VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01953
Package ID: USCOURTS-cofc-1_19-vv-01953
Petitioner: Randy Nolen
Filed: 2019-12-26
Decided: 2023-04-14
Vaccine: Tdap
Vaccination date: 2018-10-05
Condition: right-sided shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 126323

AI-assisted case summary:
On December 26, 2019, Randy Nolen filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he developed a right-sided shoulder injury related to vaccine administration (SIRVA) following a tetanus, diphtheria, and acellular pertussis (Tdap) vaccination he received on October 5, 2018. Mr. Nolen was 64 years old at the time of vaccination. The respondent filed a report on May 17, 2021, conceding that Mr. Nolen met the criteria for a presumed SIRVA as defined by the Vaccine Injury Table and that compensation was appropriate. A ruling on entitlement was issued on June 11, 2021, finding Mr. Nolen entitled to compensation, and the matter proceeded to the damages phase. The parties were unable to resolve damages informally, leading to a decision by Special Master Herbrina Sanders on April 14, 2023. Mr. Nolen's pre-vaccination medical history included surgery for malignant melanoma in 2000, cervical spine surgery in 2011, and management of chronic headaches with a neurostimulator since 2008, along with prescriptions for etodolac, trazodone, aspirin, and lorazepam. Following the Tdap vaccine administered in his right deltoid, Mr. Nolen reported right arm pain and decreased range of motion eleven days later, on October 16, 2018. He was treated with a steroid pack. By October 22, 2018, his pain limited his arm movement, and steroid treatment provided minimal relief. An emergency room visit on October 26, 2018, noted new pain in his right wrist, a twinge in his arm, and facial numbness, with an X-ray showing degeneration in the right acromioclavicular joint and a CT scan showing cervical spine osteoarthritis. An EMG/NCS on November 1, 2018, revealed no abnormalities. He consulted an orthopedist on November 12, 2018, reporting occasional right ulnar numbness and a brief episode of right-sided facial numbness, with a diagnosis of an unspecified shoulder injury and a second steroid injection. A neurologist on November 27, 2018, could not conclusively determine the cause of his shoulder injury, noting no denervation in tested arm muscles but also that an MRI could not be performed due to his nerve stimulator. He saw an ENT specialist on December 14, 2018, for a neck mass noticed around October 23, 2018, followed by a brief episode of right-sided facial numbness. His shoulder symptoms persisted, leading to surgery on February 13, 2019, which included arthroscopic rotator cuff repair, biceps tenodesis, subacromial decompression with acromioplasty, and axillary nerve decompression. Post-surgery, he reported diminished pain, swelling, and tingling. He underwent twenty-two physical therapy sessions over three months, with discharge in May 2019 noting a 39% perceived disability and pain levels of 3/10 to 6/10 with overuse. A follow-up with his orthopedist on July 1, 2019, showed full range of motion and strength, though he experienced intermittent numbness with certain movements. Mr. Nolen filed a functional capacity evaluation in April 2021, performed by Steve Allison, D.P.T., which diagnosed chronic right shoulder and neck pain, intermittent right upper extremity cervicobrachial radiculitis, and a right shoulder rotator cuff tear, axillary nerve neuritis, and biceps tendon partial tear. The FCE indicated occasional limitation reaching overhead on the right, moderate range of motion loss, and a loss of work capacity for house repair work, with a poor prognosis for significant improvement. A forensic accountant, Chad M. Garland, estimated Mr. Nolen's total lost compensation to be between $132,761.20 and $189,229.58. Mr. Nolen sought compensation for pain and suffering and lost wages. Respondent argued against significant awards for pain and suffering, citing Mr. Nolen's pre-existing conditions and employer accommodations, and disputed the lost wages claim due to insufficient evidence. Special Master Sanders awarded Mr. Nolen $125,000.00 for actual pain and suffering and $1,323.78 for unreimbursed expenses, totaling $126,323.78. The claim for lost wages was denied due to a lack of sufficient supporting evidence, as the evidence showed a decline in independent contracting work that correlated with his employment at JL Builders, which began before his vaccination, and his employer at JL Builders had made accommodations allowing him to continue working. The Special Master did not consider the neck injury for damages, as the concession was limited to SIRVA and its sequelae, and causation for the neck injury was not established in the damages phase. Petitioner was represented by Frank Mell Ferrell, and Respondent was represented by Sarah Black Rifkin.

Theory of causation field:
Petitioner Randy Nolen, age 64, received a Tdap vaccine on October 5, 2018. He alleged a right-sided shoulder injury related to vaccine administration (SIRVA). Respondent conceded that Petitioner met the criteria for a presumed SIRVA on the Vaccine Injury Table. The case proceeded to determine damages. Petitioner sought compensation for pain and suffering and lost wages. Petitioner's medical records indicated onset of right arm pain and decreased range of motion eleven days post-vaccination, leading to surgery including rotator cuff repair and nerve decompression, followed by physical therapy. A functional capacity evaluation performed over two years after treatment noted residual limitations. Petitioner's claim for lost wages was based on his inability to continue independent contracting work, supported by a forensic accountant's report. Respondent argued against significant awards for pain and suffering due to pre-existing conditions and employer accommodations, and disputed lost wages due to insufficient evidence. Special Master Herbrina Sanders awarded $125,000.00 for actual pain and suffering and $1,323.78 for unreimbursed expenses, totaling $126,323.78. Lost wages were denied as evidence showed a decline in independent contracting work correlating with pre-vaccination employment and employer accommodations. The Special Master did not consider a claimed neck injury for damages, as the concession was limited to SIRVA and its sequelae, and causation was not established in the damages phase. Petitioner was represented by Frank Mell Ferrell, and Respondent by Sarah Black Rifkin. Decision dated April 14, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01953-0
Date issued/filed: 2021-06-28
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/11/2021) regarding 21 Ruling on Entitlement. Signed by Special Master Herbrina Sanders. (arm) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01953-UNJ Document 25 Filed 06/28/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 11, 2021
* * * * * * * * * * * * * * *
RANDY NOLEN, * No. 19-1953V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Ruling on Entitlement; Conceded;
AND HUMAN SERVICES, * Tetanus-diphtheria-acellular-pertussis
* (“Tdap”) Vaccine; Shoulder Injury Related
Respondent. * to Vaccine Administration (“SIRVA”)
* * * * * * * * * * * * * * *
RULING ON ENTITLEMENT1
On December 26, 2019, Randy Nolen (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“the Program”). Pet. at 1, ECF No. 1; 42
U.S.C. § 300aa-10 to -34 (2012). Petitioner alleges that he developed a right-sided shoulder injury
related to vaccine administration (“SIRVA”) as a result of the tetanus-diphtheria-acellular-
pertussis vaccine he received on October 5, 2018. Pet. at 1, 4.
On May 17, 2021, Respondent filed a report pursuant to Vaccine Rule 4(c) in which he
concedes that Petitioner is entitled to compensation in this case. Resp’t’s Report at 1, ECF No. 19.
Specifically, Respondent concluded that “compensation is appropriate because [P]etitioner meets
the criteria for a presumed SIRVA, as defined by the Vaccine Injury Table.” Id. at 5 (citing 42
C.F.R. §§ 100.3(a), (c)(1); 42 U.S.C. § 300aa-13(a)(1)(B)).
A special master may determine whether a petitioner is entitled to compensation based
upon the record. A hearing is not required. § 300aa-13; Vaccine Rule 8(d). In light of Respondent's
concession and my review of the record, I find that Petitioner is entitled to compensation. This
matter shall now proceed to the damages phase.
1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree
that the identified material fits within the requirements of that provision, such material will be deleted from
public access.

Case 1:19-vv-01953-UNJ Document 25 Filed 06/28/21 Page 2 of 2
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-01953-1
Date issued/filed: 2023-04-14
Pages: 18
Docket text: PUBLIC DECISION (Originally filed: 03/29/2023) regarding 37 DECISION of Special Master. Signed by Special Master Herbrina Sanders. (arm) Service on parties made.
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Case 1:19-vv-01953-UNJ Document 41 Filed 04/14/23 Page 1 of 18
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1953V
Filed: March 29, 2023
RANDY WOODROW NOLEN, Special Master Herbrina Sanders
Petitioner,
v.
Decision Awarding Damages; Pain and
SECRETARY OF HEALTH AND Suffering; Lost Wages; Shoulder Injury
HUMAN SERVICES, Related to Vaccine Administration
(“SIRVA”); Tetanus Diphtheria Acellular
Respondent. Pertussis (“Tdap”) Vaccine
Frank Mell Ferrell, Frank M. Ferrell APLC, Shreveport, LA, for Petitioner.
Sarah Black Rifkin, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 26, 2019, Randy Nolen filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”).
Petitioner alleged that he suffered injuries, including but not limited to, a right shoulder injury
related to vaccine administration (“SIRVA”), following a tetanus, diphtheria, and acellular
pertussis (“Tdap”) vaccination he received on October 5, 2018. Pet. at 1, ECF No. 1. On May 17,
2021, Respondent conceded that “compensation is appropriate because Petitioner meets the criteria
for a presumed SIRVA, as defined by the Vaccine Injury Table.” Resp’t’s Report at 5, ECF No.
19. Respondent stated that “the scope of damages to be awarded are [sic] limited to [P]etitioner’s
right-sided SIRVA and its resulting sequelae only.” Id. at 6. Although a ruling on entitlement in
Petitioner’s favor was issued in June of 2021, the parties have been unable to resolve damages on
their own. See ECF No. 21.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the internet.
In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01953-UNJ Document 41 Filed 04/14/23 Page 2 of 18
For the reasons discussed below, I find that Petitioner is entitled to an award of damages
in the amount $126,323.78, representing $125,000.00 for actual pain and suffering and
$1,323.78 for unreimbursed expenses.
I. Relevant Procedural History
The day after his petition was filed, on December 27, 2019, Petitioner filed several medical
records. Pet’r’s Exs. 1–16, ECF Nos. 6–7. On January 3, 2020, Petitioner filed a statement of
completion. ECF No. 9. On May 17, 2021, Respondent filed his Rule 4(c) report conceding that
Petitioner was entitled to compensation. ECF No. 19. Shortly thereafter, on May 26, 2021,
Petitioner filed a functional capacity evaluation (“FCE”). Pet’r’s Ex. 17, ECF No. 20-2. I issued a
ruling on entitlement on June 11, 2021. ECF No. 21. The parties then attempted to informally
resolve the issue of damages. See, e.g., ECF Nos. 22–24, 26–30. During their discussions,
Petitioner filed an expert report from a certified public accountant on July 22, 2021. Pet’r’s Ex.
18, ECF No. 27. On October 7, 2021, the parties filed a joint status report stating that they “have
come to an impasse and request[ing] that the Court resolve damages in this case.” ECF No. 31. I
ordered the parties to file briefs regarding damages on October 27, 2021. ECF No. 32.
Petitioner filed his damages brief, along with a pharmacy record and witness affidavits, on
December 8, 2021. Pet’r’s Exs. 20–24, ECF No. 33; Pet’r’s Br., ECF No. 34. Respondent filed his
responsive damages brief on January 7, 2022. Resp’t’s Resp., ECF No. 35. Petitioner filed his
reply, including tax documents and correspondence, on February 4, 2022. Pet’r’s Reply, ECF No.
36. This matter is now ripe for adjudication.
II. Petitioner’s Diagnosis and Treatment
Petitioner’s pre-vaccination history was significant for a surgery to excise a malignant
melanoma3 in 2000, and a cervical spine4 surgery in 2011. Pet’r’s Ex. 6 at 13, ECF No. 6-7. He
suffered from chronic headaches and had a neurostimulator placed for pain management in 2008.
Id. Petitioner had an active etodolac5 prescription as of April 1, 2018, also for pain. Id. at 14.
3 A malignant melanoma is a cancerous tumor arising from melanocytes of the skin or other organs.
Dorland’s Illustrated Medical Dictionary 1, 1125 (32nd ed. 2012) [hereinafter “Dorland’s”].
4 The cervical spine refers to the upper seven vertebrae, “constituting the skeleton of the neck.” Dorland’s
at 1749.
5 Etodolac is “a nonsteroidal anti-inflammatory drug used as an analgesic and anti-inflammatory, especially
to treat arthritis[.]” Dorland’s at 652.
2

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Additionally, at the time of his vaccination, Petitioner had prescriptions for trazodone,6 aspirin,7
and lorazepam.8 Pet’r’s Ex. 5 at 5, ECF No. 6-6.
On October 5, 2018, Petitioner received a Tdap vaccine in his right deltoid after stepping
on a nail. Id. at 4. Prior to vaccination, Petitioner had no documented history of right shoulder
complaints. Id. at 6. He was sixty-four years old at the time of vaccination. Id. at 4.
On October 16, 2018, eleven days post vaccination, Petitioner returned to the clinic where
he received his vaccine and reported a ten-day history of right arm pain. Id. at 6. An exam revealed
severe tenderness over the right upper arm and decreased range of motion (“ROM”). Id. Petitioner
was treated with a steroid pack. Id. at 7.
One week later, on October 22, 2018, Petitioner followed up with his primary care
physician, complaining that he was “unable to move his arm since he was given a Tetanus [shot
sixteen] days ago.” Pet’r’s Ex. 6 at 13. He clarified that he was “able to move his arm without
difficulty[,] but movement [was] limited by pain.” Id. Petitioner reported that the steroids
prescribed by the clinic provided “only minimal relief.” Id. Four days later, on October 26, 2018,
Petitioner went to the emergency room and complained that he could not use his right arm. Pet’r’s
Ex. 7 at 3, ECF No. 6-8. He also reported new pain in his right wrist, a twinge in his arm, and some
swelling and numbness in his face. Id. An x-ray revealed degeneration in the right
acromioclavicular joint.9 Id. at 9. A CT of the cervical spine showed mild foraminal encroachment,
moderate disc space loss, and moderate-to-severe osteoarthritis on the right side. Id. at 13.
Petitioner was administered a steroid injection and discharged. Id. at 5.
A November 1, 2018 EMG/NCS revealed no abnormalities. Pet’r’s Ex. 6 at 26–27. On
November 12, 2018, Petitioner consulted an orthopedist for his post-vaccination arm pain and
weakness. Id. He reported occasional right ulnar numbness and a recent episode of right-sided
facial numbness, which resolved after thirty minutes.10 Id. A physical exam revealed tenderness
over the lateral shoulder with mildly decreased ROM and strength at 4/5. Id. at 2–3. Petitioner was
diagnosed with an unspecified shoulder injury, and he received a second steroid injection. Id. at 3.
Two weeks later, Petitioner had a follow-up visit and reported that the injection had not helped to
alleviate his symptoms. Id. at 4.
6 Trazodone is “an antidepressant used to treat major depressive episodes with or without prominent
anxiety[.]” Dorland’s at 1957.
7 Aspirin is acetylsalicylic acid, “a drug having anti-inflammatory, analgesic, and antipyretic effects; it is
the prototype of the nonsteroidal anti-inflammatory drugs whose mechanism of action is inhibition of
prostaglandin synthesis; used for relief of pain, fever, and inflammation and for treatment of arthritis,
osteoarthritis, and rheumatic fever. Because it is a platelet inhibitor, it is also used to reduce the risk of
recurrent transient ischemic attacks, stroke syndrome, thromboembolism following certain surgical
procedures, and initial or recurrent myocardial infarction.” Dorland’s at 166.
8 Lorazepam is “administered orally in the treatment of anxiety disorders and short-term relief of anxiety
symptoms and as a sedative agent, and intravenously or intramuscularly for preanesthetic medication; used
also intravenously to control status epilepticus and as an antiemetic in cancer chemotherapy.” Dorland’s at
1074.
9 The acromioclavicular joint refers to “the synovial joint between the acromion of the scapula and the
acromial extremity of the clavicle[.]” Dorland’s at 20.
10 Petitioner reported that the facial numbness occurred three weeks post vaccination. Pet’r’s Ex. 6 at 26–
27.
3

Case 1:19-vv-01953-UNJ Document 41 Filed 04/14/23 Page 4 of 18
Petitioner saw a neurologist on November 27, 2018, who noted that Petitioner’s shoulder
symptoms started after a Tdap vaccine in the right deltoid but could not conclusively determine
the cause of Petitioner’s shoulder injury. Id. at 21–22. The neurologist noted that Petitioner was
experiencing a high level of pain, despite “no denervation in the biceps, deltoid or the other right
arm muscles tested.” Id. at 21. The neurologist further explained that “[a]n MRI cannot be done to
further assess [Petitioner’s pain]” due to Petitioner’s use of a nerve stimulator to treat pre-existing
chronic headaches. Id. On exam, Petitioner had “subtle decreased sensation to pinprick in the right
index finger and the lateral aspect of the right forearm, but [his] EMG was negative.” Id. The visit
record noted Petitioner’s previous cervical spine surgery, but Petitioner reported that the numbness
and tingling he was experiencing started post vaccination. Id.
On December 14, 2018, Petitioner presented to an ear, nose, and throat (“ENT”) specialist
for evaluation of a mass on the right side of his neck. Pet’r’s Ex. 11 at 6, ECF No. 7-3. Petitioner
reported that he noticed the mass around October 23, 2018, and approximately three days later, he
had a brief episode of right-sided facial numbness. Id. A two-centimeter mobile mass was seen
upon examination of the right side of Petitioner’s neck. Id. at 8.
Petitioner returned to his orthopedist on January 7, 2019, as his shoulder symptoms had
not improved. Pet’r’s Ex. 9 at 6, ECF No. 7-1. Petitioner was referred for surgery. Id. at 6–8.
Another lump appeared on the right of Petitioner’s neck, and he returned to his ENT specialist on
January 25, 2019. Pet’r’s Ex. 11 at 36. Petitioner also reported progressing neck pain. Id. Petitioner
underwent a biopsy that revealed no malignancies. Id. at 38.
On February 13, 2019, Petitioner underwent surgery, including an arthroscopic rotator cuff
repair, biceps tenodesis,11 subacromial decompression with acromioplasty,12 and axillary nerve
decompression.13 Pet’r’s Ex. 9 at 9. At a post-surgical visit one week later, Petitioner reported that
his pain, swelling, and tingling had diminished. Id. at 11.
On February 22, 2019, Petitioner underwent a physical therapy (“PT”) evaluation. Pet’r’s
Ex. 16 at 8, ECF No. 7-8. He reported an average pain level of 2/10. Id. He also explained that his
pain was exacerbated by movement, causing his pain level to worsen to a 4/10. Id. Petitioner began
regular PT sessions. Id.
Continued neck swelling led Petitioner to see another ENT on April 10, 2019. Pet’r’s Ex.
14 at 5, ECF No. 7-6. His specialist noted, “[a] previous [fine-needle aspiration biopsy]14 showed
a few ‘atypical’ cells, not diagnostic for malignancy; these are likely reactive related to his
inflammatory reaction after his TDAP [sic] shot.” Id. A follow-up CT on April 18, 2019, showed
no abnormalities. Pet’r’s Ex. 12 at 4, ECF No. 7-4. A June 2019 skin biopsy from the left side of
11 Biceps tenodesis is the stabilization of the bicep muscle by “anchoring [the bicep] tendon to a bone [the
shoulder], done either surgically or through the use of an orthosis.” Dorland’s at 1882.
12 Subacromial decompression with acromioplasty is the “surgical removal of an anterior spur of the
acromion to relieve mechanical compression [or pressure] of the rotator cuff during movement of the
glenohumeral joint[.]” Dorland’s at 20, 475.
13 Axillary nerve decompression refers to the surgical removal of pressure from the axillary nerve, which
is the “posterior cord of the brachial plexus [in the neck] (C5–C6)[.]” Dorland’s at 475, 1244, 1255.
14 A fine-needle aspiration biopsy is a biopsy wherein the tissue is obtained by the application of suction
through a fine needle attached to a syringe. Dorland’s at 218.
4

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Petitioner’s neck showed actinic keratosis15 and superficial basal cell carcinoma.16 Pet’r’s Ex. 13
at 4, ECF No. 7-5.
Petitioner completed twenty-two PT sessions over three months, before his discharge on
May 16, 2019, with a continuing at-home exercise plan. Pet’r’s Ex. 16 at 101. Discharge records
noted Petitioner had a 39% perceived disability and an average pain level of 3/10. Id. at 98, 100.
The records also noted Petitioner’s pain was elevated to a 6/10 when exacerbated by overuse. See
id. At the time of discharge, his physical therapist summarized that Petitioner “ha[d] appropriate
[right] scapular control with all active ROM. He continue[d] to have pain and discomfort on the
[right] aspect of his neck.” Id. at 101.
Four months post surgery, on July 1, 2019, Petitioner returned to his orthopedist for a
follow-up. Pet’r’s Ex. 9 at 14. Upon exam, Petitioner exhibited full ROM and 5/5 strength. Id. at
16. Petitioner’s orthopedist noted that “after supinating [Petitioner’s] forearm[, Petitioner]
experienced numbness to [his] index and long fingers[.]” Id. at 22. The orthopedist also noted that
“after reaching overhead, [Petitioner] had numbness in [his] superficial radial nerve distribution.”
Id. The treater wrote that “[b]oth numbness complaints were intermittent and resolved during [this]
visit.” Id. Petitioner reported that he had returned to work and was able to lift light objects above
his head. Id. at 14. Petitioner has not filed any additional medical records.
III. Expert Filings
a. Functional Capacity Evaluation (“FCE”)
On April 12–13, 2021, Petitioner underwent a FCE performed by Steve Allison, D.P.T.
Pet’r’s Ex. 17, ECF No. 20-2. Dr. Allison has a doctorate in PT and is board certified in orthopedic
PT. Id. at 8.
Dr. Allison listed Petitioner’s diagnoses as 1) chronic right shoulder and neck pain; 2)
intermittent right upper extremity cervicobrachial radiculitis;17 and 3) a right shoulder rotator cuff
tear, “axillary nerve neuritis,18 and biceps tendon partial tear – pre-op.” Id. at 2. The report filed
by Dr. Allison included results from Petitioner’s residual functional capacity testing and
subsequent identification of his residual physical impairments. Id. at 3. Specifically, Petitioner
exhibited occasional limitation when reaching overhead on the right side. Id. He also exhibited
moderate ROM loss with left and right lateral flexion, right rotation, and right upper extremity
15 Actinic keratosis is “a sharply outlined, red or skin-colored, flat or elevated, verrucous or keratotic growth
that sometimes develops into a cutaneous horn or gives rise to a squamous cell carcinoma. It usually affects
the middle-aged or elderly, especially those of fair complexion, and is caused by excessive exposure to the
sun.” Dorland’s at 982.
16 Superficial basal cell carcinoma is a “carcinoma usually seen on the trunk as a plaque or plaques that are
superficial, slowly spreading, erythematous, and scaly, and have threadlike, raised borders.” Dorland’s at
293.
17 Cervicobrachial radiculitis is “inflammation of the root of a [cervical] and spinal nerve, especially of that
portion of the root that lies between the spinal cord and the intervertebral canal.” Dorland’s at 1571.
18 Axillary nerve neuritis is “inflammation of [the axillary] nerve, with pain and tenderness, anesthesia and
paresthesias, paralysis, wasting, and disappearance of the reflexes[.]” Dorland’s at 1263.
5

Case 1:19-vv-01953-UNJ Document 41 Filed 04/14/23 Page 6 of 18
(“RUE”) abduction. Id. Dr. Allison addressed Petitioner’s occupation and wrote that as a result of
his injury, Petitioner “is now limited to safely participating in fulltime work falling within a
restricted range of medium physical demand[.]” Id. at 7. He noted this included Petitioner’s current
fulltime position as a job site supervisor. Id. However, Dr. Allison noted that with respect to
Petitioner’s work as a house repairer, Petitioner “has a loss of work capacity and he is not capable
of safely returning to [that type of] work.” Id. Dr. Allison advised Petitioner “not [to] return to any
type of work activity or participate in any other life activities that will aggravate or worsen his
condition.” Id. Dr. Allison noted that Petitioner’s “condition has been present for more than [two
and a half] years[.]” Id. at 8. He therefore opined that Petitioner’s “prognosis for any significant
improvement in function is poor.” Id. Dr. Allison advised Petitioner to “allow pain to be his guide
with returning to any future work activity and with participation in other life activities.” Id. at 7.
b. Forensic Accountant Expert Report
Certified public accountant Chad M. Garland completed a report detailing Petitioner’s lost
compensation as a result of his SIRVA. Pet’r’s Ex. 18, ECF No. 27-2. Mr. Garland explained that
“[w]age inflation and discounting were used to calculate [Petitioner’s] total lost compensation for
the remainder of his expected worklife [sic].” Id. at 2. Based on a work life expectancy of seven
years, or alternatively, Petitioner’s stated intention to work for an additional ten years (prior to his
SIRVA), Mr. Garland determined Petitioner’s total lost compensation is estimated to be
$132,761.20 or $189,229.58, respectively. Id. Mr. Garland “used the average wages from
[Petitioner’s] 2015, 2016, and 2017 earnings as reported on his tax returns[]” to arrive at this
estimation. Id.
IV. Affidavits
Petitioner filed a personal affidavit in support of his request for damages. Pet’r’s Ex. 24,
ECF No. 33-5. He recounted his vaccination, injury, treatment regimen, and then focused on his
permanent physical effects. Id. at 5–8. He noted that the physical exam performed by his functional
capacity expert that revealed permanent physical impairments extended over the course of two
days and was “[n]ot a five[-]minute exam” done by his doctor. Id. at 6. Regarding his permanent
impairments, Petitioner stated that use of his right arm “for more than a few minutes[]” causes pain
and numbness. Id. at 5. He cannot lift objects without pain and had to relearn how to do many
things with his left hand. Id.
Petitioner described former hobbies that he can no longer enjoy, including landscaping,
swimming, gardening, golfing, and playing sports. Id. at 5–6. He also discussed his exercise
regimen that no longer includes weight training, boxing, and mixed martial arts (“MMA”). Id. at
6. In addition to his hobbies, Petitioner noted he now uses a muscle relaxer to help him sleep and
takes prescription pain medication daily. Id. He described his injury as life-altering to a greater
degree than in a less active individual. Id. at 5–6.
The loss of income that Petitioner suffered is also described in his affidavit. Id. at 6.
Petitioner asserted that prior to his SIRVA he “had two jobs[,]” one with JL Builders, LLC, and
6

Case 1:19-vv-01953-UNJ Document 41 Filed 04/14/23 Page 7 of 18
his own independent contracting company, Nolen’s Consulting, LLC.19 Id. He admitted that since
his injury, he has been able to continue full-time employment with accommodations from JL
Builders. Id. However, he noted that there is “no guarantee that will continue.” Id. He also listed
four clients of his company, Nolen’s Consulting, and stated that “[a]ll of these clients had to be
released to find someone else to do their work as [he] was unable to continue doing it safely.” Id.
at 7. Petitioner described himself as “strong, self-reliant[,] and capable of performing any type of
work associated with building and construction.” Id. He continued that his “abilities have now
been permanently diminished,” and “there is nothing [the orthopedist] can do to improve [his]
problems.” Id.
Petitioner also filed several witness affidavits in support of his damages request. Pet’r’s
Exs. 21–24. Carl Lapeyrouse is Petitioner’s former employer and exercise partner. Pet’r’s Ex. 21
at 1, ECF No. 33-2. He described Petitioner’s longing for “physically creating and building,”
despite having the “luxury of office attire and office management” that came with his position with
Mr. Lapeyrouse. Id. at 2. Petitioner left his position with Mr. Lapeyrouse to work in construction.
Id. Mr. Lapeyrouse attested to Petitioner’s love of “swinging a hammer [and] getting his hands
dirty.” Id. Following Petitioner’s SIRVA injury, Mr. Lapeyrouse described how Petitioner was
unable to engage in boxing and MMA. Id. Mr. Lapeyrouse asserted that Petitioner’s “decline had
nothing to do with age, but 100% with his shoulder injury due to the SIRVA.” Id.
Petitioner’s wife, Lesia Nolen, also submitted an affidavit and described Petitioner’s injury
as “heartbreaking.” Pet’r’s Ex. 22 at 1, ECF No. 33-3. Mrs. Nolen noted that Petitioner suffers
from pain and numbness every day. Id. at 3. She requested Petitioner be awarded the maximum
amount for pain and suffering, $250,000.00, because this injury has “severely limited his ability
to supplement [their] income by working independently aside from the work he does for JL
Builders.” Id.
Adam Lee, owner of JL Builders, submitted an affidavit on behalf of Petitioner. Pet’r’s Ex.
23, ECF No. 33-4. Mr. Lee explained that he had employed Petitioner since April 1, 2018, six
months prior to vaccination. Id. at 1. While acknowledging that post vaccination, the company
“accommodated [Petitioner] . . . due to his extensive experience in the construction industry[,]”
Mr. Lee noted that Petitioner “can no longer engage in actual construction and this has stopped
him from doing work through his own [independent contracting] company,” Nolen’s Consulting,
LLC. Id. at 2.
V. The Parties’ Arguments
The parties agree Petitioner should be awarded $1,323.78 for recoverable out-of-pocket
expenses. Pet’r’s Br. at 14; Resp’t’s Resp. at 7. Petitioner asserts that “an award of at least
[$200,000.00] for actual pain and suffering should be entered,” and notes that “[a]n award for
future pain and suffering could be in order as well.” Pet’r’s Br. at 14. Respondent disagrees that
any future pain and suffering is applicable in this case and proposes a “sum of $82,500.00 for
[P]etitioner’s actual pain and suffering.” Resp’t’s Resp. at 19. Petitioner also seeks an award of
19 Per Petitioner’s 2017 and 2018 tax documents, Petitioner’s consulting company, Nolen S. Consulting
LLC, also did business as Nolen S. Painting & Home Improvement and Nolen’s Consulting, LLC. See
Pet’r’s Reply at 17–20 (Exhibits 1–3). I will refer to his company interchangeably with these titles.
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$132,76.23 for past and future lost wages. Pet’r’s Br. at 14. Respondent disputes any claim for lost
wages, stating it is “wholly unsupported by the record.” Resp’t’s Resp. at 19.
a. Petitioner’s Arguments
In support of his request for pain and suffering, Petitioner stated that “[t]he defining
elements of damages in this case center around his permanent loss of [ROM] set forth in his [FCE,]
along with the permanent pain and numbness in his right arm.” Pet’r’s Br. at 3. Petitioner noted
that “[h]e is right hand dominant[,] and these ongoing damages have adversely affected his earning
capacity.” Id. Petitioner detailed his current condition to include “daily pain in his right arm and
hand, if used for more than a few minutes,” neck pain, intermittent right shoulder and hand
numbness, sleep disturbances, and limited ROM in his neck and arm. Id. at 5–6. Petitioner’s FCE
documented a moderate loss of physical labor abilities; however, Petitioner argued “what is
moderate to most men, those not involved in building houses, is severe to someone like [him].” Id.
at 8. He also noted “the infliction of emotional damages resulting from [his] loss of ability to
function as the primary breadwinner of the household.” Id.
His lost wages and earnings capacity request, according to Petitioner, is supported by noted
limitations in Petitioner’s ability to lift heavy items and move building materials. Id. at 9. He
described “impairments to his cervical spine with loss of ROM from 56–67% and impairment to
his [RUE] at 44% loss of ROM.” Id. Petitioner also noted the loss of “a significant source of
income.” Id. He explained that in addition to his employment with JL Builders, he owned and
operated Nolen Consulting, that had previously done work for several companies he could no
longer contract with. Id.
Petitioner compared his case to two others wherein the claimants received pain and
suffering amounts of $180,000.00 and $185,000.00, respectively. Id. at 10–12 (citing Hooper v.
Sec’y of Health & Hum. Servs., No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20,
2019) (wherein the petitioner had a severe SIRVA, requiring one cortisone injection, pain
medication, sixty-six PT sessions, a surgery, with only a 50% recovery); Pruitt v. Sec’y of Health
& Hum. Servs., No. 17-757V, 2021 WL 5292022 (Fed. Cl. Spec. Mstr. Oct. 29, 2021) (wherein
the petitioner was treated for a severe SIRVA for four years, received multiple cortisone injections,
and underwent two surgeries)). Regarding the first case, Petitioner conceded that his surgery was
less “extensive” than that in Hooper but argued that the negative impact on his employment
prospects was more severe. Id. at 10. In the Pruitt case, the petitioner’s treatment included two
surgeries, compared to Petitioner’s one. Id. at 12. However, the Pruitt petitioner sustained no
“continuing permanent damages with limited ROM, pain on usage[,] and serious impacts on [the]
job.” Id. Petitioner further asserted that he should receive more than the awards in Hooper and
Pruitt because he suffers from permanently swollen “lymph nodes in his neck that have
necessitated numerous excisions.” Id. at 14. In total, Petitioner asserted that he should be awarded
“at least” $334,085.01, calculated from the sums of $200,000.00 in actual pain and suffering,
$132,761.23 in past and future lost wages, and $1,323.78 in out-of-pocket expenses. Id.
b. Respondent’s Response
In response to Petitioner’s request, Respondent acknowledged entitlement but asserted,
“damages to be awarded are limited to [P]etitioner’s right[-]sided SIRVA and its resulting sequelae
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only.” Resp’t’s Resp. at 1. Respondent scrutinized Petitioner’s pain and suffering request due, in
part, to “Petitioner’s failure to seek treatment since July [of] 2019.” Id. at 9. Respondent asserted
that the pain medication Petitioner took to manage his continued SIRVA pain, etodolac and
lorazepam, had been prescribed pre vaccination for headaches. Id. (citing Pet’r’s Ex. 5 at 5; Pet’r’s
Ex. 6 at 14). There was no pharmaceutical record submitted that articulated a change in conditions
being treated by these medications post vaccination. Id.
Respondent also disputed Petitioner’s FCE results. Id. at 10. Noting that the FCE was
completed “approximately two years after his last SIRVA treatment [in 2019],” Respondent argued
that Petitioner’s medical records created contemporaneously with his treatment are the best
evidence of the extent of his injury. Id. Those records reflect a “good recovery following his
arthroscopic surgery and return[] to work as of July [of] 2019.” Id. According to Respondent, any
limitations documented in a 2021 FCE do not indicate “whether [P]etitioner’s symptoms have
remained constant over time or whether Petitioner has suffered some intervening injury.” Id.
Respondent further asserted that there is no viable claim for lost wages because as
Petitioner concedes, “the owner of JL Builders confirmed that the company has accommodated
[P]etitioner’s needs.” Id. at 8. Petitioner’s claim for lost wages is based on work as an independent
contractor, but Respondent noted that “he has not demonstrated that he was forced to reject or
withdraw from any specific contracts as a result of his 2018 SIRVA injury.” Id. Respondent then
listed several examples of evidence that could be used to “verify [Petitioner’s] employment or
stated income, including but not limited to[,] tax returns, pay stubs, a terminated contract, and/or
letter of withdrawal.” Id. Respondent asserted that Petitioner did not lose any potential contracts,
because his work as a contractor was prior to obtaining “his full-time supervisory position with JL
Builders.” Id. Respondent reasoned that Petitioner’s financial expert “did not contemplate
[P]etitioner’s steady income, as [P]etitioner was not hired by JL Builders until April [of] 2018.”
Id. Furthermore, Respondent noted that Petitioner’s treaters had not limited his employment “due
to his medical needs, or otherwise indicat[ed] that he was medically unable to continue his work.”
Id. at 9.
Respondent discounted Petitioner’s claims that therapy and surgery caused him to miss so
much work that he stopped attending PT. Id. Respondent asserted that Petitioner “has not
submitted any evidence showing that he missed work in the weeks and months immediately
following his vaccination, when he underwent surgery, or when his SIRVA [pain was most
severe].” Id. Respondent also noted that Petitioner did not request compensation for “unpaid leave
from his regular job.” Id.
Respondent likened Petitioner’s claim to three other cases wherein the petitioner received
awards of $97,500.00, $105,000.00, and $118,000.00, respectively. Id. at 22–24 (citing Shelton v.
Sec’y of Health & Hum. Servs., No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21,
2021) (wherein the petitioner delayed reporting shoulder pain, was treated for one year and eight
months, attended twenty-six PT sessions, received three steroid injections, and underwent one
surgery); Weed v. Sec’y of Health & Hum. Servs., No. 18-1473V, 2021 WL 1711800 (Fed. Cl.
Spec. Mstr. Mar. 30, 2021) (wherein the petitioner suffered a severe SIRVA lasting six months,
requiring a surgery and nine PT sessions, but made a nearly full recovery); Schmitt v. Sec’y of
Health & Hum. Servs., No. 19-21V, 2021 WL 4470101 (Fed. Cl. Spec. Mstr. Aug. 30, 2021)
(wherein the petitioner suffered a moderate to severe SIRVA, received two cortisone injections
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over one year apart, attended PT, underwent one surgery, and could no longer lift heavy objects
overhead)). Respondent argued that in all three of these cases, the “petitioners treated for less than
one year; saw improvement with arthroscopic surgery; and largely recovered, albeit with some
residual post-operative shoulder pain.” Id. at 22.
c. Petitioner’s Reply
Petitioner responded to Respondent’s arguments in his reply brief. Pet’r’s Reply. Petitioner
began by arguing that it is “common sense” that his neck swelling and facial numbness are the
result of his vaccination. Id. at 1. He explained that “[t]he injection of any toxic substance into a
portion of the human body where it is not intended, could in fact cause adverse reactions.” Id.
Petitioner further supported this point by citing one of his treater’s statements that his neck masses
are “likely reactive to his inflammatory reaction after his Tdap shot.” Id. at 2 (citing Pet’r’s Ex. 14
at 5).
Petitioner again argued that Respondent did not fully appreciate the comprehensive nature
of his two-day FCE and relied too heavily on the discharge evaluation from Petitioner’s orthopedic
surgeon. Id. Petitioner also noted that the doctor’s notes from his July 1, 2019 orthopedic follow-
up indicated nerve damage to multiple peripheral nerve distributions, muscle weakness, and
stiffness. Id. The FCE added that Petitioner suffered from lifting limitations as well as moderate
impairment to the cervical spine and his RUE. Id. at 4. Petitioner highlighted the conclusions of
the report, including that Petitioner suffers from “valid pain, loss of work capacity, and a loss of
enjoyment of life activities.” Id. at 5.
Petitioner rebutted Respondent’s argument that Petitioner ended treatment because his
condition resolved. Id. at 6. Petitioner asserted that his PT regimen ended because it could lead to
no further improvement. Id. Petitioner summarily dismissed Respondent’s inference that Petitioner
suffered from an intervening injury, calling it a “baseless charge” of “pure speculation.” Id. at 7.
Regarding his lost wages claim, Petitioner disputed Respondent’s assertion that he
provided no evidence in support of this claim. Id. at 8. Petitioner first asserted that building
contractors commonly have several streams of income within the industry. Id. at 7–8. Petitioner
continued that although he did not file supporting documents, that “information was provided to
the expert accountant, and it is tendered that the expert accountant’s report is the best evidence of
lost wages.” Id. at 8. Furthermore, Petitioner stated that this information, although not filed, “was
submitted to [Respondent’s counsel] during an attempt to amicably resolve the case.” Id. In support
of his lost wages and earnings potential request, Petitioner filed the letter containing said
information, dated September 23, 2021. Id. at 12–16 (Exhibit A). He also filed copies of 1099 tax
forms from 2017 and 2018. Id. at 17–18 (Exhibits 1–2). These forms included a tax record of
payment from Precision Drilling Company in 2018 for $5,000.00 and First Data Reporting
Services in 2018 for $64,016.00. Id. (Exhibits 1–2). The payments from First Data were detailed
as monthly invoices in the following amounts: January – $1.00; February – $29,900.00; March –
$14,100.00; April – $12,000.00; May – $5,815.00; June – $0.00; July – $0.00; August – $2,200.00;
September – $0.00; October – $0.00; November – $0.00; and December – $0.00. Id. at 17 (Exhibit
1). Two 1099 forms from 2017 and 2018 recorded payment sums to Petitioner from Centre
Crossing for $10,350.00 and $4,500.00, respectively. Id. at 19 (Exhibit 3).
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Lastly, Petitioner contended that unlike his case, in all of the cases cited by Respondent,
the petitioners had fast and nearly full recoveries and no perceived disability. Id. at 8–10. Petitioner
noted in one of the cases, Shelton, the petitioner did not seek treatment for five months, compared
to his treatment within two weeks. Id. at 8–9. The other two petitioners in Weed and Schmitt were
able to return to hobbies, including swimming, whereas Petitioner is no longer able to swim in his
pool. Id. at 9–10.
VI. Legal Standard
Once entitlement has been decided and damages are to be awarded, “each petitioner
deserves an examination of the specific facts and circumstances in her or his case.” Sakovits v.
Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *3 (Fed. Cl. Spec. Mstr.
June 4, 2020). Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an award not
to exceed $250,000.00.” § 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable
expenses incurred before the date of judgment awarding such expenses which (i) resulted from the
vaccine-related injury for which 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.” § 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
& Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no mathematical formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL
2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently
subjective and cannot be determined by using a mathematical formula.”); Stansfield v. Sec’y of
Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22,
1996) (“[T]he 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 & 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)).
Although pain and suffering in the past was often determined based on a continuum, as
Respondent argues in his brief on damages, that practice was cast into doubt by the Court of
Federal Claims several years ago. See Resp’t’s Resp. at 11. 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 cap of $250,000.00. Graves v. Sec’y of Health & Hum. Servs., 109 Fed.
Cl. 579, 590 (2013). Judge Merow maintained that to do so resulted in “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is compared
to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 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
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spectrum that ends at the cap. Id.
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 &
Hum. 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[]”). While “settled cases and proffers
provide some evidence of the kinds of awards received overall in comparable cases,” they are not
as persuasive as reasoned decisions from a judicial neutral. Sakovits, 2020 WL 3729420, at *3
(emphasis in original). Taken as a whole, however, the data from earlier decisions can be helpful
in awarding appropriate damages, particularly in SIRVA cases.
VII. Prior SIRVA Compensation Within SPU20
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As of
January 1, 2023, 3,031 SPU SIRVA cases have been resolved since the inception of SPU on July
1, 2014. Compensation was awarded in 2,950 of these cases, with the remaining 81 cases
dismissed. Although this case was not assigned to the SPU, consideration of the SPU compensated
cases can provide some insight on an appropriate damages award.
Of the 2,950 compensated cases, 1,677 SPU SIRVA cases involved a prior ruling that the
petitioner was entitled to compensation. In only 148 of these cases was the amount of damages
determined by a special master in a reasoned decision. 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. See,
e.g., Sakovits, 2020 WL 3729420, at *4 (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).
B. Pain and Suffering Awards in Reasoned Decisions
In the 148 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
$90,000.00 as the median amount. Only seven of these cases involved an award for future pain
and suffering, with yearly awards ranging from $250.00 to $1,500.00.21
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 petitioner’s delay in seeking treatment – over six months
20 All figures included in this section are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are available publicly. All figures and calculations cited are
approximate.
21 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).
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in one case. In cases with more significant initial pain, petitioners usually experienced this greater
pain for three months or less. Most petitioners displayed only mild to moderate limitations in
ROM. 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 mild to moderate SIRVAs usually resolved after one to two
cortisone injections and two months or less of PT. None required surgery. Except in one case
involving very mild pain levels, the duration of the SIRVA injury ranged from six to thirty months,
with most petitioners averaging approximately nine months of pain. Although some petitioners
asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who suffered
more significant levels of pain and SIRVAs of longer duration. Most of these petitioners
subjectively rated their pain within the upper half of a ten-point pain scale and sought treatment of
their SIRVAs more immediately, often within thirty days of vaccination. All petitioners with
significant pain also experienced moderate to severe limitations in ROM. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions – occasionally spanning several years,
and multiple cortisone injections, were required in these cases. In six cases, the petitioners
provided sufficient evidence of permanent injuries to warrant yearly compensation for future or
projected pain and suffering.
VIII. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Actual 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 his
injury. Therefore, I will address the remaining factors to be considered when determining an award
for pain and suffering: the severity and duration of Petitioner’s injury.
A review of his medical records reveals that from the date of vaccination on October 5,
2018, until his surgery on February 13, 2019, a period of approximately four months, Petitioner
suffered from a moderate to severe SIRVA. He reported his injury to his vaccine administrator
quickly, within two weeks of vaccination. He consistently reported severe pain with no indication
that the steroid pack and two steroid injections he received offered any relief. Despite Petitioner’s
inability to undergo an MRI, it was quickly determined that Petitioner needed surgery. His
arthroscopic surgery included nerve decompression and acromioplasty, and Petitioner reported
diminished symptoms in his post-surgical follow up.
Following his surgery, Petitioner underwent twenty-two sessions of PT over approximately
three months, wherein he continued to report moderate pain. At the time of discharge from PT in
May of 2019, Petitioner exhibited a 39% perceived disability and pain levels that ranged from 3/10
to 6/10 with overuse. A follow-up record from his July 1, 2019 orthopedic exam, approximately
eight and one-half months post vaccination, recorded that his full ROM and strength had returned.
Petitioner’s FCE administered in April of 2021, documented moderate loss of ROM and pain when
reaching overhead. All of Petitioner’s records consistently note that while his pain levels have
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decreased and ROM increased, he has not experienced full recovery.
There are no medical records that document Petitioner’s pain levels or ROM between July
of 2019 until April of 2021. Petitioner asserts that his 2021 FCE examination was more thorough
and therefore more accurate than the exams performed by his treaters in 2019. However, the
purpose of each treater examination is of some consequence. Petitioner’s PT discharge exam in
May of 2019, as well as his follow up orthopedic exam in July of 2019, were done for the purpose
of treatment and diagnosis. Indeed, the sole purpose of both was to evaluate Petitioner’s ability to
work and safely engage in activities of daily living (“ADLs”). In Program cases, contemporaneous
medical records and the opinions of treating physicians are favored. Capizzano v. Sec’y of Health
& Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006) (citing Althen v. Sec’y of Dep’t of Health &
Hum. Servs., 418 F.3d 1274, 1278–80 (Fed. Cir. 2005)). This is because “[m]edical 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). They are not, however, “binding on the special master or
court.” § 13(b)(1). Rather, when “evaluating the weight to be afforded to any such . . . [evidence],
the special master . . . shall consider the entire record . . . .” Id.
Petitioner’s records of his condition post surgery in 2019 consistently noted continued mild
levels of right shoulder pain exacerbated by overuse. The FCE completed in 2021 suggests a
worsening of Petitioner’s ROM and increased pain levels; however, this report was completed in
contemplation of litigation and several years post injury, treatment, and therapy discharge.
Therefore, it does not carry the premium afforded to Petitioner’s medical records. Petitioner’s filed
affidavits likewise do not provide information indicating a worsening of Petitioner’s condition
after his 2019 treatment and prior to his 2021 FCE. After consideration of the evidence, I do not
find there is preponderant evidence that Petitioner’s injury is worse than described in his 2019
medical records. Nonetheless, Petitioner has provided preponderant evidence that his injury is not
completely resolved and that some of his prior ADLs and hobbies are no longer available to him.
Petitioner’s claim for pain and suffering also contemplates damages for the neck condition
that is documented in Petitioner’s record. While it may be that Petitioner has presented evidence
that his neck injury could be a vaccine injury, the damages phase of litigation is not the appropriate
time to assert causation. Respondent was very clear in all of his filings, from his Rule 4(c) report
through his damages response, that his concession was limited to Petitioner’s SIRVA and related
sequelae. Petitioner did not file a claim for a neck, skin, or other injury that provided a but-for
causation theory, nor did Petitioner provide a logical sequence of cause and effect to show how
his Tdap vaccination caused said injury. Petitioner resolved his case short of litigation as a Table
SIRVA claim. He cannot now seek to add an injury that has not been litigated or conceded for
damages. See Danielson v Sec’y of Health & Hum. Servs., No. 18-1878V, 2020 WL 8271642, at
*4 (Fed. Cl. Spec. Mstr. Dec. 29, 2020) (rejecting the petitioner’s argument that she should receive
a higher damages award covering prior and continued pain in areas other than the left shoulder
where she received her vaccination and subsequently awarding a lower award limited to her
SIRVA). I therefore do not find it appropriate to consider Petitioner’s neck injury at this stage in
his claim.
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For analogy, Petitioner offers two cases, Hooper and Pruitt, wherein the petitioners
undergo substantially more intense treatment. By Petitioner’s own account, the Hooper petitioner’s
surgery was more extensive. He attended sixty-six physical therapy sessions (compared to
Petitioner’s twenty-two) and suffered a 50% disability (Petitioner suffered a 39% disability).
Hooper, 2019 WL 1561519, at *5. The Pruitt petitioner’s injury spanned over two years and
required two surgeries. Pruitt, 2021 WL 5292022, at *10. In the present case, Petitioner’s
significant injury resolved within one year of his vaccination and within four months following his
single surgery. Based on Petitioner’s symptomology, progression, and treatment, I do not find that
Petitioner’s case is analogous in severity to those he relied upon for support.
Likewise, Respondent’s reliance on Shelton is misplaced, given the delay in treatment and
the complete injury resolution compared to that of Petitioner. Respondent’s other cited cases are
more instructive; however, they do have some significant distinctions. It is notable that all of the
cases Respondent relies on to argue against a high award of pain and suffering have substantially
larger award amounts ($97,000.00, $105,000.00, and $118,000.00) than the $82,500.00 that
Respondent is proposing here. In Weed, the petitioner suffered a severe initial injury, but her
surgery was performed less than two months post vaccination. Weed, 2021 WL 1711800, at *5.
Ultimately, the petitioner had a “strong and relatively quick recovery,” including only nine PT
sessions, and her pain peaked at a 3/10. Id. Respondent’s third referenced case, Schmitt, is relevant
because of the petitioner’s “moderate to severe initial pain and limited [ROM], [immediate]
medical attention[,] and [prompt] surgery.” Schmitt, 2021 WL 4470101, at *8. In that case, the
petitioner was able to control his pain with over-the-counter medications, and after four PT
sessions, “he had significantly less pain and no documented limitations.” Id. at *6. Indeed, the
Chief Special Master noted that his “review did not locate any SIRVA injury case involving a
reasoned determination of damages which culminated in an award of less than $100,000.00 for
past pain and suffering.” Id. While Weed and Schmitt are certainly similar to Petitioner’s case with
respect to the initial severity and clinical progression, they do not share his longer course of PT or
permanent disability at discharge and are therefore distinguishable.
A review of prior reasoned SIRVA decisions also informs my analysis of Petitioner’s pain
and suffering claim. The Roberson case is analogous to Petitioner’s in that Mr. Roberson had
severe pain and sought treatment immediately. Roberson v. Sec’y of Health & Hum. Servs., No.
19-90V, 2020 WL 5512542, at *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2020). Mr. Roberson received two
steroid injections prior to surgery and completed twenty-one PT sessions post surgery with a good
prognosis and nearly full ROM. Roberson, 2020 WL 5512542, at *4. Like Petitioner, Mr.
Roberson’s significant pain was resolved within one year. Id. The Reynolds case is also instructive
because of Mr. Reynolds’ similar prognosis to that of Petitioner. Reynolds v. Sec’y of Health &
Hum. Servs., No. 19-1108V, 2021 WL 3913938 (Fed. Cl. Spec. Mstr. July 29, 2021). Six months
post surgery, Mr. Reynolds “had limitations with lifting his arm away from the body and
overhead.” Reynolds, 2021 WL 3913938, at *6. Like Petitioner, he “had a permanent shoulder
injury which could be aggravated by excessive activity[,] and [] no particular [further] treatment
was indicated.” Id. Lastly, there is Randazzo, in which the petitioner’s length of significant pain at
six months is closer to the eight and a half months in the present case. Randazzo v. Sec’y of Health
& Hum. Servs., No. 18-1513V, 2021 WL 829572 (Fed. Cl. Spec. Mstr. Feb. 1, 2021). In Randazzo,
the petitioner had a cortisone injection, surgery, and twenty-two PT sessions with a good
prognosis. Randazzo, 2021 WL 829572, at *3. All three of these cases share some similarities with
Petitioner’s case, although they also differ in some respects. The three petitioners were each
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awarded $125,000.00 in actual pain and suffering. I find that to be a reasonable award amount in
this case as well.
B. Future Pain and Suffering
Petitioner’s argument for future pain and suffering consists of a single statement with no
requested amount. He only noted that “[a]n award for future pain and suffering could be in order
as well, given the ongoing nature of his injuries.” Pet’r’s Br. at 14. Petitioner referenced two
prescription drugs that he uses to treat his continued SIRVA pain, but Petitioner has also relied on
these medications to treat chronic headaches prior to his vaccination. He has provided no evidence
that the dosage was increased or the instructions from his treater were expanded to also address
his shoulder pain. More so, Petitioner no longer receives treatment for SIRVA, and he was
discharged from PT. Petitioner’s damages brief lacks a specific request or any argument in support
of future pain and suffering, and, without more, I do not find that it is appropriate in this case.
C. Lost Wages Claim
Mr. Lee’s affidavit noted Petitioner began working for him as a site supervisor on April 1,
2018. Following Petitioner’s SIRVA in October of 2018, Mr. Lee made accommodations for
Petitioner that has allowed him to continue to work without interruption, as reflected in the lack of
a lost wages claim with respect to his employment by JL Builders. Petitioner and Mr. Lee
emphasized the projects Petitioner lost as an independent contractor, specifically, the four clients
that “had to be released to find someone else to do their work.” See Pet’r’s Ex. 24 at 6–7. To
illustrate his lost wages, Petitioner filed tax documents that require further discussion. Petitioner
filed two 1099 forms, documenting payments from his client, Centre Crossing, in 2017 of
$10,350.00, and in 2018 of $4,500.00. Pet’r’s Reply at 19 (Exhibit 3). The amount Petitioner was
paid in 2017 appears to be approximately twice what Petitioner received in 2018, the year he began
working for Mr. Lee. There is no evidence in the record that Petitioner worked and received
payment as a site supervisor in 2017. That he was not employed full-time for Mr. Lee and JL
Builders until April of 2018 would explain why he would have been able to work more hours for
Centre Crossing in 2017 as an independent contractor and collect a higher payment. Petitioner
asserted that he had to stop working as an independent contractor after his vaccination in October
of 2018, but there is insufficient evidence that Petitioner’s work in October, November, and
December of 2018 would have been substantial enough to amount to the difference between his
2017 payment and his 2018 payment from Centre Crossing.
Petitioner’s earning potential as an independent contractor during those months is better
illustrated by Petitioner’s First Data Reporting Services 1099 form from 2018. Id. at 17 (Exhibit
1). The payments received by Petitioner from First Data Reporting Services in 2018 are listed by
month on his 1099 form. Id. In February and March of 2018, prior to Petitioner’s employment with
JL Builders, Petitioner received payments of $29,900.00 and $14,100.00, respectively.22 Id.
Petitioner began with JL Builders on April 1, 2018, and received payments from First Data in April
and May of that year in the amount of $12,000,00 and $5,815.00, respectively. Id. Petitioner did
not receive his vaccination until October of 2018. However, his 1099 form lists no payments in
22 Petitioner did not receive a payment in January of 2018.
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June, July, or September of that year. See id. Petitioner received a small payment of $2,200.00 in
August of 2018. Id. Petitioner received no further payments for the duration of 2018. Id.
Petitioner’s vaccination cannot account for the steady decrease in payment amounts each
month and the cessation of payment during peak summer months pre vaccination. Given the
unpredictable nature of construction, it is conceivable that Petitioner was unable to obtain contracts
during these months. It cannot be ignored, however, that Petitioner’s start date with JL Builders in
April of 2018, prior to his vaccination, signals the logical beginning of decreased work as an
independent contractor. Petitioner did not explain or provide any evidence that the independent
contract work he did for Centre Crossing or Precision Drilling23 during 2018 was completed
simultaneously with his full-time employment by JL Builders. Petitioner did not provide the
contracts with any of these companies or any additional information that would support his claim
that he could have continued the same volume of business as an independent contractor, despite
the addition of his recent full-time employment as a site supervisor.
Petitioner asserted instead that employment documentation is irrelevant or not needed
because “[t]his information was provided to the expert accountant, and it is tendered that the expert
accountant’s report is the best evidence of lost wages.” Id. at 8. Petitioner further asserted that
documentation in support of his lost wages demand “was submitted to [Respondent’s counsel]
during an attempt to amicably resolve this case.” Id. Petitioner is correct that his submissions to
his expert and Respondent that were not filed in the case are irrelevant to my decision. I cannot
consider what is not before me. Furthermore, it is perplexing why Petitioner would intentionally
withhold presumably favorable evidence in his possession and simply pronounce that the expert’s
report is the best evidence. Experts are often an essential piece of a petitioner’s claim. However,
nothing requires the acceptance of an expert's conclusion “connected to existing data only by
the ipse dixit of the expert,” especially if “there is simply too great an analytical gap between the
data and the opinion proffered.” Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 743
(2009) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)); see also Isaac v. Sec'y of
Health & Hum. Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30,
2012), mot. for review den'd, 108 Fed. Cl. 743 (2013), aff'd, 540 F. App’x. 999 (Fed. Cir. 2013).
Petitioner’s expert does not address the discernible pattern of decreasing earnings prior to
Petitioner’s vaccination in his report, nor does Petitioner address it in his reply brief. This omission
is puzzling as it was expressly identified by Respondent in his response. Petitioner has not
presented preponderant evidence that he worked simultaneously as a full-time site supervisor and
a full-time independent contractor, and therefore would have been paid for working two full-time
jobs. Indeed, the evidence filed illustrates a decline in Petitioner’s consulting work that correlates
with his JL Builders employment, obtained pre vaccination. Therefore, I do not find that a lost
wages award is appropriate in this case.
IX. Conclusion
For all of the reasons discussed above and based on consideration of the record, I find that
$125,000.00 represents a fair and appropriate amount of compensation for Petitioner’s
23 Precision Drilling was a third company who hired Petitioner as a contractor in 2018 and issued a 1099 in
the amount of $5,000.00. Pet’r’s Br. at 18 (Exhibit 2).
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actual pain and suffering.24 I also find that Petitioner is entitled to $1,323.78 in actual
recoverable out-of-pocket expenses. Therefore, I award a lump sum payment of $126,323.78
in the form of a check payable to Petitioner. This amount represents compensation for all
damages that would be available under § 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this Decision.25
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
24 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)).
25 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.
18