VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00674
Package ID: USCOURTS-cofc-1_20-vv-00674
Petitioner: Charles Richardson
Filed: 2020-06-03
Decided: 2023-09-22
Vaccine: influenza
Vaccination date: 2018-10-28
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 112000

AI-assisted case summary:
Charles Richardson, a 68-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on June 3, 2020. He alleged that he suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccine administered on October 28, 2018. The respondent, the Secretary of Health and Human Services, conceded entitlement to compensation, finding that Mr. Richardson's claim met the Table criteria for SIRVA. A ruling on entitlement was issued in September 2021. The parties were unable to resolve damages, leading to a decision on August 16, 2023. Mr. Richardson sought $140,000.00 for pain and suffering, while the respondent proposed $85,000.00. Chief Special Master Brian H. Corcoran presided over the case. Mr. Richardson received the influenza vaccine on October 28, 2018. Approximately thirteen days later, he experienced left shoulder pain and decreased range of motion, which progressed. He underwent arthroscopic surgery for rotator cuff repair, subacromial decompression, and acromioplasty on February 12, 2019, approximately 3.5 months after vaccination. Following surgery and 27 physical therapy sessions, he was discharged from formal treatment on July 15, 2019, reporting no pain, full range of motion, and nearly full strength in his left shoulder. This recovery was described as excellent, occurring about nine months post-vaccination. Approximately seventeen months after his left shoulder treatment concluded, Mr. Richardson developed pain in his right shoulder, which he attributed to overuse compensating for his left shoulder. His orthopedic surgeon assessed right shoulder rotator cuff tendinopathy and bursitis, and he underwent a steroid injection and arthroscopic surgery on the right shoulder in June 2021. The public decision notes that most rotator cuff tears are age-related, and the surgeon's patient materials indicated that by age 60, approximately 30% of people have a rotator cuff tear. The Special Master found that while the left shoulder pathology was likely aggravated by the vaccine, the right shoulder pathology most likely became symptomatic due to age and/or unrelated aggravating factors. Mr. Richardson's "impact statement" was considered but given less weight due to being unnotarized, unsworn, and undated. The Special Master awarded Mr. Richardson $112,000.00 for actual pain and suffering, finding this amount appropriate based on the severity of his left shoulder injury, the surgery, the extensive physical therapy, and his excellent recovery, while noting the lack of a clear causal link to his subsequent right shoulder issues. Petitioner's counsel was Leigh Finfer of Muller Brazil, LLP. Respondent's counsel included Ida Nassar and Mallori Browne Openchowski of the U.S. Department of Justice.

Theory of causation field:
Petitioner Charles Richardson, age 68, received an influenza vaccine on October 28, 2018, and subsequently developed Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent conceded entitlement as a Table injury. The Special Master found that the left shoulder injury was likely aggravated by the vaccine, but the subsequent right shoulder injury was likely age-related and not causally linked to the SIRVA. The Special Master awarded $112,000.00 for actual pain and suffering, considering the severity and duration of the left shoulder injury, the arthroscopic surgery, and the subsequent physical therapy and recovery, while noting the lack of a clear link to the right shoulder issues. Petitioner's counsel was Leigh Finfer; Respondent's counsel included Ida Nassar and Mallori Browne Openchowski. Chief Special Master Brian H. Corcoran issued the ruling on entitlement on September 16, 2021, and the decision awarding damages on September 22, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00674-0
Date issued/filed: 2021-10-20
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/16/2021) regarding 26 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00674-UNJ Document 28 Filed 10/20/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0674V
UNPUBLISHED
CHARLES RICHARDSON, Chief Special Master Corcoran
Petitioner,
v. Filed: September 16, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Ruling on Entitlement; Concession;
Table Injury; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ida Nassar, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On June 3, 2020, Charles Richardson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 28, 2018. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
1 Because this unpublished opinion 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 opinion 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-00674-UNJ Document 28 Filed 10/20/21 Page 2 of 2
On September 15, 2021, Respondent filed his Rule 4(c) report in which he
concedes that Petitioner is entitled to compensation in this case. Rule 4(c) Report (ECF
No. 25) at 1. Specifically, Respondent concludes that Petitioner’s claim meets the Table
criteria for SIRVA. Id. at 6-7.
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

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00674-1
Date issued/filed: 2023-09-22
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 08/16/2023) regarding 46 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0674V
CHARLES RICHARDSON, Chief Special Master Corcoran
Petitioner,
v. Filed: August 16, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On June 3, 2020, Charles Richardson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 28, 2018. Petition at 1. 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 September 2021, the parties have been unable to resolve damages on their
own. For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $112,000.00 for actual pain and suffering.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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-00674-UNJ Document 50 Filed 09/22/23 Page 2 of 12
I. Procedural History
The Petition was accompanied by the medical records and affidavit required under
the Vaccine Act. Exs. 1-8 (ECF No. 1); see Section 11(c). In June 2020, the record was
deemed sufficiently complete, and the case was assigned to the SPU (OSM’s
adjudicatory system for resolution of cases deemed likely to settle). ECF No. 8.
In September 2021, a Ruling on Entitlement was issued, consistent with
Respondent’s concession (in his Rule 4(c) Report), that Petitioner had suffered a left-
sided SIRVA meeting the Table and QAI criteria. ECF Nos. 25-26.
In April 2022, Petitioner filed updated medical records as Exs. 9-11, ECF No. 34,
and forwarded a demand for Respondent’s consideration, ECF No. 35. In June 2022,
Petitioner withdrew a lost wages claim – thereby limiting his damages demand to pain
and suffering. ECF No. 37. The parties reached an impasse in their efforts to informally
resolve damages in September 2022, and thus briefed their respective positions. See
ECF No. 39-40; Petitioner’s Memorandum filed Nov. 10, 2022, ECF No. 41 (with
embedded “Ex. A” – which is an unnotarized, unsworn, undated “impact statement” from
Petitioner) (“Brief”); Respondent’s Memorandum (with attached “Appendix A”) filed Dec.
21, 2022, ECF No. 42 (“Response”); Petitioner’s Memorandum filed Jan. 5, 2023, ECF
No. 43 (“Reply”). The matter is now ripe for adjudication.
II. Authority
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 &
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
2

Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 3 of 12
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 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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 my
predecessor Chief Special Masters) adjudicating similar claims.3 Hodges v. Sec’y of
Health & Hum. 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. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013).
The Graves court 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 590. Instead, Graves
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. Although Graves is not
controlling of the outcome in this case, it provides reasoned guidance in calculating pain
and suffering awards.
I have periodically provided (in other published decisions) statistical data on pain
and suffering for SIRVA claims resolved in SPU. See, e.g., McKenna v. Sec’y of Health
& Human Servs., No. 21-0030V, 2023 WL 5045121, at *2-3 (Fed. Cl. Spec. Mstr. July 7,
3 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.
3

Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 4 of 12
2023). As noted in McKenna, as of July 1, 2023, in 173 SPU SIRVA cases that required
reasoned damages determinations, compensation for past pain and suffering ranged from
$40,000.00 to $215,000.00. Id. at *3. Cases with higher pain and suffering awards
involved prompt medical attention; high subjective pain ratings; moderate to severe
limitations in range of motion; significant findings on MRI; surgery or significant
conservative treatment; and evidence of permanent injury. Id. at *3.
III. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Consideration of the Evidence
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult, with no impairments that would impact his
awareness of his injury. Therefore, I 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, declarations, affidavits, and all other filed evidence, plus the
parties’ briefs and other pleadings. I also have considered prior awards for pain and
suffering in both SPU and non-SPU SIRVA cases, and I rely upon my experience
adjudicating these cases. However, I base my ultimate determination on the specific
circumstances of this case.
At the time of vaccination, Petitioner Charles Richardson was sixty-eight (68) years
old and had a non-contributory medical history. See generally Ex. 2 at 64-87. He received
the subject vaccine in his left arm on October 28, 2018. Ex. 1 at 1-3. No complaints or
findings pertaining to the left shoulder were documented at a November 2, 2018, annual
wellness appointment with his established primary care provider, Lindsay Olson, D.O.4;
or at a November 8, 2018, follow-up appointment with an ENT specialist. Ex. 2 at 15-17,
62-63.
But thirteen (13) days post-vaccination, on November 10, 2018, Petitioner
presented to Palos Hospital Urgent Care to address left shoulder pain. Ex. 7 at 9.
Petitioner reported that approximately two weeks prior, he had received a flu shot. Id.
There was no redness or swelling at the site, but “later that night, he felt pain and could
not move his shoulder as well.” Id. Stretching and Tylenol had not helped. Id. On physical
exam, the left shoulder exhibited “decreased range of motion and pain,” more specifically:
“Pain with flexion up to 90 degrees. Pain with external rotation.” Id. at 10. PA Kristina
Hajek assessed “acute pain of left shoulder,” for which she prescribed a Medrol
4 The earlier primary care records list Petitioner’s provider as Lindsay Multack, D.O. This appears to be the
same individual, who changed her last name over the course of the records. To the extent that it is
necessary to refer to the primary care provider, for consistency, this decision will identify her as Dr. Olson.
4

Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 5 of 12
(methylprednisolone) dose pack and Tylenol-3 (acetaminophen-codeine) and provided a
list of orthopedists to potentially consult if the pain did not improve. Id. at 11.
No complaints or findings pertaining to the left shoulder were documented upon a
November 24, 2018, phone call from Petitioner to his primary care provider regarding a
prescription refill for his preexisting gout. Ex. 2 at 12-14.
The next medical record is from December 10, 2018, and authored by Scott P.
Price, M.D., at Parkview Orthopaedic Group. Ex. 5 at 5. Dr. Price recorded Petitioner’s
similar history of post-vaccination progressive left shoulder pain which was associated
with activity, but also occurring at night. Id. The pain medication prescribed at urgent care
had not helped. Id. A physical exam of the left shoulder revealed “minimally restricted”
passive range of motion and “mildly positive impingements,” and “pain and weakness of
abduction with external rotation compared to internal rotation.” Id. An X-ray revealed a
small inferior glenoid spur and mild acromioclavicular degeneration. Id. Dr. Price
prescribed Mobic and Norco, in addition to icing the shoulder. Id. at 6.
On December 12, 2018, Petitioner had an MRI of his left shoulder. Pet. Ex. 5 at
10-11. The findings included: mild acromioclavicular degenerative changes;
supraspinatus and infraspinatus tendinosis with near full-thickness tear at the
supraspinatus tendon insertion; partial tearing along the infraspinatus tendon insertion;
superior and posterior labral tear; anterior and inferior labral tears; nonspecific marrow
edema along the posterolateral humeral head; and mild subacromial/sub-deltoid bursal
fluid. Id.
As of December 17, 2018, upon following up with Dr. Price, Petitioner was still
having weakness, difficulty reaching overhead and behind his back, pain with certain
activities, and pain at night. Ex. 5 at 12. Mobic delivered “minimal” change, but Norco
“help[ed] with his pain.” Id. Petitioner hoped to “get through the winter as he works for a
snow removal company.” Id. He would continue applying ice packs and taking Mobic;
start physical therapy (“PT”); consider a steroid injection in several weeks; and “consider
surgical repair in the spring.” Id. at 13-14.
At the January 4, 2019, PT initial evaluation, Petitioner rated his pain on average
3/10, ranging from 0 – 5/10. Ex. 5 at 16. He was “thinking of going through surgery sooner
if PT does not resolve his problem.” Id. Based on his reported difficulties including with
personal hygiene; household chores; recreational activities; work; and sleep, his shoulder
function was rated at 40%. Id. On physical exam, the left shoulder had painful and limited
active range of motion (abduction to 62 degrees; flexion to 90 degrees; external rotation
to 55 degrees; internal rotation to L4), and weakness. Id. at 17. Drop arm, infraspinatus
weakness, and empty can tests were positive. Id. at 18. The therapist aimed to prevent
5

Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 6 of 12
adhesive changes in the joint, reduce pain, and restore range of motion and strength. Ex.
5 at 18; see also id. at 23-24, 25-26 (second and third PT sessions on January 8 and 11,
2018, with reports of continued “high pain levels”).
On January 15, 2019, at his fourth PT session, Petitioner reported: “significant pain
today – after 30 hours of driving a large snowplow over the weekend. He was very sore
since then. He is feeling like he is going to need surgical repair.” Ex. 5 at 27. Due to his
pain, the therapist added electrical stimulation and a cold pack to the therapy regimen.
Id. at 28. The therapist recorded: “Slow progress towards functional goals. Pain and
weakness remain, though he has gained active shoulder ROM.” Id.
On January 17, 2019, Petitioner obtained a second opinion from orthopedic
surgeon Dane M. Salazar, M.D., at Loyola Medicine. Ex. 3 at 20. Dr. Salazar recorded a
similar history of post-vaccination, persistent left shoulder pain, despite continued use of
Mobic, currently rated at 7/10. Id. A physical exam found consistently decreased active
range of motion (no measure of abduction; flexion to 90 degrees; external rotation to 65
degrees; internal rotation to the lumbosacral junction) and weakness. Id. at 20-21. Dr.
Salazar instructed Petitioner to discontinue Mobic (meloxicam) in favor of Ultram
(tramadol). Id. at 24. Dr. Salazar and Petitioner decided to proceed to arthroscopic
surgery. Id. at 21. Accordingly, the PT course was suspended the following day. Ex. 5 at
30. Petitioner attended a pre-operative physical at his primary care practice on January
29, 2019. Ex. 2 at 7-11.5
On February 12, 2019, Dr. Salazar performed the planned arthroscopic surgery on
Petitioner’s left shoulder – specifically consisting of a rotator cuff repair, subacromial
decompression and acromioplasty, and a mini-open subpectoral biceps tenodesis. Ex. 3
at 38-42. He was discharged with a shoulder sling to wear for six weeks, and a new
prescription for Roxicodone (oxycodone) 5mg, to take one to two tablets every four to six
hours as needed for pain. Id. at 113-14. Later that day, Petitioner reported that his pain
rated 7/10. Id. at 43.
At a February 28, 2019, post-operative follow-up, Petitioner’s pain had decreased
to 4-5/10. Ex. 3 at 123. He was directed to follow a home exercise program and continue
taking oxycodone as needed for pain. Id. at 123, 125. At the next post-operative follow-
up on April 4, 2019, Petitioner’s pain was “well-controlled with pain meds… currently
taking about 1-2 oxycodone a day,” and rated 4/10. Ex. 3 at 132-33. He had discontinued
the sling but continued to comply with a 3-pound lifting restriction. Id. at 133. He would
5 Of note, Petitioner has filed primary care records dating only through April 2019, see generally Ex. 2,
with no further updates.
6

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continue to ice, elevate, and take pain medication as needed, and start formal PT. Id. at
133.
On April 9, 2019, Petitioner presented to Athletico Physical Therapy to begin post-
operative rehabilitation of his left shoulder. Ex. 6 at 99-103.6 By mid-May 2019, Petitioner
reported that “things [were] going well and [he] hope[d] to continue with PT at Athletico in
Mokena as he is about 75% on his way to recovery.” Ex. 3 at 144. His pain was “worst at
night and when it rain[ed].” Id. However, he was only taking “one pain medicine at night
to sleep… His pain ha[d] improved dramatically.” Id. at 146. Dr. Salazar concurred that
Petitioner was doing “exceptionally well,” and removed the previous lifting restriction. Ex.
3 at 146; see also Ex. 6 at 63-99 (PT sessions).
July 15, 2019, marked the 27th and last post-operative PT session for Petitioner’s
left shoulder. Ex. 6 at 15. Physical exam documented full active range of motion
(abduction and flexion to 165 degrees; external rotation to 90 degrees; internal rotation
to 60 – equal to the opposite right shoulder), and nearly full strength (except for 4+/5
flexion). Id. at 16. Petitioner was pain-free except for “minor discomfort” upon reaching
behind his back;7 he had achieved all goals and had learned a home exercise program;
and thus, was discharged from formal PT. Id. at 17.
On July 25, 2019, Dr. Salazar confirmed that Petitioner had “near full range of
motion, normal strength, and no pain off all pain medicine.” Ex. 3 at 155. He was
discharged without any formal restrictions and could follow up as needed. Id.
The filed records thereafter reflect a seventeen (17) month gap in any medical
encounters leading up to December 30, 2020, when Petitioner returned to his orthopedic
surgeon Dr. Salazar. Ex.11 at 6. It was now reported that Petitioner’s left shoulder “ha[d]
been doing quite well,” but Petitioner reported pain in the opposite right shoulder:
“[s]tart[ing] in the spring, he noticed that he was chopping some wood, he has had
progressive insidious onset pain. He has difficulty reaching, lifting away from his body,
and sleeping on his side… Feels very much like his contralateral side prior to surgery.”
Id. Based on physical exam and X-ray imaging, Dr. Salazar assessed right shoulder
rotator cuff tendinopathy, for which he administered a steroid injection. Id. at 6-7.
6 The post-operative PT sessions occurred specifically on April 9, 11, 16, 18, 23, and 26; May 1, 3, 7, 10,
14, 17, 20, 21, 23, 28, and 30; June 4, 6, 10, 13, 20, 24, 25, and 27; and July 5, 11, and 15, 2019. See
generally Ex. 6.
7 “Reaching behind back” is abbreviated as “RBB” in the medical records. Ex. 6 at 15, 17.
7

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A March 1, 2021, MRI of the right shoulder visualized a suspected full-thickness
tear of the far anterior fibers of the supraspinatus tendon and partial thickness
intrasubstance/ articular surface tears of the posterior supraspinatus and anterior
supraspinatus tendons; a glenoid labral tear involving the superior labrum;
acromioclavicular joint arthritis; and subacromial-subdeltoid bursitis. Ex. 10 at 355-56.
On March 17, 2021, Dr. Salazar reiterated that Petitioner’s left shoulder “feels
perfect. He is completely asymptomatic. He has no pain. Excellent range of motion… He
has had an excellent result from his left shoulder arthroscopic rotator cuff repair [in
February 2019].” Ex. 10 at 382-83. However, more recently, Petitioner’s right shoulder
“ha[d] become bothersome.” Id. Dr. Salazar recommended arthroscopic surgery on the
right shoulder – which he performed on June 1, 2021. Ex. 10 at 432-37; see also id. at
591, 614, 760 (initial post-operative orthopedics encounters).
On September 29, 2021, Dr. Salazar administered a second steroid injection to the
right shoulder. Ex. 10 at 89-90. On October 28, 2021, Petitioner completed a post-
operative formal PT at Loyola Medicine, and was discharged with a home exercise
program for his right shoulder. Id. at 254-273. Dr. Salazar concluded his treatment of
Petitioner’s right shoulder on December 1, 2021. Ex. 10 at 283.
In addition to the medical records summarized above, Petitioner has submitted an
“impact statement” (embedded in the Damages Brief, see ECF No. 41 at 10-12) that is
undated8 and not notarized (or sworn under penalty of perjury, which may be given “like
force and effect, see 28 U.S.C.A. § 1746). He describes difficulty supporting his wife and
two minor children; interruption of his winter job in 2019; and temporary dependence on
the opioids prescribed after his surgery, prior to recovering “approximately 90% mobility
of [his] left arm and shoulder.” ECF No. 41 at 10-12. Petitioner also stated:
Over the last few months, I have now been experiencing pain in my right
shoulder after doing what used to be simple tasks around the house like
trimming the bushes. I have always been a very fit and active person, and
always loved doing things outdoors, including maintaining my yard. I cannot
help but wonder if the pain I am now getting in the other shoulder is from
overusing it to compensate for the loss of use and strength in my left
shoulder?
ECF No. 41 at 12. Upon preparation of the impact statement, Petitioner was seeking an
appointment with his doctor, but encountering scheduling difficulties due to the COVID-
19 pandemic. Id.
8 He states in it, however, that “it is now almost 2 years since I received the vaccination” – thus placing the
statement’s preparation at no later than October 2020.
8

Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 9 of 12
B. Analysis
Petitioner seeks $140,000.00 for his pain and suffering. Brief at 1. Respondent
alternatively proposes a lesser award of $85,000.00. Response at 2.
The medical records (summarized above) reflect that Charles Richardson
experienced acute pain in his left shoulder upon administration of the October 28, 2018,
flu vaccine. The lack of documentation at two medical encounters – particularly the annual
physical five days post-vaccination, less so the ENT encounter 11 days post-vaccination
– and the subsequent medical records reflect that the initial pain was persistent, but mild
to moderate. However, Tylenol and stretching did not help, and the pain progressed to
feature decreased range of motion by the urgent care visit 13 days post-vaccination.
Petitioner continued to suffer mild to moderate pain (at worst, 5/10) despite various
prescription pain medications (Tylenol-3, Mobic, Norco) and 4 initial PT sessions – until
about two months post-vaccination, when the pain increased significantly, concurrent with
“30 hours of driving a large snowplow over the weekend.” This detail cuts both ways:
supporting both the SIRVA’s disruption to his livelihood, but also a potential independent
stressor, further aggravating the existing SIRVA. That degree of pain necessitated the
arthroscopic surgery 3.5 months post-vaccination. His initial post-surgical pain rated 7/10
and was managed with oxycodone – which he tapered down to just 1-2 tablets per day 2
months post-surgery. The medical records do not corroborate Petitioner’s assertions of
opioid dependency. He also underwent 27 post-operative PT sessions. Five and one-half
months post-surgery, which was nine months post-vaccination, Petitioner was discharged
from all formal treatment in excellent condition.
Petitioner cites McDorman for the proposition that an overuse injury in the opposite
arm can be factored into the severity analysis and justify an increased award. Brief at 6
(citing McDorman v. Sec’y of Health & Hum. Servs., No. 19-0814V, 2021 WL 5504698
(Fed. Cl. Spec. Mstr. Oct. 18, 2021). However, there is no evidence of that scenario
occurring in this case, beyond Petitioner’s own assertions. Otherwise, the record
establishes that Petitioner’s recovery of near if not full range of motion and strength in his
left shoulder was followed by a 17-month gap, followed by a new complaint of right
shoulder pain. At that time, his orthopedic surgeon Dr. Salazar confirmed that the left
shoulder was “completely asymptomatic” and did not draw any connection between the
two injuries, despite the common remedy of surgical intervention. Moreover, upon treating
each injury, Dr. Salazar included patient reference material which provides:
Most rotator cuff tears are age-related. There are changes in the quality of
the tendon tissue as we age. As a result, by the age of 60, approximately
30% of people will have a tear that may or may not cause pain, and over
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Case 1:20-vv-00674-UNJ Document 50 Filed 09/22/23 Page 10 of 12
50% of people will have some abnormality of the rotator cuff… While most
tears are age-related, some result from an injury…
Ex. 3 at 6; see also Ex. 10 at 389. Thus, although pathology in Petitioner’s left shoulder
was likely aggravated by the inflammatory reaction in and around the shoulder, described
in the QAI for SIRVA (42 C.F.R. § 100.3(c)(10)), pathology in the non-vaccinated right
shoulder most likely became symptomatic due to age and/or aggravating factors
unrelated to the prior left SIRVA.
In making this finding, I give more weight to the records than to Petitioner’s witness
statement. Even though medical records can be supplemented by fact witness statements
and representations, such statements must carry some indicia of reliability. See Section
11(c) (requiring Petitioner to submit an “affidavit”); see also 28 U.S.C.A. § 1746 (providing
that an unsworn declaration made under penalty of perjury may be given “like force and
effect” as an affidavit). Here, however, Petitioner’s impact statement is unnotarized,
unsworn, and undated – reducing its evidentiary weight from the outset.9 I have given
some consideration to Petitioner’s assertions within the impact statement – but on key
points, I find it unsupported or contradictory to the medical record evidence.
In support of his pain and suffering demand, Petitioner cites to Wilson v. Sec’y of
Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731, at *4 (Fed. Cl. Spec. Mstr.
March 18, 2021), in which $130,000.00 was awarded for actual pain and suffering. He
emphasizes the Wilson petitioner’s statement that her pain was “[was] not limiting her
daily activities [or] compromising the quality of her lifestyle.” Brief at 7. But that petitioner
offered that characterization before her surgery, making it different from Mr. Richardson’s
characterization of his pain after surgery, particularly in the initial days. In addition, and
as noted above, the medical records do not corroborate Petitioner’s contention that he
became dependent on the opioids prescribed for his post-surgical pain. Respondent also
correctly notes that Wilson featured a recurrence of mild pain, range of motion, and
positive impingement signs – which were accepted as “some residual and persisting
symptoms of her SIRVA.” Response at 11 (citing Wilson, 2021 WL 1530731 at *4). Mr.
Richardson fortunately made an excellent recovery from his left-sided SIRVA (without
sufficient linkage to his subsequent right shoulder injury). Wilson is therefore not a
particularly helpful comparable case.
9 As an administrative matter, embedding the impact statement within the Damages Brief also increases
the likelihood that the impact statement will not be reviewed alongside the formal exhibits, rather than
treating it as a separate exhibit.
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Respondent makes several different arguments defending the lower sum he
embraces. First, he suggests that it is mistaken to place an “undue premium” on the mere
occurrence of arthroscopic surgery, leading to “automatic” award of at least $100,000.00
in SIRVA cases. Rather, he argues for reliance on proffers, and on pain and suffering
determinations from traditional tort system state court cases (presented in his Appendix
A. He also argues that the pain and suffering awards in the Program have become
unreasonably inflated. But I have previously considered, and dispensed with, these
arguments in at least one publicly available reasoned opinion. See, e.g., Gray v. Sec’y of
Health & Hum. Servs., No. 20-1708V, 2022 WL 6957013, *5-6 (Fed. Cl. Spec. Mstr. Sept.
12, 2022). In short, the policy goals of the Vaccine Program are best served if outcomes
in common cases (like SIRVA vaccine injury claims) are predictable and/or subject to
some uniformity – and it has been my determination that surgery cases reasonably
present a degree of unanticipated suffering justifying a six-figure award. (Otherwise,
adjustments are always considered and made to account for the facts of each case, and
in some instances even SIRVA surgery cases result in lower pain and suffering awards).
Second, Respondent contends that his proposed figure is consistent with
comparable cases. See, e.g., Clendaniel v. Sec’y of Health & Hum. Servs., No. 20-0213V,
2021 WL 4258775, at *8 (Fed. Cl. Spec. Mstr. Aug. 18, 2021) (awarding $60,000.00).
Clendaniel featured two cortisone injections, two arthrocentesis procedures, and a longer
duration of symptoms. But in Clendaniel, I stressed that the claimant’s course was “not
extensive or invasive” specifically because it did not involve surgery or any physical
therapy – both present in Mr. Richardson’s case.
Respondent also avers that Petitioner’s pain and suffering was less severe, and
therefore warrants a lower award, than two other cases that did involve surgery.
Response at 8-9 (citing Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL
2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 for actual pain and
suffering); Shelton v. Sec’y of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093
(Fed. Cl. Spec. Mstr. May 21, 2021) ($97,500.00). These cases are not easily
comparable, however, because each featured less severe pain, steroid injections before
and after surgery, and lengthy treatment gaps. As stated in Shelton: “the fact that
Petitioner could cope with her injury for such a long period of time counsels in favor of a
lower pain and suffering award. Treatment gaps are a relevant consideration in
determining the degree of Petitioner's pain and suffering.” Shelton at *7. In comparison,
Mr. Richardson had more severe pain leading up to and while recovering from surgery,
with no steroid injections and no significant gaps in treatment.
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Petitioner’s case is, however, “nearly identical to that in” another of Petitioner’s
cited comparable cases - Moore v. Sec’y of Health & Hum. Servs., No. 19-1850V, 2022
WL 962524 (Fed. Cl. Spec. Mstr. Feb. 25, 2022) (awarding $115,000.00 for actual pain
and suffering). Brief at 6. Petitioner argues that his own pain was more severe, thereby
justifying a higher award (Brief at 6-7), while Respondent proposes that the “four-month
treatment gap early in [the Moore petitioner’s] treatment course makes it an overall
unsuitable comparator,” Response at 11. Both parties omit one important fact: the Moore
petitioner’s treatment gap was preceded by an initial course of formal PT (6 sessions)
and a cortisone injection – which can often deliver temporary relief of SIRVA pain. But
otherwise, I accept Moore as a useful comparable (although it illustrates why Petitioner’s
demand is too high).
This case is also comparable to another case not cited by the parties. Wylie v.
Sec’y of Health & Hum. Servs., No. 20-1314V, 2022 WL 17968929, *6 (Fed. Cl. Spec.
Mstr. Nov. 4, 2022). There, I determined that the SIRVA was moderate, featuring surgery
but followed by an “excellent and swift” recovery within ten months – and thus warranting
an actual pain and suffering award of $108,000.00.
Based on the parallels to Moore and Wylie, and the facts in this case, I find that an
appropriate award for Mr. Richardson’s actual pain and suffering is $112,000.00.
Conclusion
I award Petitioner a lump sum payment of $112,000.00 for actual pain and
suffering.10 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12