VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01141
Package ID: USCOURTS-cofc-1_20-vv-01141
Petitioner: Elizabeth Merwitz
Filed: 2020-10-11
Decided: 2022-11-14
Vaccine: influenza
Vaccination date: 2018-12-27
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 50000

AI-assisted case summary:
Elizabeth Merwitz filed a petition for compensation under the National Vaccine Injury Compensation Program on September 3, 2020, alleging she suffered a right shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on December 27, 2018. The case was assigned to the Special Processing Unit. Respondent initially contested entitlement, arguing that the onset of pain was not within 48 hours and that range of motion was not limited. The Special Master, Brian H. Corcoran, found that Petitioner was entitled to compensation. Petitioner's counsel was Amy A. Senerth of Muller Brazil, LLP, and Respondent's counsel was Christine Mary Becer of the U.S. Department of Justice. The Special Master determined that Petitioner satisfied the criteria for a Table SIRVA injury, including pain onset within 48 hours of vaccination and some mild limitations in range of motion, even though she delayed seeking treatment for three months. Causation was presumed because the injury was a Table injury. The case proceeded to damages. Petitioner sought $75,000 for pain and suffering, citing cases with awards ranging from $60,000 to $70,000. Respondent recommended $32,500. The Special Master considered the duration and severity of the injury, noting it lasted approximately eight months with mild to moderate pain and some range of motion limitations. The injury involved tendinitis and mild to moderate subacromial and subdeltoid bursitis, with an MRI showing no joint effusion or rotator cuff tear. Petitioner received a steroid injection, took Meloxicam, and attended physical therapy. Comparing the case to prior awards, particularly the Rayborn case where $55,000 was awarded, the Special Master awarded Ms. Merwitz $50,000 for pain and suffering on November 14, 2022. This award was a lump sum payment, and since it was for actual pain and suffering, no reduction to net present value was required. The Special Master directed the Clerk of the Court to enter judgment.

Theory of causation field:
Petitioner Elizabeth Merwitz, age 31, received an influenza vaccine on December 27, 2018, and subsequently developed a right shoulder injury related to vaccine administration (SIRVA). The petition was filed on September 3, 2020. Respondent contested entitlement, arguing that Petitioner failed to establish pain onset within 48 hours and demonstrated no limitations in range of motion (ROM). The Special Master, Brian H. Corcoran, found that Petitioner satisfied the criteria for a Table SIRVA injury. Medical records indicated Petitioner reported immediate sharp pain after the flu shot and that the pain never went away, supporting onset within 48 hours, despite a three-month delay in seeking treatment. While initial exams showed full ROM, subsequent physical therapy evaluations from May to June 2019 showed mild limitations in active ROM (e.g., 160 degrees of flexion), with a physical therapy goal to return full ROM. The Special Master found this mild limitation sufficient to meet the Table criteria. No other condition or abnormality explained the symptoms. Causation was presumed as SIRVA is a Table injury. The injury lasted approximately eight months, from late December 2018 to early August 2019, with mild to moderate pain. Petitioner sought $75,000 for pain and suffering, while Respondent recommended $32,500. The Special Master awarded $50,000 for pain and suffering, comparing the case to prior awards, particularly Rayborn, which involved a similar duration of injury and age of petitioner, though Rayborn had more significant ROM limitations. The award was issued on November 14, 2022. Attorneys for Petitioner were Amy A. Senerth and for Respondent was Christine Mary Becer.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01141-0
Date issued/filed: 2022-11-14
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 10/11/2022) regarding 26 DECISION of Special Master, Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:20-vv-01141-UNJ Document 30 Filed 11/14/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1141V
UNPUBLISHED
ELIZABETH MERWITZ, Chief Special Master Corcoran
Petitioner, Filed: October 11, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Table
HUMAN SERVICES, Injury; Decision Awarding Damages;
Pain and Suffering; Influenza (Flu)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On September 3, 2020, Elizabeth Merwitz 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 she suffered a right shoulder injury related to vaccine
administration (“SIRVA”), as defined in the Vaccine Injury Table, after receiving an
influenza (“flu”) vaccine on December 27, 2018. Petition at 1, ¶¶ 2, 19. The case was
assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”).
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it
contains a reasoned explanation for my determination. 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-01141-UNJ Document 30 Filed 11/14/22 Page 2 of 10
For the reasons described below, I find that Petitioner is entitled to compensation,
and I award damages in the amount $50,000.00, representing her actual pain and
suffering.
I. Relevant Procedural History
Along with her petition, Ms. Merwitz filed the medical records required by the
Vaccine Act. Exhibits 1-6; see Section 11(c). On September 11, 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. A year later, on October 8, 2021, Respondent
indicated that he was willing to engage in settlement discussions. ECF No. 16. By January
18, 2022, however, the parties had reached an impasse. ECF No. 20.
On March 7, 2022, Respondent filed his Rule 4(c) Report, setting forth his
objections to compensation. ECF No. 21. Specifically, Respondent maintains Petitioner
has failed to provide sufficient evidence to show her injury meets the Table SIRVA
definition because she has failed to establish that the onset of her right shoulder pain
occurred within 48 hours of vaccination and that she suffered any limitations to her range
of motion (“ROM”). Id. at 3-4.
During a status conference held on August 5, 2022, the parties estimated they
could file simultaneous briefing regarding the issues of entitlement and damages
(assuming I were to find Petitioner entitled to compensation). See Order, issued Aug. 5,
2022, ECF No. 23. On September 22, 2022, the parties filed their written arguments.
Petitioner’s Brief in Support of Entitlement and Damages (“Pet. Brief), ECF No. 24;
Respondent’s Brief on Entitlement and Damages (“Res. Brief”), ECF No. 25. Neither party
has filed a responsive brief.
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.
2

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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)).
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
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).
3

Case 1:20-vv-01141-UNJ Document 30 Filed 11/14/22 Page 4 of 10
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
(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) (2017).
B. Factual Finding Regarding QAI Criteria for Table SIRVA
1. Pain Onset
Respondent contests the second SIRVA Table claim criterion - whether the onset
of Petitioner’s pain occurred within 48 hours of vaccination. Res. Brief at 4; 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 three-month delay before Petitioner sought medical treatment
and her description of pain “since” her flu shot, Respondent argues “it is not clear that
[Petitioner’s] pain began within forty-eight hours.” Res. Brief at 4.
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 three-month period for any other condition or illness. Such intervening
evidence - which can collaborate or undermine a petitioner’s claim, is totally absent here.
Furthermore, there is reasonable record evidence of onset consistent with this
Table requirement. When Petitioner sought treatment for her right shoulder pain, she
4

Case 1:20-vv-01141-UNJ Document 30 Filed 11/14/22 Page 5 of 10
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.
Thus, when first treated by her orthopedist on March 28, 2019, Petitioner indicated
that “she got a flu injection in December and has been having pain ever since.” Exhibit 2
at 299. At her initial physical therapy (“PT”) evaluation on May 13, 2019, Petitioner
reported that “[i]n December, she had a flu shot and got immediate sharp pain in her right
shoulder,” adding “[t]he pain never went away.” Id. at 248.
Emphasizing Petitioner’s use of the term “since,” Respondent appears to argue
that the descriptions Petitioner provides are too vague to establish onset within 48 hours
of vaccination. But that characterization is unpersuasive. Definitions of the word “since”
include the following, which support an immediate pain onset: 1) “from a definite past time
until now” and 2) “from a particular time in the past until a later time.”4 Additionally, the full
descriptions provided by Petitioner clearly establishes an immediate onset for her pain.
At her initial PT visit, Petitioner describes her shoulder pain as “immediate.” Exhibit 2 at
248. And there is a dearth of evidence supporting a later pain onset.
All of the above amounts to preponderant evidence establishing Petitioner likely
suffered right 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. Petitioner has thus satisfied the second criterion for a Table SIRVA
injury.
2. Existence of ROM
Respondent also argues that Petitioner has not met the Table criteria for SIRVA
because “physical exams of her right shoulder consistently showed normal range of
motion.” Res. Brief at 4. He maintains that an expert report is needed “to support the
contention that [P]etitioner could have a SIRVA injury even though she consistently had
a normal range of motion in her shoulder.” Id. at 4. n1.
4 These definitions can be viewed at the Merriam-Webster and Cambridge Dictionary. See (www.merriam-
webster.com/dictionary/since; https://dictionary.cambridge.org/us/dictionary/english/since
(last visited on Oct. 3, 2022).
5

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Although I and my colleagues have previously discussed whether the existence of
a limited ROM is a requirement of a Table SIRVA injury,5 I am not aware of any definitive
ruling on this issue.6 And, as in the Dawson ruling, I need not address the issue here
because I find there is sufficient evidence to show Petitioner suffered at least some mild
reduction in her ROM.
The medical records show that, when she first sought treatment for her right
shoulder pain on March 28th, Petitioner exhibited full ROM. Exhibit 2 at 299. However, by
her initial PT evaluation on May 13th, Petitioner was observed to have mild limitations in
her active ROM – assessed as 160 degrees of flexion, 45 degrees of extension, and 160
degrees of abduction. Exhibit 2 at 249. And “[t]o return full ROM” was listed as a PT goal.
Id. By her discharge from PT on June 25th, Petitioner was again observed to have full
active ROM – assessed as 180 degrees of flexion, 45 degrees of extension, and 180
degrees of abduction. Id. at 126.
Because the SIRVA QAI contains no requirement regarding the degree of severity
and duration of any reduced ROM, the mildly limited ROM Petitioner experienced in her
right shoulder from May through June is sufficient to counter Respondent’s contention
that Petitioner exhibited full ROM throughout her claimed SIRVA injury. At most, it
counsels against a large damages award with respect to pain and suffering.
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) & (iii)-(iv). A thorough review of the record in this case does
not reveal a prior or current condition or abnormality which would explain Petitioner’s
condition or pain and limited range of motion (“ROM”) other than in Petitioner’s injured
5 See Dawson v. Sec’y of Health & Hum. Servs., No. 19-0278V, 2021 WL 5774655 (Fed. Cl. Spec. Mstr.
Nov. 4, 2021) (finding sufficient evidence of limited ROM); Portee v. Sec’y of Health & Hum. Servs., No.
16-1552V, 2018 WL 5284599 (Fed. Cl. Spec. Mstr. Sept. 14, 2018) (determining limited ROM manifesting
within 48 hours is not required for a Table SIRVA).
6 Limited ROM is mentioned twice in the SIRVA QAI. When defining SIRVA, the QAI indicates that “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.” 42 C.F.R. § 100.3(c)(10) (emphasis added).
Additionally, the third criterion requires that a petitioner’s “[p]ain and reduced range of motion are limited to
the shoulder in which the intramuscular vaccine was administered.” 42 C.F.R. § 100.3(c)(10)(iii). As I
discussed in Dawson, despite some language ambiguity, the first instance supports the premise that some
limited ROM is needed to satisfy the Table SIRVA definition. Dawson, 2022 WL 5774655, at *2-3. However,
the third criterion requires only that the reduced ROM be limited to the shoulder in which the vaccination
was administered. Id. at *3.
6

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right shoulder. 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, 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 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 to be Awarded
A. Parties Arguments
In this case, Petitioner seeks only compensation for her pain and suffering.
Characterizing her SIRVA Injury as mild to moderate and lasting over seven months,
Petitioner seeks $75,000.00 for her pain and suffering. Pet. Brief at 8-9. She favorably
compares the facts and circumstances in her case to those experienced by the petitioners
in Knauss, Kuhn, and Vinocur, who received pain and suffering awards ranging from
$60,000.00 to $70,000.00.7 Pet. Brief at 10-12.
In contrast, Respondent asserts that Petitioner should receive the lesser amount
of $32,500.00 for her pain and suffering. Res. Brief at 4-5. He characterizes Petitioner’s
SIRVA injury as mild and limited and Petitioner’s three-month delay in seeking treatment
as significant, but cites no comparable cases. Id.
B. Legal Standards for Pain and Suffering Awards
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 II and III of Friberg v. Sec’y
of Health & Hum. Servs., No. 19-1727V, 2022 WL 3152827 (Fed. Cl. Spec. Mstr. July 6,
2022).
7 Knauss v. Sec’y of Health & Hum. Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018); Kuhn v. Sec’y of Health & Hum. Servs., No. 18-0091V, 2020 WL 3750994 (Fed. Cl. Spec. Mstr.
June 5, 2020); Vinocur v. Sec’y of Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec.
Mstr. Jan.31, 2020).
7

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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.8
C. Appropriate Compensation for 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 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.
In this case, the medical records show that for approximately eight months – from
late December 2018 to early August 2019, Petitioner – a thirty-one years old at the time
of vaccination, suffered a shoulder injury involving mild to moderate and pain – often
described as intermittent, and full ROM, except for some mild limitations experienced for
several months. Exhibit 2 at 299-301, 285, 275-76, 248-49, 29 (descriptions of symptoms
in chronological order). During this time, she received a steroid injection which provided
two weeks of pain relief, began taking Meloxicam,9 and attended 17 PT sessions over a
three-month period. Id. at 299 (injection), 285 (pain relief for two weeks), 276, 285
(prescription and refill for Meloxicam), 34-271 (PT records). Performed on May 9th, an
MRI showed no joint effusion or rotator cuff tear, but tendinitis and mild to moderate
subacromial and subdeltoid bursitis. Id. at 275-76.
8 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)).
9 Meloxicam is a nonsteroidal anti-inflammatory drug (NSAID) which reduces pain, swelling, and stiffness
of the joints, often used to treat arthritis. See https://www.webmd.com/drugs/2/drug-911/meloxicam-
oral/details (last visited Oct. 10, 2022).
8

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When discharged from PT on July 22nd, Petitioner reported pain ranging between
zero (described as stiffness) and two, was observed to have almost full ROM, and was
noted to have met all goals. Exhibit 2 at 40-41. She was instructed to continue PT
exercises at home. Id. at 40.
At her last orthopedic visit on August 1, 2019, Petitioner reported that “her shoulder
has gotten much better with physical therapy,” that “she has no real pain” but only a brittle
feeling in her shoulder, that “she does not have exactly symmetrical range of motion,” and
that she continues to take her medication although she believes it doesn’t help much. Id.
at 29. Petitioner declined options of surgery and another steroid injection, opting instead
to continue her medication.
Although there are some similarities between the facts and circumstances in
Petitioner’s case and the cases she cites, each has at least one significant difference
which hinders any meaningful comparison. The Kuhn petitioner, for example, experienced
severe initial pain which caused him to seek treatment at an urgent care facility only eight
days post-vaccination. Kuhn, 2020 WL 3750994, at *2. Like the Petitioner in this case,
the Vinocur delayed seeking treatment for more than four months and suffered his SIRVA
injury for a similar overall duration. Vinocur, 2020 WL 1161173, at *12-14. However, when
he sought treatment, his pain and reduced ROM were significant, and he was diagnosed
with adhesive capsulitis. Id. at *13. The Knauss petitioner also exhibited more significant
limitations in ROM, as well as a SIRVA Injury which lasted several months longer than
Petitioner’s.10 Knauss, 2018 WL 3432906, at *2-4.
Instead, I find the Rayborn case – in which petitioner was awarded $55,000.00 -
offers the best comparison to the facts and circumstances in this case.11 Both cases
involved relatively young petitioners – in their thirties, who initially delayed seeking
treatment for several months and suffered a SIRVA injury for less than one year –
approximately eight to nine months. Rayborn, 2020 WL 5522948, at *11-12. However,
the Rayborn petitioner suffered more significant limitations in ROM. For example, that
petitioner experienced 85 degrees of active abduction compared to Petitioner’s 160
10 Additionally, the Knauss case – decided more than four years ago by one of my colleagues, involved a
much older individual who suffered prior shoulder pain and degenerative joint disease. Knauss, 2018 WL
3432906, at *2-4. Thus, any meaningful comparison with the Petitioner in this case – a healthy 31-year-old
at the time of vaccination, is difficult.
11 Rayborn v. Sec’y of Health & Hum. Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug.
14, 2020).
9

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degrees. Id. at *12. Thus, I will award Petitioner a slightly lower pain and suffering amount
- $50,000.00.
Conclusion
For all the reasons discussed above and based on consideration of the entire
record, I find that Petitioner’s right 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 $50,000.00 represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.12
I therefore award Petitioner a lump sum payment of $50,000.00, 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.13
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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)).
13 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.
10