VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00485
Package ID: USCOURTS-cofc-1_20-vv-00485
Petitioner: Kimberlee Winkle
Filed: 2021-07-06
Decided: 2022-01-26
Vaccine: influenza
Vaccination date: 2017-11-11
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 74806

AI-assisted case summary:
Kimberlee Winkle, an adult, received an influenza vaccine on November 11, 2017. She alleged that she suffered a left shoulder injury related to vaccine administration (SIRVA) caused by this vaccine. The medical records indicated that she experienced pain immediately upon vaccination, which persisted and worsened over time. She sought treatment approximately five months after vaccination, reporting that the soreness from the flu shot had never resolved and had developed into pain with range of motion. She was diagnosed with SIRVA and adhesive capsulitis, and underwent multiple cortisone injections and physical therapy over approximately two years. The respondent initially contested entitlement, arguing that the onset of pain did not occur within 48 hours of vaccination. However, the court found that the evidence preponderated in favor of an immediate onset of pain, and that Ms. Winkle met all requirements for a Table SIRVA. The case then proceeded to damages. The parties agreed on compensation for past lost wages and unreimbursed expenses. After reviewing the severity and duration of Ms. Winkle's injury, and comparing it to prior cases, the court awarded her $68,500.00 for pain and suffering, bringing the total award to $74,806.77.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00485-0
Date issued/filed: 2021-07-06
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/03/2021) regarding 27 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0485V
UNPUBLISHED
KIMBERLEE WINKLE, Chief Special Master Corcoran
Petitioner, Filed: June 3, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Ruling on Entitlement;
Table Injury; Shoulder Injury Related
Respondent. to Vaccine Administration (SIRVA)
Leah Finfer, Muller Brazil LLP, Dresher, PA, for Petitioner.
Andrew Henning,1 U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND RULING ON ENTITLEMENT2
On March 27, 2020, Kimberlee Winkle filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) caused by the influenza (“flu”) vaccine she received on
November 11, 2017. Petition at 1, ¶¶ 2, 15. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Until December 6, 2020, Lisa Watts was Respondent’s counsel in this case. ECF No. 18 (Notice of
Appearance from Andrew Henning).
2 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.
3 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-00485-UNJ Document 29 Filed 07/06/21 Page 2 of 9
For the reasons discussed below, I find the onset of Petitioner’s SIRVA occurred
within 48 hours of vaccination. Specifically, Petitioner suffered pain immediately upon
vaccination. Additionally, I find that Petitioner has satisfied the requirements of a Table
SIRVA. Petitioner is entitled to compensation under the Vaccine Act.
I. Relevant Procedural History
Along with the Petition, Ms. Winkle filed her affidavit, an affidavit from her sister,
and some of the medical records required by the Vaccine Act. Exhibits 1-7, ECF No. 1.
On May 19, 2020, she filed a supporting affidavit from her friend, Ann Muir Moomaw,
whom she visited shortly after receiving the flu vaccine. Exhibit 8, ECF No. 11.
Following the initial status conference, held on July 17, 2020, Petitioner filed an
amended Petition, correcting one minor mistake – an incorrect date, and her remaining
medical records. Amended Petition, ECF No. 14; Exhibit 9, ECF No. 15. While
Respondent’s counsel agreed that all required medical records had been filed, she
speculated that “the onset of [P]etitioner’s left shoulder pain is likely to be an issue in this
case.” Status Report, Nov. 9, 2020, at 2, ECF No. 17. Respondent’s counsel based her
observation on the fact that Petitioner delayed seeking treatment until five months after
vaccination, on April 6, 2018, and an entry from a visit one month later, on May 15, 2018
when she was observed to have normal range of motion (“ROM”). Id.
Petitioner was instructed to file any additional evidence regarding the onset of her
SIRVA symptoms. Non-pdf Scheduling Order, issued Dec. 1, 2020. On February 17,
2021, Petitioner filed a status report communicating her belief “that all relevant records
and evidence, including her own affidavit and two witness affidavits, have been filed at
this time.” ECF No. 20.
On April 5, 2021, I issued a ruling on entitlement, since withdrawn, finding that the
onset of Petitioner’s pain occurred within 48 hours of vaccination and that Petitioner’s
injury met all requirements for a Table SIRVA. See 42 C.F.R. § 100.3(a) XIV.B. (2017)
(Table SIRVA following receipt of the influenza vaccine); 42 C.F.R. § 100.3(c)(10)
(additional criteria for SIRVA listed in the Qualifications and aids to interpretations
(“QAI”)). On April 26, 2021, Respondent filed a timely motion for reconsideration, which I
granted. ECF Nos. 23-24. As the basis for his request, Respondent maintained that I first
should allow Respondent to state his tentative position regarding the merits of Petitioner’s
case following the review by medical personnel at Health & Human Services (“HHS”), a
task which has been delayed due to the large number of vaccine cases filed since 2016.
Respondent’s Motion for Reconsideration at 4-5, 8-11. Respondent added that HHS
2

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 3 of 9
medical personnel may identify additional medical records which are needed in the case.
Id. at 11. When granting Respondent’s motion, I ordered Respondent to file a status report
or Rule 4(c) Report indicating whether he believes Petitioner’s injury meets the definition
for a Table SIRVA, listing any criteria he believes has not been satisfied, and providing
the basis for this belief. ECF No. 24.
On May 26, 2021, Respondent filed a status report indicating that he wished to
engage in settlement discussions with Petitioner. ECF No. 26. During email
correspondence with the OSM staff attorney assisting me on this SPU case,
Respondent’s counsel confirmed that Respondent’s objection to compensation is based
solely on his belief that the onset of Petitioner’s pain did not occur within 48 hours of
vaccination. See Informal Remark, dated May 27, 2021. He further confirmed that
Respondent did not wish to supplement the record with any additional briefing.
Petitioner’s counsel indicated Petitioner did not wish to file a response as was allowed for
in my earlier order. Id.; see ECF No. 24 (order granting Respondent’s motion for
reconsideration).
II. Finding of Fact Regarding Onset
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours as set forth in the
Vaccine Injury Table and QAI for a Table SIRVA. 42 C.F.R. § 100.3(a) XIV.B.; 42 C.F.R.
§ 100.3(c)(10)(ii) (required onset for pain listed in the QAI).
A. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
3

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 4 of 9
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, 2005 WL 6117475, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
4

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 5 of 9
B. Analysis
I make the finding regarding onset after a complete review of the record to include
all medical records, affidavits, and additional evidence. Specifically, I base the findings
on the following evidence:
• Prior to receiving the flu vaccine, Petitioner was seen for her annual physical
on January 31, 2017. There is no evidence of any left shoulder pain in this
record or any of the prior medical records. Exhibit 2 at 17-19.
• Petitioner received the flu vaccine alleged as causal in her left deltoid on
November 11, 2017. Exhibit 1 at 4, 7.
• Petitioner did not seek treatment for her left shoulder pain until seen by her
primary care provider (“PCP”) for her next annual physical on April 6, 2018
– nearly five months post-vaccination. Exhibit 2 at 14-16. At this visit, she
reported that the soreness she experienced when she had her flu vaccine
“ha[d] never resolved” and developed into pain with ROM. Id. at 14. Upon
examination, her PCP observed “pain with ROM at or near [the] site of
vaccination.” Id. at 15. Petitioner was referred to an orthopedist. Id. at 16.
• At her first orthopedic visit, on April 18, 2018, Petitioner reported “[l]eft arm
pain at injection site in left deltoid area” which has never gotten better, only
worse. Exhibit 3 at 39. Describing her pain as aching and throbbing with
loss of ROM and stiffness, Petitioner indicated the onset of her injury was
November 11, 2017. Id. The orthopedist administered a cortisone injection
and prescribed physical therapy (“PT”). Id. at 43.
• At her initial PT evaluation on May 2, 2018, Petitioner reported “onset of left
shoulder pain and stiffness [on] 11/11/2017 after receiving a flu shot.”
Exhibit 4 at 118. She again described “continued increasing soreness
following her flue [sic] shot, which never went away.” Id. Regarding specific
tasks, she reported difficulty taking off her jacket, blowing her hair, reaching
behind her back, and reaching for the phone at work. Id. Upon examination,
Petitioner exhibited limited continued ROM. Id. at 119-20.
• On May 15, 2018, Petitioner was seen by her PCP for an issue with her
thyroid and follow-up labs. Exhibit 2 at 11. In the medical record from this
visit, it is noted that Petitioner was recently diagnosed with adhesive
capsulitis, seen by an orthopedist, and was currently undergoing PT. Id.
5

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 6 of 9
Under the examination section (musculoskeletal), normal ROM is listed.
Petitioner was diagnosed with hypothyroidism and prescribed medication.
Id. at 12.
• In the medical history from a January 31, 2019 visit to the orthopedist, it was
again noted that Petitioner’s left shoulder pain “started after she got her flu
shot about 15 months ago.” Exhibit 3 at 25. Her diagnosis was “SIRVA.
Shoulder injury after vaccine administration.” Id. at 27. It was also noted that
she had “[m]inimal improvement of ROM after PT.” Id.
• When Petitioner returned to PT in February 2019, she again reported
receiving “a flu shot in November 2017 . . . [and] had lateral deltoid pain
ever since” and listed the onset of her pain as 11/11/2017. Exhibit 4 at 82.
She exhibited left shoulder decreased ROM for both passive and active
movements. Id. at 84-85. Her PT goals included increased motion and
decreased pain. Id. at 82.
• Petitioner returned to the orthopedist in late March and April, 2019. Exhibit
3 at 12-23. On March 28, 2019, she reported improvement, mild soreness,
and pain at a level of two out of ten. Id. at 19. By May 29, 2019, she had
reached a plateau with continued pain and decreased ROM. Id. at 12.
• At an orthopedic appointment on October 8, 2019, almost two years after
vaccination, Petitioner described her onset as gradual and indicated that
her problem “began 1-2 years ago.” Exhibit 3 at 5.
• At her annual physical on November 6, 2019, it was noted that Petitioner
“[h]ad frozen shoulder from last flu shot - refuses all shots.” Exhibit 2 at 4.
• Petitioner submitted affidavits from her sister and friend which support the
facts and circumstances she alleges. Exhibits 7-8.
It is common for a SIRVA petitioner to delay treatment, thinking his/her injury will
resolve on its own. Thus, while the five-month delay in this case is longer than most, it is
not unreasonable, given Petitioner’s description of a gradually increasing pain level.
Additionally, Petitioner did not seek treatment for any other medical condition or illness
during this five-month period. Such intervening treatment evidence can in many cases
either corroborate a petitioner’s claim or undermine it – but it is totally absent here.
6

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 7 of 9
In multiple post-vaccination medical records, Petitioner consistently reported left
shoulder pain, which never ceased, immediately upon vaccination. Without fail, she
attributed her injury to the flu vaccine she received on November 11, 2017. On multiple
occasions she identified the date of onset as November 11, 2017. While these entries
were based upon information provided by Petitioner, they still should be afforded greater
weight than more current representations, as they were uttered contemporaneously with
Petitioner’s injury for the purposes of obtaining medical care.
The Federal Circuit has stated that “[m]edical records, in general, warrant
consideration as trustworthy evidence . . . [as they] contain information supplied to or by
health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras,
993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight
should be accorded to this information even when the information is provided by
Petitioner.
In addition to Petitioner’s delay in treatment, Respondent’s counsel emphasized
two entries which she believed undercut Petitioner’s claim of immediate onset. First, she
noted that normal ROM was observed during a PCP appointment in May 2018 - one
month after Petitioner first complained of her SIRVA. Status Report, filed Nov. 9, 2017, at
2, ECF No. 17 (comparing Exhibit 2 at 154 (4/6/18 record) with id. at 11 (5/15/18 record)).
However, this later visit was for a thyroid issue and follow-up for labs. Id. Thus, it is unlikely
a ROM examination was performed, or would have been contemplated at a visit for a
different medical concern. Additionally, by this time Petitioner had seen the orthopedist,
per her PCP’s referral, and attended two PT sessions. Exhibit 3 at 39-45; Exhibit 4 at 113-
21. This treatment is noted in the PCP medical record from the May 15, 2018 visit. Exhibit
2 at 11. Limited ROM was observed by both the orthopedist and physical therapist. Exhibit
3 at 41; Exhibit 4 at 119-20.
Respondent’s counsel also stressed the onset description, “1-2 years ago,”
Petitioner provided in late 2019. Status Report at 2 n.1; see Exhibit 3 at 5 (record from
October 8, 2019 orthopedic visit). This general description, provided two years after
vaccination, does not negate the multiple other entries, created closer in time to her injury,
when Petitioner provided the exact date of vaccination for onset or described her pain
and soreness as occurring immediately and never ceasing.
Accordingly, I find there is preponderant evidence to establish the onset of
Petitioner’s pain occurred within 48 hours of vaccination. Specifically, I find the onset of
petitioner’s pain immediately upon vaccination.
4 Respondent’s counsel mistakenly referred to page 12, but it is clear this was a simple mistake.
7

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 8 of 9
III. Requirements for Table SIRVA
Because I have determined the onset of her left shoulder pain occurred
immediately upon vaccination, Petitioner has met the timing required for a Table SIRVA
and has fulfilled the second of the four QAI Table criteria. See 42 C.F.R. § 100.3(a)(XIV)
(Table entry for SIRVA following influenza vaccine); 42 C.F.R. § 100.3(c)(10)(ii) (second
QAI requirement). To establish that she suffered a Table SIRVA, Petitioner must satisfy
the additional three QAI requirements. 42 C.F.R. § 100.3(c)(10)(i) (iii-iv).
The record in this case contains no indication that Petitioner suffered prior left
shoulder issues. See 42 C.F.R. § 100.3(c)(10)(i). Nor is there evidence of any other
condition or abnormality that would explain the left shoulder pain she experienced. See
42 C.F.R. § 100.3(c)(10)(iv).
Petitioner consistently characterized her left shoulder pain as soreness, aching,
and throbbing in her left shoulder. Exhibits 2 at 14; 3 at 25, 39; 4 at 82, 118. Regarding
its location, she described her pain as “in the deltoid muscle . . . right at the site” (Exhibit
3 at 25) and “located on the left upper arm” (id. at 39). At least one of her treating
physicians observed “[t]enderness of the anterior deltoid, biceps, infraspinatus, middle
deltoid, supraspinatus, teres minor and triceps.” Exhibit 4 at 119. Likewise, Petitioner
exhibited limited ROM in only her left shoulder throughout 2018 and 2019. Exhibits 2 at
15; 3 at 27; 4 at 84-85, 119-20. Thus, Petitioner has satisfied all QAI criteria for a Table
SIRVA.
IV. Additional Requirements for Entitlement
Because Petitioner has satisfied the requirements of a Table SIRVA, she need not
prove causation. Section 11(c)(1)(C). However, she must satisfy the other requirements
of Section 11(c) regarding the vaccination received, the duration and severity of
petitioner’s injury, and the lack of other award or settlement. Section 11(c)(A), (B), and
(D).
The vaccine record shows Petitioner received the flu vaccine in her left deltoid at
a Rite Aid Pharmacy in California. Exhibit 1 at 4, 6-7; see Section 11(c)(1)(A) (requiring
receipt of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the
United States or its territories). Additionally, there is no evidence that Petitioner has
collected a civil award for his injury. See Section 11(c)(1)(E) (lack of prior civil award).
Finally, the medical records show that more than six months after vaccination,
Petitioner continued to suffer the residual effects of her SIRVA. See Section 11(c)(1)(D)(i)
8

Case 1:20-vv-00485-UNJ Document 29 Filed 07/06/21 Page 9 of 9
(statutory six-month requirement). At her May 16, 2018 PT session, Petitioner reported
pain at a level of five out of ten and tenderness was observed. Exhibit 4 at 111-12.
Thereafter, Petitioner attended approximately 12 additional PT sessions through July
2018 and continued to pursue treatment for her SIRVA as late as October 2019. Exhibits
3 at 5; 4 at 87-110. Thus, Petitioner has satisfied all requirements for entitlement under
the Vaccine Act.
V. Conclusion
Based on the entire record in this case, I find that Petitioner has provided
preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is
entitled to compensation in this case.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00485-1
Date issued/filed: 2022-01-26
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 01/11/2022) regarding 38 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00485-UNJ Document 42 Filed 01/26/22 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0485V
UNPUBLISHED
KIMBERLEE WINKLE, Chief Special Master Corcoran
Petitioner, Filed: January 11, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On April 22, 2020, Kimberlee Winkle 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 left shoulder injury related to vaccine
administration (“SIRVA”) caused by the influenza (“flu”) vaccine she received on
November 11, 2017. Petition at 1, ¶¶ 2, 15. The case was assigned to the Special
Processing Unit of the Office of Special Masters. Although a ruling on entitlement in
Petitioner’s favor was issued in early June 2021, the parties have been unable to resolve
damages on their own.
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 1:20-vv-00485-UNJ Document 42 Filed 01/26/22 Page 2 of 12
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $74,805.77, representing compensation in the amounts of
$68,500.00 for actual pain and suffering, $3,955.13 for past lost wages, and
$2,350.64 for past unreimbursed expenses.
I. Relevant Procedural History
Respondent initially opposed compensation in this case, based on his belief that
Petitioner had failed to establish the onset required for a Table SIRVA (within 48 hours of
vaccination).3 On June 3, 2021, I issued a ruling on entitlement, finding that the onset of
Petitioner’s pain occurred within 48 hours of vaccination and that Petitioner’s injury
otherwise met all requirements for a Table SIRVA. ECF No. 27.
On September 28, 2021, Respondent informed me that the parties had reached
an impasse in their damages discussions. ECF No. 33. The parties completed their
briefing on their respective damages positions on November 29, 2021. ECF Nos. 34-37.
The matter is now ripe for adjudication.
II. 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 award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
3 Based upon informal discussions noting a potential issue regarding onset in this case, I issued a ruling on
entitlement on April 5, 2021, since withdrawn, finding that the onset of Petitioner’s pain occurred within 48
hours of vaccination and that Petitioner’s injury met all requirements for a Table SIRVA. See 42 C.F.R. §
100.3(a) XIV.B. (2017) (Table entry for SIRVA); 42 C.F.R. § 100.3(c)(10) (Qualifications and Aids to
Interpretation (“QAI”)). On May 4, 2021, however, I granted Respondent’s motion for reconsideration and
withdrew the ruling to allow Respondent time to complete the Health and Human Services (“HHS”) review.
ECF No. 24. When granting Respondent’s motion, I ordered Respondent to file a status report or Rule 4(c)
Report indicating whether he believes Petitioner’s injury meets the definition for a Table SIRVA, listing any
criteria he believes has not been satisfied, and providing the basis for this belief. Id. at 5. In late May 2021,
Respondent confirmed that his sole objection to compensation was his belief that the onset of Petitioner’s
pain did not occur within 48 hours of vaccination. See Informal Remark, dated May 27, 2021.
2

Case 1:20-vv-00485-UNJ Document 42 Filed 01/26/22 Page 3 of 12
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (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 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
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III. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 See, e.g., Sakovits v. Sec’y of Health & Human 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).
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not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.8
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
Although some petitioners asserted residual pain, the prognosis in these cases was
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
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positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult, with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
In performing this analysis, I have reviewed the record as a whole, including all
medical records and affidavits filed, plus the parties’ briefs and other pleadings. I also
have taken into account prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases, and rely upon my experience adjudicating these cases. However, I base
my ultimate determination on the specific circumstances of this case.
A. The Parties’ Arguments
The parties agree Petitioner should be awarded $3,955.13 for her past lost wages,
and $2,350.64 for past unreimbursed medical expenses. Petitioner’s Brief in Support of
Damages (“Brief”) at 1 n.1, ECF No. 34; Respondent’s Damages Brief (“Opp.”) at 2 n.1;
ECF No. 35. Thus, the only area of disagreement is regarding the amount of
compensation which should be awarded for Petitioner’s pain and suffering.
Petitioner compares the facts and circumstances in her case favorably with the
experiences of the petitioners in Hein, Binette, and Dawson-Savard, all of whom received
awards ranging from $93,000.00 to $130,000.00 for past pain and suffering.9 Brief at 5-
9 Hein v. Sec’y of Health & Human Servs., No.19-1943V, 2021 WL 4805232 (Fed. Cl. Spec. Mstr. Sept. 14,
2021) (awarding $93,000.00 for actual pain and suffering); Binette v. Sec’y of Health & Human Servs., No.
16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (ruling determining an appropriate award
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7. Additionally, the Binette and Dawson-Savard petitioners also received a future award,
representing the net present value of yearly awards of $1,000.00 and $500.00,
respectively.10
Petitioner asserts that her award should be greater than that awarded in Hein but
less than those awarded in Binette and Dawson-Savard. Brief at 7. Emphasizing the Hein
petitioner’s fluctuating pain levels, gaps in treatment, and lower amount of PT, Petitioner
argues that her “SIRVA, plus her related treatment and recovery, was moderately more
severe than that experienced by the petitioner in Hein.” Id. at 6. Although she
characterizes her SIRVA as “slightly less severe” than the injuries suffered by the
Dawson-Savard and Binette petitioners, she maintains similarities exist – specifically the
delay in initial treatment in Dawson-Savard and the treatment in Binette. Id. at 7. She
acknowledges that her SIRVA has not been shown to be permanent and thus, she has
not sought an award for future pain and suffering. Id. at 7-8.
Characterizing Petitioner’s injury as comparatively minor - requiring only
conservative treatment - Respondent argues that Petitioner should receive the lesser sum
of $40,000.00 for her pain and suffering. Opp. at 6. He “contends that the instant case is
consistent with other ‘below-median awards’ and that its case specific characteristics
indicate the award should be near the bottom of the ‘below-median’ range.” Id. at 8 (citing
the description of cases warranting these lower pain and suffering awards in Edens v.
Sec’y of Health & Human Servs., No. 19-1110V, 2021 WL 2182720 (Fed. Cl. Spec. Mstr.
Apr. 26, 2021)). The severity of Petitioner’s pain and course of treatment is most
comparable to that experienced by the petitioner in Rayborn, who received an award of
$55,000.00.11 Opp. at 9.
Respondent also discusses Program awards generally, and the Vaccine Act’s
$250,000.00 cap on awards for pain and suffering. Opp. at 5-6. Stressing that proffered
amounts represent “his full value assessment” (id. at 6), Respondent maintains that
to be $130,000.00 for actual pain and suffering and $1,000.00 per year for projected pain and suffering);
Dawson-Savard v. Sec’y of Health & Human Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec. Mstr.
July 14, 2020) (ruling determining an appropriate award to be $130,000.00 for actual pain and suffering and
$500.00 per year for projected pain and suffering).
10 Binette v. Sec’y of Health & Human Servs., No. 16-0731V, 2019 WL 2366598 (Fed. Cl. Spec. Mstr. Apr.
2, 2019) (awarding $130,000.00 for actual pain and suffering and $41,212.94 as the net present value of
the annual payments of $1,000.00 for projected pain and suffering); Dawson-Savard v. Sec’y of Health &
Human Servs., No. 17-1238V, 2020 WL 5522939 (Fed. Cl. Spec. Mstr. Aug. 14, 2020) (awarding
$130,000.00 for actual pain and suffering and $11,009.25 as the net present value of the annual payments
of $500.00 for projected pain and suffering).
11 Rayborn v. Sec’y Health & Human Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug.
14, 2020) (awarding $55,000.00 for actual pain and suffering).
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greater awards encourage petitioners to reject his proffers, creating more work for the
Court and Respondent and increasing the attorney fees to be paid by Program funds. Id.
6-7.
In their responsive briefs, the parties addressed the opposing party’s arguments
and comparable cases. Emphasizing the duration of her injury, amount of treatment - four
cortisone injections and regular PT, and potential need for surgery, Petitioner argues that
Respondent’s characterization of her case as warranting a below-median award is
inaccurate. Petitioner’s Reply Brief in Support of Damages (“Reply Brief”) at 1-2, ECF No.
36. She also argues that her initial five-month delay in seeking treatment was not as
significant as Respondent portrays. Id. at 2-3. Regarding Respondent’s comparison of
her SIRVA to that suffered by the Rayborn petitioner, Petitioner insists the duration and
severity of her injury were more significant. Id. at 3.
Likewise, Respondent disputes the comparisons advanced by Petitioner.
Response to Petitioner’s Memorandum Regarding Damages (“Reply Opp.”) at 1-3, ECF
No. 37. He argues that the pain levels experienced by the Hein petitioner were greater
and stresses that Petitioner did not quickly report her pain or suffer the loss of a loved
profession as the Binette petitioner. Reply Opp. at 2-3. When distinguishing the facts in
Dawson-Savard, Respondent emphasizes the permanent nature of the Dawson-Savard
petitioner’s SIRVA. Id. at 3.
B. Analysis
The guidance provided by the Graves decision is clear (although not controlling),12
and I have previously addressed the more general arguments about calculation of pain
and suffering damages made by Respondent during expedited “Motions Day” hearings
and in other damages decisions. I have specifically rejected Respondent’s argument “that
the amounts awarded in proffered cases are a more accurate gauge of the appropriate
amount to be awarded than reasoned decisions from the court and special masters.”
Sakovits, 2020 WL 3729420, at *4.
1. Duration and Severity of SIRVA Injury
A thorough review of the medical records reveals that Ms. Winkle suffered a mild
SIRVA for approximately two years. Although she required four cortisone injections and
48 PT sessions, she suffered only moderate to mild pain levels and limited ROM
throughout her injury. She consistently reported pain levels of zero or one at the beginning
of her PT sessions in 2019, during the second year of her injury. By late 2019, her SIRVA
12 See supra Section II (for further discussion).
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was substantially resolved.
Another factor bearing on pain and suffering was a delay in seeking initial
treatment and/or complaining of the injury. By her own admission, Petitioner did not report
to treaters her left shoulder pain until at least three months post-vaccination. Exhibit 6 at
¶¶ 5-6 (Petitioner’s Affidavit). Although not sufficient to counter her assertion that she
suffered pain immediately upon vaccination, this delay is relevant when considering the
severity of her earlier symptoms.
At her first appointment with her PCP on April 6, 2018, Petitioner reported
“soreness [which] has never resolved [and] [n]ow pain with ROM.” Exhibit 2 at 14. This
entry suggests that her earlier pain was mild and had recently increased, particularly with
movement. At her first orthopedic appointment two weeks later, Petitioner again
described pain which had worsened over time. Exhibit 3 at 39. She was diagnosed with
adhesive capsulitis, administered her first cortisone injection, and provided with a PT
referral. Id. at 43.
On May 2, 2018, Petitioner attended her first PT session. Exhibit 4 at 117-21 (initial
evaluation), 115-16 (daily note). The record from her initial evaluation shows she
complained of “increasing soreness following her flue [sic] shot,” rating her pain level as
ranging between four to six and currently four. Id. at 118. Shortly thereafter, Petitioner
consistently reporting a pain level of three prior to future PT sessions, with occasional
levels ranging from four to six. Id. at 95-113. By late June and July 2018, these levels had
reduced to between two and three. Id. at 89-95. Her ROM had improved significantly,
especially when reaching overhead – the movement which was previously most
impacted. Id. at 93. When discharged from PT in late July 2018, it was noted that
Petitioner had cancelled four sessions and failed to appear for another three sessions. Id.
at 87.
Although Petitioner alleges to have experienced no improvement shortly after her
first cortisone injection (Exhibit 4 at 117), it appears a second injection, administered on
August 20, 2018 (Exhibit 3 at 32), as well as the PT she participated in during May through
July, provided some relief. When she next visited the orthopedist, more than five months
later in late January 2019, she reported “relief in the anterior shoulder,” but continued
“pain in the deltoid muscle.” Exhibit 3 at 25. Petitioner received her third cortisone injection
and another PT referral. Id. at 28.
Petitioner showed further improvement during 34 PT sessions from mi-d February
through late September 2019 (Exhibit 4 at 2-86) and following her fourth cortisone
injection, administered in late May 2019 (Exhibit 3 at 12). Prior to the later 17 sessions,
beginning in early June 2019, she reported pain ranging from one to zero, except for one
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instance when she rated her pain at a three. Exhibit 4 at 2-40. At her last PT session on
September 26, 2019, it was noted that Petitioner’s pain was still one of out ten and that
she “can’t get it past one.” Id. at 6.
At her last orthopedic visit on October 8, 2019, it was noted that Petitioner’s ROM
was much improved – that she was lacking only a few degrees of terminal flexion with
much better external and internal rotation. Exhibit 3 at 8. The lack of acute findings on the
MRI, performed on June 13, 2019, was discussed and Petitioner’s injury was
characterized as left biceps tendonitis. Id.; Exhibit 4 at 354 (MRI results). Further
conservative and surgical options were discussed, and it was noted that Petitioner would
alert the orthopedist if she wished to proceed with surgery. Exhibit 3 at 8.
It appears Petitioner did not pursue further treatment, even additional conservative
options. At a comprehensive preventative visit with her PCP on November 6, 2019,
Petitioner failed to mention any ongoing symptoms. Exhibit 2 at 3-5. Her SIRVA injury is
mentioned only once as a past injury, and the basis for her refusal of all vaccinations. Id.
at 4.
2. Comparison to Other Awards
Although I commend the parties for identifying cases involving facts and
circumstances they believe are similar to those suffered by Petitioner, I do not find those
cases to be comparable in the final analysis. The cases cited by Petitioner, for example,
involved symptoms of greater severity and duration than those suffered by Ms. Winkle.
Hein, 2021 WL 4805232, at *5-6; Binette, 2019 WL 1552620, at *13-14; Dawson-Savard,
2020 WL 4719291, at *2-3. Additionally, the Hein petitioner was seven months pregnant
at the time of vaccination, and the petitioners in both Binette and Dawson-Savard
provided persuasive evidence of a permanent injury. Hein, 2021 WL 4805232, at *5;
Binette, 2019 WL 1552620, at *14; Dawson-Savard, 2020 WL 4719291, at *3.
Respondent did little better in identifying useful comparables. Although the
Rayborn case cited by Respondent involved an initial delay in treatment and similar
severity of symptoms, the duration of the Rayborn petitioner’s injury was much less – nine
months as opposed to two years. Rayborn, 2019 WL 1552620, at *2, 11. And the Rayborn
petitioner required only one cortisone injection and 14 PT sessions over a period of two
months. Id. at *2-3.
Instead, I find the facts and circumstances in Petitioner’s case are similar to those
experienced by the petitioners in Hearth, Sakovits, and, Edens, who received awards
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ranging from $67,500.00 to $70,000.00 for past pain and suffering.13 However, both the
Edens and Sakovits petitioners suffered more severe initial pain and sought treatment
within days of vaccination. Edens, 2021 WL 2182720, at *6.14 Although the Hearth
petitioner required only two cortisone injections, the Edens petitioner continued to
consistently report pain at a level of four, despite receiving four cortisone injections. Id.
Thus, I find Petitioner’s pain and suffering amount should fall somewhere between the
awards in these cases, $67,500 for Hearth and $70,000.00 for Edens.
The facts and circumstances in Petitioner’s case are most like those in Sakovits –
where a petitioner received $68,000.00. Sakovits, 2020 WL 3729420. The Sakovits
petitioner also delayed seeking treatment until more than three months post-vaccination,
as here, and discussed the option of surgery with her orthopedist to combat the last of
her residual pain. Id. at *3. Although the Sakovits petitioner received only one cortisone
injection, the lack of further injections can be attributed to the absence of relief from the
first injection. Instead, the Sakovits petitioner’s symptoms improved after she attended a
similar amount of PT as Petitioner. The Sakovits petitioner reported higher pain levels,
but the duration of her SIRVA was only eleven months. Id.
Thus, I find these cases analogous, and will award a slightly higher, but almost
equivalent, amount to account for the longer duration of Petitioner’s injury. In addition, I
note that although Petitioner alleges ongoing symptoms and the potential need for
surgery in the future, she has not requested an award for future pain and suffering in this
case. Brief at 7-8. I therefore do not include such a damages component. In any event,
there is insufficient evidence in the record as it currently stands to support such an award.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $68,500.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.15 I also find that Petitioner
13 Hearth v. Sec’y Health & Human Servs., No. 19-0589V, 2021 WL 5754962 (Fed. Cl. Spec. Mstr. Nov. 1,
2021) (awarding $67,500.00 for actual pain and suffering); Sakovits, 2020 WL 3729420 (awarding
$68,000.00 for actual pain and suffering); Edens, 2021 WL 2182720 (awarding $70,000.00 for actual pain
and suffering).
14 In Hearth, because the parties’ disagreement was limited to the amount to be paid for Petitioner’s actual
pain and suffering and their proposed amounts differed by less than $20,000.00, I issued a bench ruling at
the end of an expedited “Motions Day” hearing, held on October 29, 2021. Hearth, 2021 WL 5754962, at
*1. Thereafter, I issued a cursory decision incorporating the transcript in which I set forth my ruling, but
which did not set forth in any detail the basis for my determination (as discussed at the hearing). Id. at *1
n.3.
15 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
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is entitled to $3,955.13 in actual lost wages and $2,350.64 in actual unreimbursable
expenses.
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $74,805.77 in the form of a check payable to Petitioner. This amount
represents compensation for all damages that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
16 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12