pain control. Id at 9-10. Two days later, Petitioner saw his primary care
physician, Dr. Ruden, on November 20, 2018. Ex. 4 at 89-90. Petitioner was assessed
with “Tendonitis from flu[]shot” and diagnosed with impingement syndrome and adhesive
capsulitis Id.
Petitioner was next seen on December 7, 2018. Ex. 4 at 91. At that time, he
complained of arm pain and numbness for over two months with no history of trauma and
“Pain after flu vax…”. Id.3 At that time, Petitioner rated his pain as 7-10 out of 10 with
certain motions. Id. Petitioner exhibited a reduced range of motion with weakness in his
right shoulder along with signs of impingement. Id. at 93-94. He was diagnosed with
impingement syndrome and adhesive capsulitis. Id. at 97. An MRI and x-rays on
December 7, 2018, revealed tendinosis, tendinitis, and mild to moderate bursitis in his
right shoulder. Ex. 5 at 4-5.
Petitioner had a follow-up appointment on December 14, 2018. Upon examination,
Petitioner exhibited reduced strength and reduced range of motion. Ex. 4 at 101-102. He
was assessed with impingement, syndrome, adhesive capsulitis, and calcific bursitis. Id.
99-106. He also received a cortisone injection at that time. Id. at 106.
Between January 11, 2019, and March 22, 2019, Petitioner attended 19 physical
therapy sessions. Ex. 6. At his initial evaluation, he reported right shoulder pain following
a flu shot on October 22, 2018. Ex. 6 at 4. Petitioner reported “pain in his shoulder the
following day which he attributed to soreness but … note[d] the pain ha[d] gotten
progressively worse over the past few months.” Id.4
Petitioner continued to complain of right shoulder pain at follow-up appointments
with his primary care physician on January 22, 2018. Ex. 4 at 107. At that time, he stated
he “[h]ad shot of steroids in arm without imporvement [sic] and in P[hysical] T[herapy]”.
Id. On March 22, 2019, Petitioner again complained of shoulder pain, stating his shoulder
was still “stiff” and “needs to see where we go”. Id. at 111.
Petitioner presented to an orthopedist, Dr. Catalano, on April 23, 2019, for continued
shoulder pain, stating that “he had a flu shot on 10/22/2018, 7 days after [he] felt great
pain with numbness in the right hand.” Ex. 7 at 2. Dr. Catalano noted that Petitioner had
3 There is also a reference to left-sided arm pain, which appears to be an error because only Petitioner’s
right shoulder was examined. See ex. 4 at 93.
4 Petitioner also reported intermittent numbness in his pinky finger and pain radiating into his forearm. Ex.
6 at 4.
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a steroid injection but “no relief.” Id. Petitioner reported that “[o]verall pain has improved”
but “painful when sleeping on right side, and unable to carry groceries more than a block
without shooting pain.” He also estimated that he was 60% better and rated his pain at 5
out of 10. Id. An examination of Petitioner’s right shoulder was unremarkable with no
apparent abnormalities, indicating he had full strength with full range of motion. Id. at 3.5
Petitioner was assessed with right shoulder capsulitis and ulnar nerve palsy of the right
upper extremity. Id. at 4.
A follow-up with Dr. Catalano on June 7, 2019, indicated that Petitioner’s right
shoulder was improving, but that he still experienced pain. Id. at 5-6. Dr. Catalano also
noted “no need for a [corticosteroid injection] or surgery at this point.”
III. Affidavit Evidence
Mr. Coluccio submitted two declarations in support of his claim. Exs. 1, 11. In the
first, he stated that he had received a flu vaccine on October 22, 2018, and “had some
pain” but was not “immediately concerned”. Ex. 1 at 1. However, by the next day his pain
increased and gradually worsened “over the next several weeks.” Id. Petitioner reiterated
in his supplemental declaration that he initially felt pain in his right shoulder following his
flu shot, and it gradually worsened over the following weeks. Ex. 11 at 1-2. He also
described how his injury has impacted his daily life. Id. at 2-3.
Mr. John Winter, Petitioner’s domestic partner, submitted a declaration in this
matter. Ex. 10. He stated that he also received a vaccine on October 22, 2018, and had
some initial discomfort. However, where his shoulder pain resolved within 24-36 hours,
Petitioner continued to report pain that gradually worsened. Id. at 1-2. Mr. Winter also
described how Petitioner’s shoulder injury impacted his daily life. Id.
Amy Winter, John Winter’s daughter, and Allison Coluccio, Petitioner’s niece, also
submitted declarations in this matter adding additional corroborating statements. Ex. 12,
13.
5 Petitioner disputes this, noting that Dr. Catalano described Petitioner’s range of motion as “elevation 150,
ER [external rotation] 50, IR [internal rotation] to beltline.” Ex. 7 at 3. Petitioner notes that normal elevation
has a range of 150-180 degrees, external rotation has a range of 90 degrees, and internal rotation has a
normal range of 70-90 degrees. The records indicate that Petitioner’s range of motion was below normal,
describing elevation as 150, however normal elevation has a range of 150-180. Reply at 1-2.
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IV. Damages
The damages dispute in this case is limited to the proper amount of pain and
suffering. Petitioner requests an award of $75,000.00 (Mot. at 17), while Respondent
argues that an award of $50,000.00 is reasonable in this case. Opp. at 10.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion in Sections III and IV of Leslie v. Sec’y
Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28,
2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021).
In sum, 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). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). 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.6
B. Appropriate Compensation for Pain and Suffering
Awareness of the injury is not disputed, leaving only the severity and duration of
that injury to be considered. In determining appropriate compensation for pain and
suffering, I have carefully reviewed and taken into account the complete record in this
case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
6 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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Citing three prior damages decisions awarding between $60,000.00 and
$85,000.00 for actual pain and suffering,7 Mr. Coluccio requests $75,000.00. Mot. at 13-
17. In particular, Petitioner emphasizes that he actively treated for approximately 7.5
months, and that his treatment involved nineteen physical therapy sessions, an MRI, x-
rays, various anti-inflammatory medications, a cortisone injection, and numerous doctors’
appointments. Mot. at 6-9. Petitioner also argues that his symptoms were severe (pain of
7 out of 10) for at least two months, and moderate for the remaining treatment period.
Respondent, by contrast, submits that an award of $50,000.00 is appropriate for
pain and suffering. Opp. at 8-10. Respondent argues that Petitioner suffered a
comparatively minor injury and received only conservative treatment, including one round
of physical therapy, a steroid injection, and three appointments with medical practitioners.
Id. at 5-6. Respondent cites to four cases in support of his position.8
The medical records establish that Petitioner suffered a moderate SIRVA for
approximately six months, with moderate lingering pain for at least an additional three
months thereafter. Petitioner initially reported arm pain on November 18, 2018,
approximately three weeks after his vaccination. Ex. 3 at 8. His pain is not quantified until
December 7, 2018, when he rated it as 7-10 out of 10 with certain motions. Ex. 4 at 91.
Petitioner received a cortisone injection on December 14, 2018 (id. at 106), which
reportedly provided no relief. Id. at 107. However, he showed gradual improvement
throughout his nineteen physical therapy sessions between January 11, and March 22,
2019. During that time, his symptoms decreased, and he showed gradual improvement
until he reached a plateau on March 18, 2019. See Ex. 6 at 9 (record from January 16,
2019, reporting shoulder still sore, but mobility improved); id. at 19 (record from January
30, 2019, noting Petitioner’s shoulder improved since starting physical therapy with
increased mobility); id. at 41 (record from March 18, 2019, stating Petitioner reported his
progress had plateaued). By April 23, 2019, Petitioner reported that he was approximately
60% better, but still rated his pain as 5 out of 10. Ex. 7 at 2.
7 Celuch v. Sec’y of Health & Hum. Servs. No. 18-544V, 2021 WL 2368137 at *5 (Fed. Cl., 2021) (awarding
$70,000.00 in pain and suffering); Morrison-Langehough v. Sec’y of Health & Hum. Servs., No. 19-1103V,
2022 WL 1863924, at *11 (Fed. Cl., 2022) (awarding $70,000.00 in pain and suffering); Hartman v. Sec’y
of Health & Hum. Servs., No. 19-1106V, 2022 WL 444456, at *6 (Fed. Cl., 2022) (awarding $75,000.00 in
pain and suffering).
8 Ramos v. Sec’y of Health & Hum. Servs., No. 18-1005V, 2021 WL 688576, at *2-3 (Fed. Cl. Spec. Mstr.
Jan. 4, 2021) (awarding $40,000.00 for past pain and suffering); Rayborn v. Sec’y of Health & Hum. Servs.,
No. 18-0226V, 2020 WL 5522948, at *2-3 (Fed. Cl. Spec. Mstr. Aug. 14, 2020) (awarding $55,000.00 for
pain and suffering); Norton v. Sec’y of Health & Hum. Servs., No. 19-1432V, 2021 WL 4805231, at *5-6
(Fed. Cl. Spec. Mstr. Sept. 14, 2021) (awarding $55,000.00 in pain and suffering); and Clendaniel v. Sec’y
of Health & Hum. Servs., No. 20-213V, 2021 WL 4258775 (Fed. Cl. Spec. Mstr. Aug. 18, 2021) (awarding
$60,000.00 in pain and suffering).
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Petitioner’s range of motion also gradually improved during that period, reporting
increased mobility during his treatment period. See Ex. 6 at 19 (record from January 30,
2019, noting Petitioner’s shoulder has improved since starting physical therapy with
increased mobility). The later records from April 2019 indicate Petitioner exhibited full
strength and good range of motion. However, Petitioner called into question the accuracy
of these records at least with regard to Petitioner’s shoulder mobility as they indicate he
continued to have decreased range of motion at that time. Reply at 1-2. Further, as of
June 7, 2019, Dr. Catalano indicated there was “no need for a [corticosteroid injection] or
surgery at this point.” Ex. 7 at 5-6.
These factors support the conclusion that Petitioner’s SIRVA was largely moderate
for approximately six months, with some lingering pain and reduced range of motion for
at least an additional two months. Further, Petitioner’s treatment was conservative, and
exceeded the six-month period required for severity, but not by much. Nevertheless,
although this is unquestionable a moderate SIRVA (that did not require surgical
intervention), I do not deem the award proposed by Respondent to be proper. As
Petitioner points out in his reply, the cases cited by Respondent involve injuries that were
not as severe, petitioners that waited significantly longer for treatment, courses of
treatment that were more effective, and pain levels significantly milder than Petitioner
described.9
Rather, I find that the $75,000.00 requested by Petitioner is more in line with the
best relevant comparables. The SIRVA cases cited by Petitioner involved similar courses
of treatment over comparable time periods. For example, in Hartman, the petitioner was
awarded $75,000.00 for a moderate injury that involved conservative treatment including
twenty physical therapy sessions over five months. However, certain factors suggest that
here, Petitioner’s pain and suffering was more severe than in Hartman. Petitioner
received a cortisone injection, which was unsuccessful. Further, five months after his
vaccination Petitioner reported he was only 60% improved, suggesting his treatment was
not extremely successful.
Taking all of the above into account, I find that this case presents the rare
circumstance where an award a bit higher than what Petitioner requests is appropriate.
Special masters are empowered to determine “reasonable” damages and are never
bound by the parameters of what the parties propose, but can when appropriate go above
9 Ramos, 2021 WL 688576, at *5 (petitioner delayed four months to seek treatment and initially reported
pain as 3 out of 10); Rayborn, 2020 WL 5522948 at *2-3 (petitioner delayed four months and reported pain
between 2 and 6 out of ten during her treatment period); Norton, 2021 WL 4805231 at *6 (petitioner’s injury
was found to be mild and ultimately pain-free seven months post vaccination); and Clendaniel, 2021 WL
4258775 at *8 (petitioner treated for 14 months, but experienced significant relief at times resulting in long
periods of no treatment).
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or below even one side’s outermost bound. Here, I find that the relevant comparables
describe suffering that was slightly less overall than what Mr. Coluccio experienced. As a
result, I will award $80,000.00 for his actual pain and suffering.
V. Conclusion
Accordingly, for all of the reasons discussed above and based on consideration of
the record as a whole, $80,000.00 represents a fair and appropriate amount of
compensation for Mr. Coluccio’s actual pain and suffering. 10 I also grant Mr.
Coluccio’s request for $943.47 for past unreimbursed medical expenses.
I approve a Vaccine Program award in the total amount of $80,943.47, to be
made to Petitioner. In the absence of a motion for review filed pursuant to RCFC
Appendix B, the Clerk of the Court is directed to enter judgment herewith.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.
8