VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00025
Package ID: USCOURTS-cofc-1_20-vv-00025
Petitioner: Lexi Kestner
Filed: 2020-01-08
Decided: 2023-03-10
Vaccine: influenza
Vaccination date: 2017-10-04
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 115502

AI-assisted case summary:
Lexi Kestner, a 26-year-old nurse, filed a petition for compensation under the National Vaccine Injury Compensation Program on January 8, 2020. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on October 4, 2017. The respondent filed a Rule 4(c) report on June 4, 2021, conceding that Ms. Kestner was entitled to compensation because her injury met the criteria set forth in the Vaccine Injury Table and its Qualifications and Aids to Interpretation. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 4, 2021, finding Ms. Kestner entitled to compensation. The parties were unable to agree on damages, leading to a decision awarding damages issued by Chief Special Master Corcoran on March 10, 2023. Ms. Kestner received an influenza vaccine in her left shoulder on October 4, 2017. Sixteen days later, on October 20, 2017, she reported pain with movement that interfered with daily activities and sleep. She was diagnosed with bursitis and received a steroid injection, which provided temporary relief. Her pain returned, and she underwent physical therapy, which aggravated her symptoms. She was prescribed medication and ordered to remain out of work for periods. An MRI on December 8, 2017, revealed a small labral tear and a cyst, with no profound findings of subacromial bursitis or rotator cuff pathology. Ms. Kestner underwent a left shoulder arthroscopy with subacromial bursectomy on February 1, 2018. Following surgery, she attended 29 physical therapy sessions and reported significant improvement. She was discharged from physical therapy approximately eight months after her vaccination, reporting 95% improvement. In September 2018, she reported intermittent shoulder pain, which worsened, and was prescribed a Medrol Dosepak. There are no further treatment records after September 2018, though Ms. Kestner stated she continued to experience tightness and pain. Petitioner sought $135,000.00 for pain and suffering, arguing her injury was severe, required extensive treatment including surgery, and impacted her life, including her wedding planning. Respondent proposed an award of $87,500.00, contending her injury was modest with largely resolved symptoms after eight months. Chief Special Master Corcoran reviewed prior SIRVA cases and arguments from both parties. He found Ms. Kestner's injury to be consistent with a moderate SIRVA requiring surgery. He noted her prompt treatment, pain levels, and the necessity of surgery. While distinguishing her case from the cited Nute case, which awarded $125,000, he found her requested award too high. He also found Respondent's proposed award too low, particularly given the surgery. Considering the Wylie case, which awarded $108,000 for a similar treatment course, and factoring in Ms. Kestner's additional post-surgery physical therapy, return with ongoing symptoms, and impact on her professional and personal life, Chief Special Master Corcoran awarded $115,000.00 for pain and suffering. The parties agreed to $502.58 for unreimbursed mileage expenses. The total award was $115,502.58, paid as a lump sum check to Lexi Kestner. Petitioner's counsel was Anne Carrion Toale of Maglio Christopher & Toale, PA. Respondent's counsel was Alexa Roggenkamp of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran issued the decision.

Theory of causation field:
Petitioner Lexi Kestner, age 26, received an influenza vaccine on October 4, 2017. She alleged a shoulder injury related to vaccine administration (SIRVA) occurred as a result of this vaccination. Respondent conceded entitlement, finding the injury met the criteria for a Table injury. The Special Master found the injury to be a moderate SIRVA requiring surgery. The decision does not detail the specific mechanism of injury or name medical experts. The award of $115,502.58 was for pain and suffering ($115,000.00) and unreimbursed mileage expenses ($502.58). Chief Special Master Brian H. Corcoran issued the decision on March 10, 2023. Petitioner's counsel was Anne Carrion Toale, and Respondent's counsel was Alexa Roggenkamp.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00025-0
Date issued/filed: 2021-07-06
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/04/2021) regarding 38 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00025-UNJ Document 40 Filed 07/06/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0025V
UNPUBLISHED
LEXI KESTNER, Chief Special Master Corcoran
Petitioner, Filed: June 4, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Ida Nassar, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 8, 2020, Lexi Kestner 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine that was administered
to her on October 4, 2017. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On June 4, 2021, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Specifically, Respondent states that “[P]etitioner has satisfied the criteria set forth in the
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:20-vv-00025-UNJ Document 40 Filed 07/06/21 Page 2 of 2
Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”).
Id. at 7.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00025-1
Date issued/filed: 2023-03-10
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 02/03/2023) regarding 64 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0025V
UNPUBLISHED
LEXI KESTNER, Chief Special Master Corcoran
Petitioner, Filed: February 3, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza Vaccine;
Shoulder Injury Related to
Respondent. Vaccine Injury (SIRVA)
Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 8, 2020, Lexi Kestner 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 she suffered from a shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received
on October 4, 2017. Petition at ¶24. The case was assigned to the Special Processing
Unit of the Office of Special Masters (the “SPU”). Although Ms. Kestner was found entitled
to compensation, the parties were unable to agree to damages. ECF No. 28.
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to compensation in the amount of $115,502.58, representing
$115,000.00 in pain and suffering, plus $502.58 in unreimbursed mileage expenses.
1 Although this Decision has been deemed unpublished, it will 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), 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 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 2 of 11
I. Relevant Procedural History
Approximately 17 months after this case was initiated, Respondent filed his Rule
4(c) Report on June 4, 2021, conceding that Petitioner was entitled to compensation. ECF
No. 37. A ruling on entitlement was subsequently issued on the same day. ECF No. 38.
On April 22, 2022, Petitioner filed a status report indicating that the parties had reached
an impasse. ECF No. 58. Petitioner filed a Motion for Findings of Fact and Conclusions
of Law Regarding Damages (“Mot.”) on June 24, 2022. ECF No. 59. Responded filed a
response (“Resp.”) on August 24, 2022 (ECF No. 60) and Petitioner filed a reply (“Repl.”)
on September 12, 2022. (ECF No. 61). I subsequently proposed that the parties be given
the opportunity to argue their positions at a motions hearing, at which time I would decide
the disputed issues. ECF. No. 362. That hearing was held on January 27, 2023,3 and the
case is now ripe for a determination.
II. Relevant Medical History
Ms. Kestner was a 26-year-old nurse when she received an influenza vaccine in
her left shoulder on October 4, 2017. Ex 1 at 2. Petitioner stated that the injection hurt
when it was administered, and that she “noticed that the needle was injected higher on
her shoulder than when she’d received it in the past.” Ex. 10 at ¶5-6.
On October 20, 2017, 16 days after her vaccination, Petitioner was evaluated by
an occupational physician at the hospital where she worked. Ex. 6 at 4. She reported pain
with movement which caused difficulty with daily activities and interfered with sleep. Id.
Petitioner was instructed to return to work with restrictions. Id. Three days later, Ms.
Kestner was evaluated by orthopedist, Dr. Nikhil Verma, who diagnosed bursitis and
administered a steroid injection. Ex. 3 at 91.
Although Petitioner initially reported that her pain had fully resolved after the
steroid injection, that relief lasted only 2-3 weeks. Ex. 3, at 88; Ex. 6 at 6. At a follow-up
appointment, she reported pain between 3/10 and 6/10, but stated that she could move
her arm “fairly well without pain.” Ex. 6 at 6. Petitioner was allowed to return to full duty at
work. Id. Dr. Verma prescribed a Medrol Dosepak and referred Petitioner to physical
therapy. Ex. 3 at 88.
Petitioner began physical therapy on November 15, 2017. Ex. 2 at 111. She
reported pain between 2/10 and 6/10 and difficulty with self-care, dressing, reaching into
3 At the end of the hearing held on January 27, 2023, I issued an oral ruling from the bench on damages in
this case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the
case’s docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2

Case 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 3 of 11
cabinets and cleaning her home. Id. She returned to Dr. Verma on December 7, 2017
with complaints that her work duties were exacerbating her pain. Ex. 3 at 87. Dr. Verma
ordered an MRI4 and ordered Petitioner to remain out of work for one week. Id.
On December 11, 2017, Dr. Verma ordered Petitioner to remain out of work for an
additional two weeks and prescribed a course of daily anti-inflammatories. Ex. 3 at 81.
Nine days later, Petitioner returned reporting that physical therapy, which she had done
for seven sessions, was aggravating her symptoms. Id. at 77. Dr. Verma ordered
Petitioner to refrain from working for three additional weeks. Id. Petitioner returned to Dr.
Verma in January 2018 reporting no improvement in symptoms. Ex. 3 at 73. Dr. Verma
recommended a left shoulder arthroscopy with subacromial bursectomy, which was
performed on February 1, 2018. Id. at 31-32.
At a follow-up appointment two weeks after her surgery, Petitioner reported doing
“significantly better.” Ex. 3 at 96. She was not taking medications for pain. Id. Dr. Verma
referred her back to physical therapy and released her to work on limited duty. Id. Two
months later, Petitioner reported that her pain was improving. Ex. 3 at 66. Dr. Verma
advised that she continue physical therapy and released her to return to full duty at work.
Id.
On June 1, 2018 (now approximately eight months after her vaccination), Petitioner
was discharged from physical therapy after 29 sessions. Ex. 2 at 3. She reported no
difficulty with her work duties and 95% improvement in her symptoms. Id. Three months
later, in September 2018, Petitioner retuned for treatment reporting intermittent shoulder
pain since her surgery, with acute pain resuming 2-3 days prior. Ex. 3 at 58. She reported
pain between 2/10 and 4/10 that worsened with driving and certain movements and
interfered with her sleep. Id. She was prescribed a Medrol Dosepak. Id.
Although there are no treatment records relating to Petitioner’s shoulder after
September 2018 (11 months after her vaccination), Petitioner states that she continues
to have tightness and pain in her shoulder, especially at the end range of motion. Ex. 10
at ¶25. Petitioner also described the impact of her injury on her wedding on March 30,
2019, stating that it was hard not to stress about weight gain pre-wedding because she
could not exercise with her shoulder injury and that her surgery scars were visible in her
dress. Id. at ¶28.
4 Petitioner’s December 8, 2017 MRI revealed “a small labral tear with a 6mm anterior paralabral cyst” and
“no significant joint bursal effusion.” Ex. 3 at 102. Dr. Verma noted that the MRI showed “no profound
findings of subacromial bursitis or rotator cuff pathology.” Id. at 81.
3

Case 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 4 of 11
III. The Parties’ Arguments
a. Petitioner
In addition to a more nominal past unreimbursed expense (discussed briefly
below), Ms. Kestner seeks $135,000.00 as compensation for her actual pain and
suffering. Br. at 14. She argues that her SIRVA injury forced her to seek treatment quickly
after her vaccination, and was severe enough that she was unable to work for a long
period of time. Id. at 15. She highlights her significant pain (rated between 2/10 and 6/10,
with at least one report of 10/10) and that she required robust treatment, including a
cortisone injection, 35 physical therapy treatments (3 pre- and 29 post-surgery), and a
surgical procedure. Id. Further, even after her surgery she required additional treatment,
and today continues to suffer symptoms, including difficulty sleeping due to pain. Id.
During the hearing and in her brief, Petitioner discussed prior SIRVA cases that
involved injured claimants with similar fact patterns and argued that an award of
$135,000.00 in pain and suffering was reasonable and appropriate given that her
circumstances were comparable. See Br. at 14-15.
b. Respondent
Respondent maintains that a pain and suffering award of $87,500.00 is
appropriate. Resp. at 12. Respondent contends that Petitioner’s injury was modest – as
her initial presentation was not severe and she had complete resolution of pain after a
cortisone injection. Id. at 8. He highlights that Petitioner experienced only minor deficits
in range of motion throughout her injury and that her symptoms were largely resolved
after eight months. Id. at 8-9. He also distinguished Petitioner’s cited prior SIRVA case,
arguing that that petitioner had a more severe injury and during the hearing and in his
brief, discussed other prior SIRVA cases as the basis for his proposed pain and suffering
award. Resp. at 10-12. And he does not concede that a case involving surgery should
inevitably result in a pain and suffering award in excess of $100,000.00.
IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4).
Additionally, a petitioner may recover “actual unreimbursable expenses incurred
before the date of judgment awarding such expenses which (i) resulted from the vaccine-
related injury for which the petitioner seeks compensation, (ii) were incurred by or on
4

Case 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 5 of 11
behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other
remedial care, rehabilitation . . . determined to be reasonably necessary.” Section
15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996
WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (citing McAllister v. Sec’y of Health
& Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26,
1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
I may 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.”). And, of course, I may rely on my own experience (along with that of my
predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated that the special masters would use their accumulated expertise in the field
of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. See Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). The Graves decision 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.” Id. at 589-90. Instead,
Graves assessed pain and suffering by looking to the record evidence, prior pain and
5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
5

Case 1:20-vv-00025-UNJ Document 67 Filed 03/10/23 Page 6 of 11
suffering awards within the Vaccine Program, and a survey of similar injury claims outside
of the Vaccine Program. Id. at 593-95. Under this alternative approach, the statutory cap
merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all
possible awards as falling within a spectrum that ends at the cap. While Graves does not
control the outcome of this case, it provides logical guidance that bears on how pain and
suffering is calculated.
V. Prior SIRVA Compensation Within SPU6
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.7
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
6 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
7 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
6

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The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated8
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.9
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
8 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
9 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).
7

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limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
Although some petitioners asserted residual pain, the prognosis in these cases was
positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
VI. Appropriate Compensation in this SIRVA Case
a. Awareness of Suffering
Awareness of suffering is not typically a disputed issue in cases involving SIRVA
– and it does not appear to be here either. Neither party has argued that Ms. Kestner
lacked awareness of her injury, thus, I find that Petitioner had full awareness of her
suffering.
b. Severity and Duration of Pain and Suffering.
After reviewing the record in this case and considering the parties’ arguments
during the hearing, I find that Petitioner’s injury was consistent with a moderate SIRVA
requiring surgery. Petitioner sought treatment quickly after her vaccination, and
consistently reported pain levels 2/10 and 6/10 prior to her surgery. Ex. 2, at 11; Ex. 6 at
4, 6. She received a cortisone injection at her first orthopedist appointment, was
prescribed medications, and completed seven physical therapy sessions prior to her
surgery, stopping because the treatments were aggravating her pain. Ex. 2 at 111; Ex. 3
at 77, 87-91. Petitioner underwent surgery four months after her vaccination, after which
her recovery was good. Ex. 3 at 31-32. She attended 29 sessions of physical therapy and
8

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two follow up appointments with her orthopedist. Ex. 2 at 3; Ex. 3 at 66; 96. She reported
95% improvement upon her discharge from physical therapy, four months after surgery.
Ex. 2 at 3. Her total course of treatment spanned eight months. Ms. Kestner returned to
her doctor three months after her discharge from physical therapy complaining of
ongoing, intermittent shoulder pain, but did not have significant additional treatment and
did not seek care again. Ex. 3 at 58.
In her argument, Petitioner cited a case that is in many regards factually similar:
Nute v. Sec’y of Health & Human Servs., No. 18-0140V, 2019 WL 6125008, *1 (Fed. Cl.
Spec. Mstr. Sept. 6, 2019). The Nute petitioner was a nurse, like Ms. Kestner, and was
awarded $125,000 for her SIRVA injury. Nute, 2019 WL 6125008 at *1. Petitioner argues
that her injury was more serious than the Nute petitioner’s, however, because she sought
treatment sooner, missed more days of work due to her injury, had more physical therapy,
required follow-up care for chronic symptoms, and suffered a significant life impact of her
in injury with respect to her wedding planning. Br. at 15-16. But despite its many
similarities, Respondent made persuasive arguments for distinctions between Nute and
the present case. The Nute petitioner received more cortisone injections, reported higher
levels of pain than did Ms. Kestner prior to surgery, and experienced much more reduced
range of motion. Nute, 2019 WL 6125008 at *3. And although the treatment course in
Nute was comparable, Ms. Nute’s surgery was more extensive, and her post-surgery PT
course was more difficult and painful than was Ms. Kestner’s. Id. at *4. For these reasons,
Petitioner’s requested award is just too high.
Respondent cited three comparable prior SIRVA cases in support of his proposed
award of $87,500 - two of which did not involve surgery. See Dagen v. Sec’y of Health &
Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2019);
Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl.
Spec. Mstr. May 23, 2018). Although Respondent’s proposed award was higher than the
awards in those cases (in an attempt to account for Petitioner’s surgery), his proposed
number still remains somewhat too low. A number of factors (including the speed of
treatment, the number of physical therapy sessions, the number of steroid injections, and
the impact of an injury on the petitioner’s employment and activities) are routinely
considered in the determination of the severity of a SIRVA injury, but surgery is
consistently, and reasonably, deemed a particularly compelling justification for an award
of pain and suffering in excess of $100,000.00, absent other considerations.
Respondent also cited Shelton v. Sec’y of Health & Human Servs., No. 19-0279V,
2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021) – the rare SIRVA injury case
involving surgery but resulting in a sub-$100,000.00 pain and suffering award (there,
$97,500). Respondent argues that Ms. Kestner’s course of treatment, including her
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surgery, were even less severe than the petitioner in Shelton and therefore justifies a
lower award. Resp. at 11. However, the primary reason for the lower award in Shelton
was that petitioner’s eight-months substantial delay in seeking treatment post-
vaccination. Shelton, 2021 WL 2550093 at *7. This fact was balanced against the fact
that the Shelton petitioner ultimately underwent a fairly rigorous treatment course,
including surgery. This case does not present a similar need to balance some factor
undermining severity of injury.
Although the parties overall cited reasonable comparable cases, I deem the
present action most factually similar to a different recent case: Wylie v. Sec’y of Health &
Human Servs., No. 20-1314V, 2022 WL 17968929 (Fed. Cl. Spec. Mstr. Dec. 7, 2022).
The Wylie petitioner sought treatment within a month of vaccination, reported fairly severe
pain, and had 14 physical therapy treatments prior to surgery. Wylie, 2022 WL 17968929,
at *5. She had a successful surgery eight months after her vaccination and made an
excellent recovery after 18 post-surgery physical therapy treatments, reporting 95%
improvement upon discharge. Id. at 6. Her total treatment course was just over ten
months, and she was awarded $108,000 in pain and suffering. Id. at *7. The degree of
factual similarity between the treatment course of the Wylie petitioner and Ms. Kestner’s
course suggests an award of pain and suffering in the same range. However, my award
will be somewhat higher, because Ms. Kestner required more post-surgery physical
therapy, returned with ongoing symptoms, and persuasively described the impact of her
injury on her professional and personal life. And I give some weight to the commonalities
between this case and those found in Nute (even though the latter award exceeds what
is appropriate here).
Accordingly, and considering the arguments presented by both parties at the
hearing, a review of the cited cases, and the record as a whole, I find that $115,000.00 in
compensation for past pain and suffering is reasonable and appropriate in this case.
c. Award for Past Unreimbursed Expenses
The parties have agreed that Petitioner should be awarded $502.58 in past
unreimbursable mileage expenses. Petitioner is awarded this sum without adjustment.
CONCLUSION
Based on the foregoing, the I award Petitioner a lump sum payment of
$115,502.58, (representing $115,000.00 for Petitioner’s actual pain and suffering
and $502.58 for unreimbursable mileage expenses) in the form of a check payable
to Petitioner, Lexi Kestner. This amount represents compensation for all damages that
would be available under Section 15(a) of the Vaccine Act. Id.
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The Clerk of the Court is directed to enter judgment in accordance with this
Decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 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.
11