VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00680
Package ID: USCOURTS-cofc-1_20-vv-00680
Petitioner: Jeff Kleinschmidt
Filed: 2023-12-05
Decided: 2024-01-08
Vaccine: influenza
Vaccination date: 2018-09-11
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 60349

AI-assisted case summary:
Jeff Kleinschmidt filed a petition for compensation under the National Vaccine Injury Compensation Program on December 5, 2023, alleging a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 11, 2018. The case was assigned to the Special Processing Unit. Respondent initially argued that Petitioner failed to provide sufficient evidence for a Table SIRVA injury, specifically regarding pain onset within 48 hours and the location of symptoms being limited to the vaccinated arm. Petitioner provided evidence, including his vaccine record indicating the injection was in his left arm ("LA") and consistent histories linking his shoulder pain to the vaccine. The Special Master, Brian H. Corcoran, found that Petitioner's pain onset occurred within 48 hours of vaccination, noting that a delay in seeking treatment is common for SIRVA injuries and does not preclude entitlement. The Special Master also found that the vaccine was administered in the left arm, satisfying the location criterion. Respondent appeared to abandon the argument regarding the site of vaccination in later filings. The Special Master determined that Petitioner met all criteria for a Table SIRVA injury, thus presuming causation. For compensation, Petitioner sought $80,000.00 for pain and suffering and $5,349.33 for out-of-pocket expenses. Respondent proposed $35,000.00 for pain and suffering. The Special Master awarded Jeff Kleinschmidt $55,000.00 for past pain and suffering, comparing the case to similar SIRVA cases with comparable symptom severity and duration, and $5,349.34 for past unreimbursed expenses, including travel costs calculated at the IRS business mileage rate. The total award was $60,349.34, to be paid as a lump sum check.

Theory of causation field:
Petitioner Jeff Kleinschmidt alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) following an influenza vaccine on September 11, 2018. The injury was alleged to be a Table injury. Respondent initially contested that Petitioner failed to meet the criteria for a Table SIRVA, specifically regarding pain onset within 48 hours and the location of symptoms being limited to the vaccinated arm. Petitioner provided evidence, including his vaccine record showing "LA" (left arm) notation and consistent medical histories linking his shoulder pain to the vaccine. The Special Master, Brian H. Corcoran, found that Petitioner's pain onset occurred within 48 hours of vaccination, despite a delay in seeking treatment, and that the injury was limited to the left shoulder. Respondent appeared to abandon the argument regarding the site of vaccination. The Special Master determined that Petitioner met all criteria for a Table SIRVA injury, thus presuming causation. The award included $55,000.00 for pain and suffering and $5,349.34 for past unreimbursed expenses, totaling $60,349.34. Petitioner was represented by Amy A. Senerth of Muller Brazil, LLP, and Respondent was represented by Emilie Williams of the U.S. Department of Justice. The decision was issued on January 8, 2024.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00680-0
Date issued/filed: 2024-01-08
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 12/05/2023) regarding 44 DECISION of Special Master, Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0680V
JEFF KLEINSCHMIDT, Chief Special Master Corcoran
Petitioner, Filed: December 5, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On June 4, 2020, Jeff Kleinschmidt filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that he suffered a shoulder injury related to vaccine administration
(“SIRVA”), as defined in the Vaccine Injury Table, after receiving an influenza (“flu”)
vaccine on September 11, 2018. Petition at 1, ¶¶ 1, 12. The case was assigned to the
Special Processing Unit of the Office of Special Masters (the “SPU”).
For the reasons described below, I find that Petitioner is entitled to compensation,
and I award damages in the amount $55,000.00, representing his actual pain and
suffering, plus $5,349.34 for past unreimbursed expenses.
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 (2018).

Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 2 of 11
I. Relevant Procedural History
Along with his petition, Mr. Kleinschmidt filed the affidavit and medical records
required by the Vaccine Act. Exhibits 1-6, filed June 4, 2020, ECF No. 1; see Section
11(c). On June 12, 2020, the case was activated and assigned to the SPU (OSM’s
adjudicatory system for attempting to resolve cases deemed likely to settle). ECF No. 8.
On July 26, 2021, Respondent indicated he was willing to engage in settlement
discussions. ECF No. 19. Approximately seven months later, Petitioner reported the
parties had reached an impasse in their settlement discussions. Status Report, filed Feb.
3, 2022, ECF No. 26.
Respondent filed his Rule 4(c) Report on March 21, 2022, arguing that Petitioner
had failed to provide sufficient evidence to satisfy the requirements of a Table SIRVA
injury. ECF No. 27. Specifically, he maintains that Petitioner’s alleged injury does not
meet the second and third criteria of the Qualifications and Aids to Interpretation (“QAI”)
– related to pain onset and symptom location, for a Table SIRVA. Id. at 5-6; see 42 C.F.R.
§ 100.3(c)(10)(ii) - (iii) (2017). Regarding the third criterion – that the location of a
petitioner’s pain and reduced range of motion (“ROM”) be limited to the arm in which the
vaccination was administered, Respondent relies upon his belief that the vaccine record
does not sufficiently indicate the site of vaccination. Rule 4(c) Report at 5-6; see 42 C.F.R.
§ 100.3(c)(10)(iii).
Thereafter, I shared my views regarding onset and site of vaccination, indicating
that, although I did not believe Petitioner’s delay in seeking treatment prevented him from
establishing the required onset, it was reflective of a less severe SIRVA injury. ECF No.
29 (Order issued August 5, 2022). I instructed the parties to resume their settlement
discussions. Id.
After three months, Petitioner indicated the parties had reached an impasse in their
renewed settlement discussions. Status Report, filed Nov. 27, 2022, ECF No. 34.
Thereafter, Petitioner filed briefing regarding entitlement and damages. Petitioner’s Brief
in Support of Entitlement and Damages (“Brief”), Feb. 22, 2023, ECF No. 40. Petitioner
observes that the vaccine record contains a notation “LA” - indicating the flu vaccine
Petitioner received was administered in his left arm. Id. at 9 (citing Exhibit 1 at 1 (vaccine
record)). Regarding pain onset, he emphasizes the consistent histories he provided when
seeking treatment, linking his shoulder pain to the vaccine. Brief at 9-12. Petitioner
requests $80,000.00 for pain and suffering and $5,349.33 for out-of-pocket expenses. Id.
at 12.
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Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 3 of 11
In response, Respondent filed briefing setting forth his arguments regarding onset
and compensation. Respondent’s Response to Petitioner’s Motion for Ruling on the
Record, and Brief in Support of Damages (“Opp.”), filed Apr. 28, 2023, ECF No. 42. Thus,
it appears Respondent has abandoned his argument related to situs and the third QAI
criterion. See id. at 5-10 (entitlement discussion). Regarding pain onset, he maintains the
histories Petitioner provided in the contemporaneously created medical records and later
assertions in affidavits are insufficient to establish onset within 48 hours of vaccination.
Id. at 6-8. He insists that, if I find Petitioner entitled to compensation, a pain and suffering
award of $35,000.00 is sufficient and otherwise objects only to the mileage rate Petitioner
used when calculating his expenses. Id. at 15.
Approximately one week later, Petitioner filed his reply, reiterating his arguments
related to onset and compensation. Petitioner’s Reply to Respondent’s Response to
Petitioner’s Brief in Support of Entitlement and Damages (“Reply”), filed May 5, 2023,
ECF No. 43. The matter is now ripe for adjudication.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–
2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
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Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 4 of 11
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E).
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Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 5 of 11
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
B. Factual Finding Regarding QAI Criteria for Table SIRVA
1. Pain Onset – First Criterion
Respondent contests the second SIRVA Table claim criterion - whether the onset
of Petitioner’s pain occurred within 48 hours of vaccination. Opp. at 6-8; Rule 4(c) Report
at 6; see 42 C.F.R. § 100.3(c)(10)(ii); see also 42 C.F.R. § 100.3(a)(XIV)(B) (requiring the
first symptom or manifestation of onset within 48 hours of vaccination for a SIRVA injury
following receipt of a flu vaccine). Citing the more than four-month delay before Petitioner
sought medical treatment, the mildness of his initial pain, and the lack of a specific
description of pain within 48 hours of vaccination in the medical records (Opp. at 7),
Respondent argues “[P]etitioner’s medical records fail to demonstrate that the onset of
his alleged shoulder pain was within 48 hours of his flu vaccination” (id. at 6-7).
Petitioner counters that “[his] affidavit testimony, supported by his medical records,
provide[s] preponderant evidence that his left shoulder pain began within 48 hours of
vaccination.” Reply at 1. Acknowledging that his initial pain could be properly
characterized as “soreness, . . . a mild discomfort that did not resolve” (id.), he
emphasizes the statement from his wife (a board-certified Physician’s Assistant) that he
complained of pain immediately. Id. at 1-2 (citing his wife’s affidavit filed as Exhibit 7). He
maintains that the descriptions he used to identify the onset of his left shoulder pain, such
as after and since then have been found by me to indicate an immediate pain onset. Id.
at 2-3 (citing Williams v. Sec’y of Health & Hum. Servs., No. 17-1046V, 2020 WL 3579763,
at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2020)).
Delay in seeking treatment for a SIRVA injury is not by itself evidence that onset
of pain was not immediate. Indeed, as I have previously stated in numerous decisions
and rulings, “it is often common for a SIRVA petitioner to delay treatment, thinking his/her
injury will resolve on its own.” Bergstrom v. Sec’y of Health & Hum. Servs., No. 19-0784V,
2020 WL 8373365, at *3 (Fed. Cl. Spec. Mstr. Dec. 4, 2020). Additionally, Petitioner was
not seen during this four-and one-half-month period for any other condition or illness.
Such intervening evidence - which can collaborate or undermine a petitioner’s claim, is
totally absent here.
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Furthermore, there is reasonable record evidence of onset consistent with this
Table requirement. When Petitioner first mentioned and later sought treatment for his left
shoulder pain, he consistently reported an immediate onset. 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.
Although he did not seek treatment for left shoulder pain at his first medical
appointment post-vaccination (a primary care provider (“PCP”) appointment for high blood
pressure and lab work attended on February 18, 2019), Petitioner mentioned pain in his
left arm after receiving a flu shot. Exhibit 2 at 11, 14. And he described a lump and dull
pain in his left shoulder since receiving a flu shot at Costco in September when he
returned for medical care on April 17, 2019. Id. at 10. When seen by an orthopedist five
days later, he “state[d] [that] his symptoms began 09/29/18 after he had a flu-shot.” Exhibit
3 at 84 (emphasis added).
All of the above amounts to preponderant evidence establishing Petitioner likely
suffered left shoulder pain immediately upon vaccination. The lack of a single
contemporaneous item of evidence specifically identifying onset in 48 hours is simply not
a basis for finding against Petitioner, since the other evidence taken together supports a
favorable finding. And frankly, such an entry specifically alleging a 48-hour pain onset
would be less supportive of a SIRVA injury as it would indicate prior knowledge of the
Table requirements. Petitioner has satisfied the second criterion for a Table SIRVA injury.
2. Site of Vaccination – Third Criterion
Petitioner’s vaccine record in this case includes a designation showing he received
the flu vaccine in his left arm as alleged. Exhibit 1 at 1 (indicating “LA” in the vaccine
record); see Brief at 9 (discussing this record). And, in his later response, Respondent
appears to abandon his earlier argument regarding situs and location of pain and reduced
ROM in his later filed response. Compare Rule 4(c) Report at 5-6 with Opp. at 6-8; see
42 C.F.R. § 100.3(c)(10)(iii). Thus, I find Petitioner received the flu vaccine in his left,
injured shoulder as alleged, and has met the third Table criterion.
3. Other QAI Criteria
Respondent does not dispute any other Table SIRVA requirements, and the record
contains sufficient evidence showing Petitioner has satisfied the other QAI criteria. See
42 C.F.R. § 100.3(c)(10)(i) & (iv). A thorough review of the record in this case does not
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reveal a prior or current condition or abnormality which would explain Petitioner’s
condition or pain. Thus, all elements of a Table SIRVA claim have been preponderantly
established.
C. Other Requirements for Entitlement
Because Petitioner has satisfied the requirements of a Table SIRVA, he need not
prove causation. Section 11(c)(1)(C). However, he must satisfy the other requirements of
Section 11(c) regarding the vaccination received, the duration and severity of her injury,
and the lack of other award or settlement. Section 11(c)(A), (B), and (D). Respondent
does not dispute that Petitioner has satisfied these requirements in this case, and the
overall record contains preponderant evidence which fulfills these additional
requirements.
III. Compensation Awarded for Past Pain and Suffering
A. Legal Standards
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Sections I and II of McKenna v. Sec’y
of Health & Hum. Servs., No. 21-0030V, 2023 WL 5045121, at *1-3 (Fed. Cl. Spec. Mstr.
July 7, 2023).
In sum, 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). 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). 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.4
B. Parties’ Arguments
Emphasizing the severe pain level - rated as seven out of ten, that he reported at
his first orthopedic appointment, more than six-months post-vaccination, and pain with
4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (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)).
7

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movement after a cortisone injection one month thereafter, Petitioner seeks $80,000.00
for past pain and suffering. Brief at 12-14. He maintains that he stopped going to physical
therapy (“PT”) in late December 2019, after 23 sessions, because he “decided to take
some time off during the holidays, and come back at the end of January.” Id.at 14.
Portraying his SIRVA as moderate, he favorably compares the facts and circumstances
in his case to those experienced by the petitioners in Vinocur and Sherbine5 - decisions
featuring awards of $70,000.00. Id. at 13-14.
In contrast, Respondent asserts that Petitioner should receive the lesser amount
of $35,000.00 for past pain and suffering. Opp. at 10. Characterizing Petitioner’s injury as
“mild and limited,” he argues that “the most crucial period of time, in terms of severity and
treatment, was only one month, from the end of April until the end of May 2019.” Id. at 11
(emphasis in the original). He emphasizes the significant improvement Petitioner made
thereafter, as well as initial delays before reporting his symptoms to his PCP (four months)
and seeking treatment from an orthopedist (almost seven months). Id. at 11-12.
Distinguishing the cases cited by Petitioner, Respondent instead proposes Ramos and
Mejias6 – involving pain and suffering awards of $40,000.00 and $45,000.00, respectively.
Opp. at 12-14.
C. Appropriate Pain and Suffering Award
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 determining appropriate compensation for pain and suffering, I have
carefully reviewed and taken into account the complete record in this case, including, but
not limited to: Petitioner’s medical records, filings, and all assertions made by the parties
in written documents. I have also considered prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases, and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
The medical records show that, except for a one-month period from April to May
2019, Petitioner experienced only mild SIRVA symptoms. Even during this one-month
5 Vinocur v. Sec’y of Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan.
31, 2020); Sherbine v. Sec’y of Health & Hum. Servs., No. 17-0413V, 2020 WL 1933136 (Fed. Cl. Spec.
Mstr. Mar. 27, 2020).
6 Ramos v. Sec’y of Health & Hum. Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4,
2021); Mejias v. Sec’y of Health & Hum. Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr.
Nov. 10, 2021).
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period, Petitioner stated that his more severe pain primarily occurred with movement.
Exhibit 2 at 10; Exhibit 3 at 71. The only time he reported constant and severe pain was
during an orthopedic visit on April 22, 2019. Exhibit 3 at 84. And he reported significant
improvement (for at least a week) after receiving a cortisone injection the following week
on April 29, 2019. Exhibit 3 at 71. Furthermore, Petitioner’s pain substantially lessened
after the application of tape at his first PT session on May 10, 2019. By his second session
on May 17, 2019, he reported that “the tape gave him a lot of relief,” and “he [wa]s feeling
a noticeable difference.” Id. at 69.
Additionally, Petitioner’s initial symptoms were mild. He first mentioned his left
shoulder pain at a PCP visit on February 18, 2019, but did not seek treatment until mid-
April 2019, almost seven months post-vaccination. Exhibit 2 at 13 (1/18/19 visit), 7, 10-
11 (4/17/19 visit). Although this significant delay did not prevent Petitioner from
establishing the pain onset needed for a Table injury, it provides credible evidence of a
milder initial injury.
The only case cited by the parties which shares enough similarities to provide
helpful guidance to the present case is Ramos, involving a petitioner who also suffered
milder symptoms and delayed seeking treatment for four months. Ramos, 2021 WL
688576, at *5. However, the Ramos petitioner did not receive a cortisone injection and
attended approximately half the number of PT sessions. Id. Thus, Petitioner’s award
should be higher than the $40,000.00 awarded in Ramos.
The remaining cases cited by the parties do not offer helpful comparisons. The
Mejias petitioner sought treatment only two days post-vaccination, suffered moderate
pain levels throughout his injury, and did not receive a cortisone or attend any PT. Mejias,
2021 WL 5895622, at *6-7. Differing from Petitioner’s circumstances by almost every
metric, it provides little guidance. Additionally, both cases cited by Petitioner, Vinocur and
Sherbine, involved petitioners who suffered more significant pain levels and limitations in
ROM throughout the duration of their injuries. Vinocur., 2020 WL 1161173, at *12-14;
Sherbine, 2020 WL 1933136, at *2-3, 10-11. The Vinocur petitioner’s pain was so severe
that he questioned whether he could continue PT. Vinocur, 2020 WL 1161173, at *3-4.
Instead, I find Rayborn, Welch, and Couch7 – decisions featuring awards of
$55,000.00, to be better comparable cases. All involved petitioners who delayed
treatment, suffered symptoms involving similar severity and duration, and required, at
most, one cortisone injection and a similar amount of PT. Rayborn, 2020 WL 5522948, at
7 Rayborn v. Sec’y of Health & Hum. Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug.
14, 2020); Welch v. Sec’y of Health & Hum. Servs., No. 18-0660V, 2021 WL 4612654 (Fed. Cl. Spec. Mstr.
Sept. 2, 2021); Couch v. Sec’y of Health & Hum. Servs., No. 20-1246V, 2022 WL 4453921 (Fed. Cl. Spec.
Mstr. Aug. 24, 2022).
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*2, 11-12; Welch, 2021 WL 4612654, at *2-4; Couch, 2022 WL 4453921, at *3-5.
Additionally, like Petitioner (44 years old), the Rayborn and Couch petitioners (both 35
years old at the time of vaccination) were not likely to have experienced significant
degenerative changes prior to vaccination. Rayborn, 2020 WL 5522948, at *2; Couch,
2022 WL 4453921, at *3. And MRI results in all cases support that proposition. Id.; see
also Exhibit 3 at 91-92 (Petitioner’s MRI results). Thus, I find Petitioner should receive the
same amount of compensation for past pain and suffering as I awarded in these cases,
$55,000.00 for past pain and suffering.
IV. Compensation for Unreimbursed Expenses – Mileage Rate
The parties agree that Petitioner should be awarded $4,659.14, plus
reimbursement for 1,190 miles of travel. Brief at 16, Opp. at 15; Reply at 5. Petitioner
maintains that this travel should be reimbursed using $0.58 per mile, the IRS business
mileage rate. Brief at 16; Reply at 5. Respondent argues that $0.20, the IRS medical
mileage rate, should be applied. Opp. at 15; 15 n.6.
To support his position, Petitioner cites several cases from the late 1990s, showing
other special masters have determined the IRS business rate is appropriate to use in
vaccine cases when calculating travel expenses. Reply at 5 (citing Williams v. Sec’y of
Health & Hum. Servs., No. 99-2239V, 1996 WL 608455 (Fed. Cl. Spec. Mstr. Oct. 10,
1996) and Ashe-Robinson v. Sec’y of Health & Hum. Servs., No. 94-1096V, 1997 WL
54350 (Fed. Cl. Spec. Mstr. Jan. 23, 1997)). As the Williams special master explained,
the greater business mileage rate “is intended to cover all costs of driving a car,” not only
the cost of gasoline and oil. Williams, 1996 WL 608455, at *2. Thus, both special masters
found it more appropriate to reimburse this full cost when a petitioner drives her personal
car to medical treatment. Id.; Ashe-Robinson, 1997 WL 54350, at *2-3 (reimbursing the
petitioner for the full cost of operating her personal vehicle using the greater IRS business
rate but only actual costs for meals and gasoline when transported in another individual’s
car).
Although Respondent references a more recent decision involving the application
of the medical mileage rate, it does not provide the strong support he suggests. Opp. at
15 n. 6 (citing Hood v. Sec’y of Health & Hum. Servs., No. 16-1042V, 2021 WL 5755324,
at *11 (Fed. Cl. Spec. Mstr. Oct. 19, 2021)). In Hood, the petitioner (who suffered from
Guillain-Barré syndrome) requested an amount to cover the cost of Uber rides to and from
a recommended work hardening program, while Respondent countered that Petitioner
should be able to drive himself to these sessions as the Hood petitioner’s award included
the amount needed to add hand controls to his car. Hood, 2021 WL 5755324, at *7.
Although the special master ruled in favor of Respondent, there is nothing in the decision
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Case 1:20-vv-00680-UNJ Document 48 Filed 01/08/24 Page 11 of 11
to suggest that the Hood petitioner opposed the lower medical mileage rate employed by
Respondent or that the special master considered the mileage issue. Id. at *11.
I recently determined that travel expenses should be reimbursed using the IRS
business mileage rate employed in Williams and Ashe-Robinson, and Respondent has
again not persuaded me that the lower medical mileage rate is more appropriate. See
Gibson v. Sec’y of Health & Hum. Servs., No. 20-0243V, 2022 WL 17820891, at *12 (Fed.
Cl. Spec. Mstr. Oct. 5, 2022). I will award Petitioner amount of travel expenses he seeks,
$690.20, based upon a business mileage rate of $0.58, as well as the agreed amount of
unreimbursed expenses, $4,659.14. The total amount of unreimbursable expenses
awarded is $5,349.34.
Conclusion
For all the reasons discussed above and based on consideration of the entire
record, I find that Petitioner’s left shoulder injury meets the definition for a Table
SIRVA. Thus, causation is presumed, and Petitioner is entitled to compensation in
this case. Furthermore, I find that $55,000.00 represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.8 I also find that
Petitioner is entitled to $5,349.34 in actual unreimbursable expenses.
I therefore award Petitioner a lump sum payment of $60,349.34, in the form
of a check payable to Petitioner. This amount represents compensation for all damages
that would be available under Section 15(a) of the Vaccine Act. Id.
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.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 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)).
9 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
11