VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00239
Package ID: USCOURTS-cofc-1_20-vv-00239
Petitioner: Michelle Horky
Filed: 2020-03-03
Decided: 2023-01-06
Vaccine: influenza
Vaccination date: 2018-12-05
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 101287

AI-assisted case summary:
Michelle Horky filed a petition for compensation under the National Vaccine Injury Compensation Program on March 3, 2020, alleging a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on December 5, 2018. Ms. Horky, who was 57 years old at the time of vaccination, reported experiencing pain in her left shoulder that radiated to her elbow, beginning within 13 days of receiving the vaccine. Her medical history included diagnoses of tendinitis and impingement syndrome, multiple cortisone injections, and physical therapy. Approximately six months after vaccination, she underwent arthroscopic surgery on her left shoulder. Her pain improved post-surgery, and by nine months after vaccination, she reported no pain at rest and full range of motion, with no further treatment sought for her shoulder after that point. The respondent conceded that Ms. Horky was entitled to compensation under the Vaccine Injury Table for SIRVA, stating she met the criteria for SIRVA, including having no prior history of shoulder pain, experiencing pain within 48 hours of an intramuscular vaccination, pain limited to the vaccinated shoulder, and no other identified condition explaining her symptoms. The parties were unable to agree on the amount of damages, leading to a decision by Chief Special Master Brian H. Corcoran. After reviewing the medical records, affidavits, and arguments from both parties, and considering prior SIRVA cases, Chief Special Master Corcoran awarded Ms. Horky $101,287.29. This award comprised $100,000.00 for pain and suffering and $1,287.29 for unreimbursable medical expenses. Petitioner was represented by Leigh Finfer of Muller Brazil, LLP, and Respondent was represented by Ronalda Elnetta Kosh of the U.S. Department of Justice.

Theory of causation field:
Petitioner Michelle Horky, age 57, received an influenza vaccine on December 5, 2018. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of this vaccination. The respondent conceded entitlement under the Vaccine Injury Table, finding that Petitioner met the criteria for SIRVA: no prior shoulder pain, onset of pain within 48 hours of vaccination, pain localized to the vaccinated shoulder, and no other identified cause. Petitioner's medical records indicated pain starting within 13 days of vaccination, progressing to diagnoses of tendinitis and impingement syndrome, requiring multiple cortisone injections, physical therapy, and ultimately arthroscopic surgery on her left shoulder approximately six months post-vaccination. By nine months post-vaccination, her pain had resolved, and she had full range of motion. The parties could not agree on damages. Chief Special Master Brian H. Corcoran awarded Petitioner $101,287.29, consisting of $100,000.00 for pain and suffering and $1,287.29 for unreimbursable medical expenses. Petitioner was represented by Leigh Finfer (Muller Brazil, LLP) and Respondent by Ronalda Elnetta Kosh (U.S. Department of Justice).

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-00239-0
Date issued/filed: 2021-10-20
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/16/2021) regarding 44 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00239-UNJ Document 47 Filed 10/20/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0239V
UNPUBLISHED
MICHELLE HORKY, Chief Special Master Corcoran
Petitioner, Filed: September 16, 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)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On March 3, 2020, Michelle Horky 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”) vaccination she received on
December 5, 2018. Petition at ¶1. Petitioner further alleges that her shoulder injury lasted
more than six months and that she had not received any compensation for her injuries.
Petition at ¶4. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On September 14, 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)
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00239-UNJ Document 47 Filed 10/20/21 Page 2 of 2
Report at 1. Specifically, Respondent’s position is that “[P]etitioner has satisfied the
criteria for SIRVA set forth in the Vaccine Injury Table and the Qualifications and Aids to
Interpretation, which afford petitioner the presumption of causation because petitioner
had no history of pain, inflammation, or dysfunction in her left shoulder; her pain occurred
within 48 hours of receipt of an intramuscular vaccination; her pain and reduced range of
motion were limited to the shoulder in which the vaccine was administered; and no other
condition or abnormality was identified to explain her symptoms. Id. at 4. Respondent
further agrees that the scope of damages to be awarded is limited to Petitioner’s SIRVA
and its related sequelae only. Id.
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-00239-1
Date issued/filed: 2023-01-06
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 12/07/2022) regarding 55 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00239-UNJ Do cCuOmRReEnCt T5E9D Filed 01/06/23 Page 1 of 11
In the United States Court of Federal
Claims
OFFICE OF SPECIAL MASTERS
No. 20-0239V
UNPUBLISHED
MICHELLE HORKY, Chief Special Master Corcoran
Petitioner, Filed: December 7, 2022
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)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 3, 2020, Michelle Horky 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 December 5, 2018. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters (the “SPU”). Although Ms. Horky has been found
entitled to compensation, the parties were unable to agree to damages.
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to compensation in the amount of $101,287.29, representing
$100,000.00 for actual pain and suffering, plus $1,287.29 in unreimbursable 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-00239-UNJ Document 59 Filed 01/06/23 Page 2 of 11
I. Relevant Procedural History
Approximately 19 months after this case was initiated, Respondent filed his Rule
4(c) Report on September 14, 2021, conceding that Petitioner was entitled to
compensation. ECF No. 42. A ruling on entitlement was subsequently issued on
September 16, 2021. ECF No. 44. On March 11, 2022, Petitioner filed a status report
indicating that the parties had reached an impasse. ECF No. 50. The parties therefore
filed memoranda setting forth their respective positions on pain and suffering - the only
disputed damages element. ECF Nos. 51 (“Br.”) and 31 (“Opp.”). I proposed that the
parties be given the opportunity to argue their positions at a “Motions Day” hearing, at
which time I would decide the disputed issues. ECF. No. 53. That hearing was held on
December 2, 2022,3 and the case is now ripe for decision.
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) Report.
In short, Ms. Horky was 57 years old when she received an influenza vaccine in
her left shoulder on December 5, 2018 in Quinton, VA. Ex. 1 at 1. On December 7 and
December 12, 2018, she had medical appointments with her primary care physician
(“PCP”). Ex. 2 at 20-28. Although the records of those appointments do not contain any
mention of shoulder pain, Petitioner explained that she did not mention her pain because
she believed, at that time, that it was normal and would resolve. Ex. 4 at ¶5.
On December 18, 2018 (13 days after her vaccination), Ms. Horky returned to her
PCP complaining of “constant aching pain in the left upper arm that radiated to the elbow.”
Ex. 2 at 15. She was prescribed a course of prednisone. Id. On January 2, 2019, Petitioner
presented to an orthopedist for evaluation. Ex. 3 at 11-12. She rated her pain at 5/10 and
was diagnosed with tendinitis. Id. Petitioner received her first cortisone injection for pain.
Id.
From January 15, 2019 through February 5, 2019, Petitioner had three sessions
of physical therapy. Ex. 3 at 13-22. At her initial evaluation, Petitioner described her pain
as “achy at rest; sharp with movement” ranging from 3/10 to 10/10. Id. at 13. At her second
and third visits, she reported increasing aching at night. Id. at 17, 20.
3 At the end of the hearing held on December 3, 2022, 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-00239-UNJ Document 59 Filed 01/06/23 Page 3 of 11
Petitioner returned to her orthopedist on February 14, 2019 reporting continuing
“considerable” pain (5/10) and that PT had made her shoulder worse. Ex. 3 at 23. Her
orthopedist suspected a rotator cuff tear and thought additional PT would not be
beneficial. Id. An MRI performed on February 19, 2019, revealed bursal sided partial
thickness tearing of the anterior and mid supraspinatus tendon and small amounts of fluid
in the subacromial subdeltoid bursa and glenohumeral joint. Ex. 3 at 45-46.
On March 1, 2019, Petitioner followed up with her orthopedist, still complaining of
pain of 4/10. Ex. 3 at 25. She was diagnosed with impingement syndrome of her left
shoulder and advised to consider surgery, but opted instead to try a second cortisone
injection. Id. She returned again on May 14, 2019, reporting that the injection provided
relief for approximately six weeks, but that her pain had returned and was 4/10. Ex. 3 at
27. She received a third cortisone injection and was again advised to consider surgery.
Id.
On June 20, 2019, Petitioner underwent an arthroscopic subacromial
decompression of her left shoulder with debridement of her rotator cuff tear. Ex. 3 at 29.
She had a post-surgery follow-up on June 28, 2019, where she reported improving pain,
but continued trouble sleeping. Id. at 30-31. On July 11, 2019, Petitioner returned to her
orthopedist reporting ongoing pain in her left shoulder and new similar pain in her right
shoulder. Ex. 3 at 32-33. She received cortisone injections to both shoulders and was
diagnosed with bilateral shoulder tendinitis with right shoulder impingement. Id.
From July 17 - August 2, 2019, Petitioner attended three sessions of physical
therapy for her bilateral shoulder pain. Ex. 3 at 34-41. She reported pain between 5/10
(current) and 10/10 (worst) at her initial evaluation. Id. at 34. By her final session, she
reported that she no longer felt constant pain, although she continued to have difficulty
with washing her back, twisting her arm behind her, and with some work-related tasks.
Id. at 39.
On September 4, 2019, Petitioner had a second MRI of her left shoulder which
showed mild tendinopathy of the supraspinatus and infraspinatus with a small, shallow
partial-thickness interstitial tear of the mid supraspinatus. Ex. 3 at 46-47. She returned for
her final visit to her orthopedist on September 13, 2019 reporting improved left shoulder
pain and resolved right shoulder pain. Ex. 3 at 42-43. She had full range of motion and
good strength in her left arm and was not taking any medications for pain. Id.
Although there are no treatment records filed after September 13, 2019
(approximately nine months from the date of vaccination), Petitioner states that she
continued to have difficulties with everyday activities, such as buckling her seatbelt,
vacuuming, lifting dishes and sleeping. Ex. 4 at ¶11. She also explained how her injury
3

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 4 of 11
affected her ability to do her job as a certified nursing assistant, including forcing her to
rely on help from co-workers to lift patients. Id. at ¶9.
III. The Parties’ Arguments
A. Petitioner
Ms. Horky seeks $131,287.29, consisting of $130,000.00 as compensation for her
pain and suffering, plus $1,287.29 for past unreimbursable expenses. Br. at 1. The parties
agree on the amount requested for out-of-pocket expenses. Opp. at 1.
Petitioner argues that her SIRVA injury was severe and caused her significant pain
both prior to and after her surgery. Petitioner’s reports of pain fluctuated between 5/10
and 10/10 and caused compensatory pain in her non-injured shoulder, which required a
cortisone injection and physical therapy to treat. Petitioner argued at the hearing that she
continues to experience disruptions in her life due to her injury, especially at work which
requires lifting, and in playing with and caring for her grandchildren.
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
$130,000.00 in pain and suffering was reasonable and appropriate given that her
circumstances were comparable. Br. at 4-6.
B. Respondent
Respondent maintains that a pain and suffering award of $87,500.00 is
appropriate. Opp. at 1. Respondent contends that Petitioner’s injury was relatively minor,
despite the fact that she underwent surgery. Id. at 6. Respondent highlights the fact that
Petitioner had two medical appointments soon after her vaccination at which she did not
mention her shoulder pain as evidence that her pain was not severe in the days after her
vaccination. Id. at 6-7. Respondent also notes that Petitioner consistently reported
moderate levels of pain and recovered significantly after her treatment. Id. at 7.
Respondent distinguishes Petitioner’s cited prior SIRVA cases, arguing that all
three cases involved petitioners who consistently had more severe pain and required
more aggressive treatment. Opp. at 10-11. During the hearing and in his brief,
Respondent discussed three prior SIRVA cases as the basis for his proposed pain and
suffering award. Opp. at 8-10.
4

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 5 of 11
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
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.4 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
5

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 6 of 11
contemplated that the special masters would use their accumulated expertise in the field
of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). Judge Merow maintained that do so resulted in “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared
to the most extreme cases and reduced accordingly.” Id. at 589-90. 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 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.
V. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
6

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 7 of 11
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 8 of 11
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.8
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
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 herein. Neither party has argued that Ms. Horky lacked
awareness of her injury, thus, I find that Petitioner had full awareness of her suffering.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
8

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 9 of 11
B. Severity and Duration of Pain and Suffering
Petitioner’s medical records and affidavit describe a moderate SIRVA injury.
Petitioner sought treatment quickly after her vaccination (13 days) and consistently
reported pain levels between 4/10 and 6/10 prior to her surgery. Ex. 3 at 11, 13, 23, 25,
27. She was prescribed one medication, had three physical therapy treatments, and three
cortisone injections prior to her surgery. Ex. 3 at 11, 15, 13-22, 25, 27.
Petitioner underwent successful surgery about six months after her vaccination.
Ex. 3 at 29. After her surgery, Petitioner’s recovery was excellent. She had three follow-
up appointments with her orthopedist, three physical therapy treatments, and one
cortisone injection. Ex. 3 at 30, 32, 34-41, 42. At her final appointment, approximately
nine months after her vaccination, she reported that she had no pain at rest and was not
taking any medication. Id. at 42. On exam, she had full range of motion and good strength.
Id. Petitioner did not seek any treatment for her SIRVA after those nine months.
After reviewing the totality of the record in this case and considering the parties’
arguments offered during the hearing, I find that the overall injury, while somewhat
moderate, was serious enough to require surgical intervention, and as such justifies an
award of at least $100,000. While surgery is one of many factors considered when
determining pain and suffering, I have now noted several times that it is a factor that
deserves special weight. As the average petitioner will not undergo surgery without
substantial consideration, the fact that a petitioner treated a SIRVA injury with surgery is
indicative of significant pain and suffering.
Both parties provided reasonable comparable prior SIRVA cases to support their
proposed award. Petitioner cited three surgery cases in which claimants were awarded
between $125,000 and $127,500 in pain and suffering, but argues that Ms. Horky’s injury
was “moderately more severe” than in those cases. Br. at 6. However, these cases involve
petitioners who consistently reported severe pain, had significantly more physical therapy
treatment, both before and after surgery, and required more treatment overall. See
Randazzo v. Sec’y of Health & Human Servs., No. 18-1513V, 2021 WL 829572 (Fed. Cl.
Spec. Mstr. February 1, 2021); Rafferty v. Sec’y of Health & Human Servs., No. 27-1906V,
2020 WL 3495956 (Fed. Cl. Spec. Mstr. May 21, 2020); Nute v. Sec’y of Health & Human
Servs., No. 18-0140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. September 6, 2019).
Respondent also cited three cases, although two did not involve surgery and are
therefore less helpful. The third case, by contrast, involved a petitioner who treated her
SIRVA injury with surgery, but was awarded $97,500 in pain and suffering. Shelton v.
Sec’y of Health & Human Servs., No. 19-0279V, 2021 WL 250093, *8-9 (Fed. Cl. Spec.
9

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 10 of 11
Mstr. May 21, 2021). The Shelton petitioner also had three cortisone injections and 26
physical therapy treatments over a two-year period. Id. However, there is a special factor
specific to Shelton not relevant to this case. There, the petitioner had a significant delay
in starting treatment (approximately five months), suggesting that she was able to tolerate
her pain for a significant period of time prior to treating. Id. at *7. Because of that fact, the
pain and suffering award in Shelton was lower than it would have been absent the delay.
There is no such delay in seeking initial treatment here (Ms. Horky sought treatment within
two weeks of her vaccination), and Respondent has not provided evidence of the type of
unique circumstances that would support a reduction comparable to Shelton.
In addition to the parties’ proposed comparable cases, I deem the present action
to be factually similar to another recent case: Hunt v. Sec’y of Health & Human Servs.,
No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022). In Hunt, the
petitioner obtained medical treatment for other matters a few days after her vaccination,
but did not mention any shoulder pain. Id. at *6. She then sought treatment specific to the
SIRVA approximately three weeks after her vaccination, received four cortisone injections
(two before and two after surgery), and had physical therapy both before and after
surgery. Id. at *8-9. She had a successful surgery about six months after vaccination, with
a good post-surgical recovery. Id. at *9. The Hunt petitioner was awarded $95,000 in pain
and suffering. Id. at *10.
The degree of factual similarity between the treatment course of the Hunt petitioner
and Ms. Horky’s experience suggest an award of pain and suffering in the same range.
However, my award will be somewhat higher, because the Hunt petitioner enjoyed
significant periods of little-to-no pain after her cortisone injections during her 15 months
of treatment, while Ms. Horky consistently reported persistent pain, while experiencing
only some improvement from her injections. See Hunt, 2022 WL 2826662 at *9; Ex. 3 at
23 (some relief, but still considerable pain”); 25 (second injection given); 27 (third injection
given only two months later); 29 (surgery performed only one month after injection).
Under such circumstances, and considering the arguments presented by both
parties at the hearing, a review of the cited cases, I find that $100,000.00 in compensation
for past pain and suffering is reasonable and appropriate in this case.
C. Award for Past Unreimbursed Expenses
Petitioner requests $1,287.29 in past unreimburs able expenses. Br. at 7.
Respondent does not dispute this sum, and therefore Petitioner is awarded this sum
without adjustment.
10

Case 1:20-vv-00239-UNJ Document 59 Filed 01/06/23 Page 11 of 11
CONCLUSION
In light of all of the above, the I award Petitioner a lump sum payment of
$101,287.29, (representing $100,000.00 for Petitioner’s actual pain and suffering and
$1,287.29 for unreimbursable medical expenses) in the form of a check payable to
Petitioner, Michelle Horky. This amount represents compensation for all damages that
would be available under Section 15(a) of the Vaccine Act. Id.
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 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