VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01346
Package ID: USCOURTS-cofc-1_20-vv-01346
Petitioner: Renee Majerus
Filed: 2020-10-08
Decided: 2023-07-17
Vaccine: influenza
Vaccination date: 2017-10-11
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 135000

AI-assisted case summary:
Renee Majerus, a 42-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on October 8, 2020. She alleged that she sustained a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on October 11, 2017. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on June 6, 2022, conceding that Ms. Majerus was entitled to compensation. The respondent agreed that she met the criteria set forth in the Vaccine Injury Table for SIRVA, including timely filing, receiving the vaccine in the United States, and experiencing residual effects for more than six months. A ruling on entitlement was issued on June 7, 2022, finding Ms. Majerus entitled to compensation. Although entitlement was conceded, the parties could not agree on damages, leading to a "Motions Day" proceeding. The decision awarding damages was issued on July 17, 2023. Ms. Majerus's medical history indicated that she received an influenza vaccine in her right deltoid on October 11, 2017. Within two weeks, she developed right shoulder pain, diagnosed as rotator cuff tendonitis/bursitis. Her pain worsened, and an MRI on December 20, 2017, revealed severe tendinitis and a partial tear of the infraspinatus tendon, with bone marrow edema and fluid in the subacromial/subdeltoid bursa. She underwent a steroid injection and began physical therapy, but did not immediately start PT sessions due to difficulties with a workers' compensation claim. An independent medical evaluation on May 22, 2018, questioned the relationship between the injection and the rotator cuff findings. Ms. Majerus continued to experience pain and limited range of motion. Her condition impacted her employment, leading her to resign from her ICU nursing position and take a lighter duty role. She eventually underwent arthroscopic shoulder surgery on November 5, 2019, for subacromial decompression, acromioplasty, debridement of a partial thickness rotator cuff tear, and distal clavicle excision. Post-surgery, she attended 31 physical therapy sessions. By April 6, 2020, five months after surgery, her pain was rated at 0/10, and she was advised she could resume full activities. On May 6, 2020, she reported improvement but still experienced weakness. The Special Master considered the severity and duration of Ms. Majerus's suffering, noting the delay in treatment due to her workers' compensation claim, which the Special Master found to have involuntarily increased and prolonged her suffering. The Special Master awarded Ms. Majerus $135,000.00 for actual pain and suffering. This award considered the moderately severe nature of the SIRVA case involving surgery, the two-and-a-half-year overall course of treatment, and the impact on her employment and family life, while also noting that no lost wages claim was made. The award was a lump sum payment. Chief Special Master Brian H. Corcoran issued the ruling on entitlement and the decision awarding damages. Petitioner was represented by Howard Dale Mishkind of Mishkind Law Firm Co., L.P.A. and later Mishkind Kulwicki Law Co., L.P.A. Respondent was represented by Benjamin Patrick Warder of the U.S. Department of Justice.

Theory of causation field:
Petitioner Renee Majerus, age 42, received an influenza vaccine on October 11, 2017. She alleged a shoulder injury related to vaccine administration (SIRVA). Respondent conceded entitlement, agreeing Petitioner met the criteria for SIRVA on the Vaccine Injury Table. The parties could not agree on damages. The Special Master awarded $135,000.00 for pain and suffering. The public decision does not detail the specific mechanism of injury or name any medical experts. The award was based on the severity and duration of the injury, including a two-and-a-half-year treatment course, surgery, and the impact on employment and family life, while noting delays in treatment due to a workers' compensation claim. Petitioner was represented by Howard Dale Mishkind and Benjamin Patrick Warder represented Respondent. Chief Special Master Brian H. Corcoran issued the decision on July 17, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01346-0
Date issued/filed: 2022-07-08
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/07/2022) regarding 30 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (ke) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01346-UNJ Document 33 Filed 07/08/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1346V
UNPUBLISHED
RENEE MAJERUS, Chief Special Master Corcoran
Petitioner, Filed: June 7, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
RULING ON ENTITLEMENT1
On October 8, 2020, Renee Majerus filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she sustained a shoulder injury related to vaccine
administration (SIRVA) resulting from the adverse effects of an influenza (flu) vaccination
she received on October 11, 2017. Petition at 1-2. Petitioner further alleges the
vaccination was administered within the United States, she experienced the residual
effects of her injury for more than six months, and there have been no prior awards or
settlements of a civil action for damages as a result of Petitioner’s condition. Petition at
1-2. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-01346-UNJ Document 33 Filed 07/08/22 Page 2 of 2
On June 6, 2022, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Respondent determined that “[P]etitioner has satisfied the criteria set forth in the Vaccine
Injury Table (“Table”) and the Qualifications and Aids to Interpretation for SIRVA.” Id. at
7. Specifically, Respondent found that Petitioner timely filed her case, that she received
the flu vaccination in the United States, and that she has satisfied the statutory severity
requirement by suffering the residual effects or complications of her injury for more than
six months after vaccine administration. Respondent further agrees that The scope of
damages to be awarded is limited to Petitioner’s SIRVA and its related sequelae. Id. at 8.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-01346-1
Date issued/filed: 2023-07-17
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 06/16/2023) regarding 49 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1346V
UNPUBLISHED
RENEE MAJERUS, Chief Special Master Corcoran
Petitioner, Filed: June 16, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Howard Dale Mishkind, Mishkind Kulwicki Law Co., L.P.A., Cleveland, OH, for
Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On October 8, 2020, Renee Majerus filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (SIRVA) resulting from adverse effects of an influenza (flu) vaccination she
received on October 16, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
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-01346-UNJ Document 53 Filed 07/17/23 Page 2 of 10
Although Respondent conceded entitlement, the parties could not agree to
damages, and so the matter was submitted to a “Motions Day” proceeding. For the
reasons described below, I find that Petitioner is entitled to an award of damages in the
amount of $135,000.00 for her actual pain and suffering.
I. Relevant Procedural History
Nearly two years after this case was initiated, Respondent filed his Rule 4(c)
Report conceding that Petitioner was entitled to compensation. ECF No. 29. A ruling on
entitlement was subsequently issued on June 7, 2022. ECF No. 30. The parties thereafter
attempted to informally resolve damages but were unsuccessful. ECF No. 34, 37.
Accordingly, I issued a scheduling order regarding the briefing of disputed damages
issues. ECF No. 38. The parties filed their respective briefs (ECF Nos. 39 (“Br.”), 41
(“Opp.”), and 42 (“Resp.”)), and agreed to argue their positions at a motions hearing, at
which time I would decide the disputed damages issues. ECF. No. 44. That hearing was
held on May 26, 2023,3 and the case is now ripe for a determination.
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, the Rule 4(c) Report,
and in the parties’ respective pre-hearing briefs.
In summary, at the time of vaccination Ms. Majerus was a 42-year-old with a non-
contributory medical history. Exhibit (Ex.) 17 at 1-2. Petitioner received a flu vaccine in
her right deltoid on October 11, 2017, at her place of employment. Ex. 2 at 1.
On October 27, 2017, Petitioner saw an orthopedist, Dr. Irwin Mandel, for right
shoulder pain for two weeks after receiving a flu shot in her right shoulder. Ex. 3 at 124.
Petitioner was diagnosed with right rotator cuff tendonitis/bursitis after vaccination. Id. at
125. At that time, Petitioner rated her pain at 4/10 with activity. Id. at 124. Four weeks
later, on November 30, 2017, Petitioner returned to Dr. Mandel indicating that her pain
had gotten worse; although she had been taking ibuprofen and doing exercises, the pain
affected her daily activities and her sleep. Ex. 15 at 4. Because of Petitioner’s persistent
symptoms, Dr. Mandel recommend an MRI evaluation. Id.
Ms. Majerus underwent an MRI on December 20, 2017, which revealed “severe
tendinitis involving the distal infraspinatus tendon and associated minimal concealed
linear partial interstitial tear. No full-thickness rotator cuff tear. There is underlying bone
marrow edema at the insertion site. There is mild fluid within the subacromial/ subdeltoid
3 At the end of the hearing held on May 26, 2023, I issued an oral ruling from the bench on damages in
this case. That ruling is set forth fully in the transcript from the hearing. The transcript from the hearing is
fully incorporated into this Decision. ECF No. 47.
2

Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 3 of 10
bursa.” Ex. 13 at 1-2. The next day, Petitioner returned to Dr. Mandel, at which time she
decided to continue with a nonoperative plan, and to start formal physical therapy (“PT”).
Ex. 15 at 9. Dr. Mandel recommended that Petitioner follow-up in two months and
discussed the possibility of arthroscopic surgery and possible rotator cuff repair. Id.
Petitioner received her first steroid injection at this visit. Id.
Ms. Majerus had a PT evaluation on March 2, 2018. Ex. 3 at 120. On evaluation,
Petitioner presented with painful range of motion (ROM), weakness, and pain with
activities of daily living (ADLs) and work activity. Id. It was indicated that Ms. Majerus
would benefit from skilled therapy to improve functional impairments and ultimately
improve functional abilities as listed in the goals. Id. at 121-122. After the PT evaluation,
Petitioner did not immediately begin PT sessions due to difficulty with her workers’
compensation claim. See Ex. 4 at 10, Ex. 17 at 5. Petitioner had an independent medical
evaluation on May 22, 2018, in which the physician concluded that “it is highly unlikely
that the needle was long enough or angled in such a way that it could have come in
contact with her rotator cuff. Dr. Mandel's records speculate that the injection may have
been given in the area of the teres minor, but the potential tear identified on MRI was
localized to the infraspinatus tendon. Consequently, there is no reasonable way to relate
the rotator cuff findings, identified on MRI, to the claimant's flu shot.” Ex. 14 at 3.
On April 30, 2018, Ms. Majerus saw Dr. Todd Hochman at Westpark Occupational
Medicine & Therapy. Ex. 4 at 11. At that visit, Petitioner complained of right shoulder pain,
limited ROM and weakness throughout the right shoulder. Id. Petitioner reported that the
steroid injection had helped, but the pain was recurring. Id. On June 11, 2018, and again
on July 23, 2018, Petitioner returned to Dr. Hochman. Ex. 4 at 8-10. Petitioner expressed
frustration with her workers’ compensation claim, and Dr. Hochman noted that he
disagreed with workers’ compensation physician’s findings. Id. On February 4, 2019, Ms.
Majerus again returned to Dr. Hochman, indicating that her workers’ compensation claim
was now being recognized. Ex. 4 at 6. Petitioner also indicated that she was working at
a lighter duty position of employment with a new employer. Id.
On April 4, 2019, Ms. Majerus presented for a follow-up with Dr. Mandel for right
shoulder pain and to discuss surgery. Ex. 3 at 115-16. Petitioner wanted to proceed with
surgery which was delayed because of her workers’ compensation claim. Id. At this visit
it was noted that Petitioner’s condition had not improved, and Dr. Mandel recommended
shoulder surgery. Id. On September 19, Petitioner returned to Dr. Mandel with pain rated
at 6/10 at worst. Ex. 3 at 112. It was noted that Petitioner’s surgery was canceled because
of workers’ compensation claim appeals. Id. Dr. Mandel stated that with her delay in
treatment, Petitioner had persistent symptoms and exacerbation of symptoms. Id. at 113.
3

Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 4 of 10
On November 5, 2019, Ms. Majerus underwent right arthroscopic shoulder
surgery, subacromial decompression, acromioplasty, debridement partial thickness
rotator cuff tear, and distal clavicle excision. Ex. 12 at 1. On November 14, 2019, at her
first follow-up visit with Dr. Mandel post-surgery, Petitioner indicated that her pain was
occasional, but improving and that she was taking ibuprofen and Percocet for pain with
good relief. Ex. 3 at 109.
On November 18, 2019, Ms. Majerus underwent a post-operative PT evaluation.
Ex. 3 at 106. At that time, she rated her pain at 0/10 at best and 4/10 at worst. Id. From
November 18, 2019, through March 5, 2020, Petitioner attended a total of 31 PT sessions.
See id. at 5-108. Petitioner self-discharged from PT on June 11, 2020, and continued on
a home exercise program thereafter. Id. at 4-6.
Ms. Majerus returned to Dr. Mandel on April 6, 2020, five months status post-
surgery. Ex. 3 at 8. Dr. Mandel noted that Petitioner was doing extremely well, and denied
any problems other than occasional pectoral soreness. Id. Ms. Majerus was noted to be
doing Pilates and planks without difficulty, and she was advised that she could resume
full activities without restrictions and could return to work in the ICU at Main Campus
without restrictions. Id. At that visit, her pain was rated at 0/10. Id. at 9. On May 6, 2020,
Petitioner returned to Dr. Hochman indicating that she was doing a lot better, but still
having weakness throughout the right shoulder and had not improved to baseline. She
was advised to return in six to twelve months. Ex. 4 at 5.
III. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
4

Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 5 of 10
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.4 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, 489-90 (2013). In
Graves, Judge Merrow rejected a special master’s approach of awarding compensation
for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap.
Judge Merrow 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.” Graves, 109 Fed. Cl. at 590. Instead,
Judge Merrow 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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Petitioner’s awareness of her injury is not disputed, leaving only its
severity and duration to be considered. In determining appropriate compensation for
Petitioner’s pain and suffering, I have carefully reviewed and considered the complete
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
5

Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 6 of 10
record in this case. I have also considered prior awards for pain and suffering in both SPU
and non-SPU SIRVA cases, and relied upon my experience adjudicating such cases.5 My
determination, however, is ultimately based upon the specific circumstances of this case.
Petitioner argues that “[t]he amount of compensation that should be awarded
under the terms of the Vaccine Act[,] based upon the specific facts of the instant case
and other well-reasoned and comparable fact patterns[,] warrants an award for pain and
suffering of $170,000.00 . . . .” Br. at 2. Petitioner looked to comparative guidance for
similar SIRVA cases where surgery was involved, including Reed, Hooper, Lang, Nute,
and Kelley awarding damages between $120,000.00 and $195,000.00, respectively.6 Id.
at 12-16.
In particular, Petitioner points to Reed (in which $165,000.00 was awarded) as
supportive of the requested award in this case. Br. at 12. But she generally asserts that
this “case mandates an award above the median proffered SIRVA award ranges.” Id. at
11. The record reveals that she “suffered for 2+ years before she could have surgery and
the delay in performing the surgery was not due to any non-compliance on her behalf.
She had to battle a worker’s compensation system to get her surgery approved and in the
interim she tried to work as an ICU nurse. When it became apparent that her injury was
negatively impacting her career, she resigned and took a non-clinical position. Even after
her surgery, she had 31 physical therapy sessions and while she made a ‘good’ recovery,
her limitations are well documented herein and warrant an award greater than
$160,000.00 for her past pain and suffering.” Id. at 12. And she has continued to
experience pain and reduced ROM that could not be alleviated with further treatment. Id.
Petitioner asserts that her injury created unique challenges in her day-to-day life as a
working mother of two children. Id. at 13.
In response, Respondent recommends a pain and suffering award $95,000.00.
Opp. at 2,8. Respondent contends that there are important factual differences between
5 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a
brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of
Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y
of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood
v. Sec’y of Health & Hum. Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020).
6 Reed v. Sec’y of HHS, No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding
$160,000.00 for past pain and suffering); Hooper v. Sec'y of HHS, No. 17-12V, 2019 WL 1561519 (Fed. Cl.
Spec. Mstr. June 27, 2019) (awarding $185,000.00 for past pain and suffering); Lang v. Sec’y of HHS, No.
17-995V, 2018 WL 3681275 (Fed. Cl. Spec. Mstr. July 25, 2018) (awarding $195,000.00 for past pain and
suffering); Nute v. Sec'y of HHS, No. 18-140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019)
(awarding $125,000.00 for past pain and suffering); Kelley v. Sec'y of HHS, No. 18-140V, 2019 WL 6125008
(Fed. Cl. Spec. Mstr. Sept. 6, 2019) (awarding $120,000.00 for past pain and suffering).
6

Case 1:20-vv-01346-UNJ Document 53 Filed 07/17/23 Page 7 of 10
the instant case and Hooper, Lang, and Reed that make a much lower pain and suffering
award appropriate in this case. Id. at 14.
In Hooper, for example, one of the petitioner’s physicians noted that his left
shoulder, pre-surgery, was “‘nearly useless,’” and another of the petitioner’s physicians
evaluated him, post-surgery, as having lost 50% of his left arm function. Opp. at 14. But
in this case, none of Ms. Majerus’s physicians provided a prognosis of her SIRVA that
approached the severity of those provided by the physicians in Hooper, and Ms. Majerus’s
most recent medical records indicated that her right shoulder pain substantially improved
after her November 5, 2019 surgery. Id. Respondent also distinguishes this case from
Lang, as the Lang petitioner underwent two surgeries not one. Id. Additionally, unlike the
petitioners in Lang and Reed, Respondent contends that Ms. Majerus was not referred to
a pain management specialist, and she was not regularly taking narcotic or opioid
medication for her shoulder pain. Id. Respondent further asserts that Petitioner is not
making claims for past lost wages or future lost wages in this case, and because of the
speculative, uncorroborated statements contained in Petitioner’s supplemental affidavit
regarding her alleged work limitations, those statements should not be considered when
determining Petitioner’s award for pain and suffering damages. Id. at 15.
Instead, cases like Shelton and Hunt are more analogous to this case, and
because of that, a lower pain and suffering award is appropriate.7 Like the Shelton
petitioner, Ms. Majerus had gaps in her receipt of medical treatment of more than six
months (July 23, 2018, to February 4, 2019) and more than four months (April 26, 2019,
to September 19, 2019). Opp. at 17. The fact that Ms. Majerus could cope with her right
shoulder pain between gaps in treatment counsels in favor of a lower pain and suffering
award. Id. Finally, Respondent asserts, unlike the Shelton petitioner (who received three
steroid injections) and the Hunt petitioner (who received at least four steroid injections),
Ms. Majerus received only one steroid injection. Id. at 16-18. Additionally, unlike the Hunt
petitioner, who was still reporting significant shoulder pain six months after her surgery,
Ms. Majerus’s right shoulder had improved “quite a bit,” although it was not yet back to
baseline, six months after her surgery. Id. at 18.
Pursuant to my oral ruling on May 26, 2023 (which is fully adopted herein), I find
that $135,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s actual pain and suffering.
As a general matter, an award of at least $100,000.00 is not automatically
7 Shelton v. Sec’y of HHS, No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021) (awarding
$97,500.00 for past pain and suffering); Hunt v. Sec'y of HHS, No. 19-1003V, 2022 WL 2826662 (Fed. Cl.
Spec. Mstr. June 16, 2022) (awarding $95,000.00 for past pain and suffering);
7

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appropriate simply because arthroscopic surgery was involved. As noted by Respondent,
in both Shelton and Hunt, surgery SIRVA cases, I awarded less than that amount.
Shelton, 2021 WL 2550093, at *1, 9; Hunt, 2022 WL 2826662, at *1, 10. However, the
fact that a petitioner must undergo arthroscopic surgery to alleviate her symptoms
inherently suggests a greater level of pain and suffering, and/or more intrusive treatment.
In addition, Program goals are generally served by creation of a few foundational rubrics
that can be considered when faced with pain and suffering disputes – a common
disagreement that too often obstructs the speedy resolution of SIRVA cases. Thus, it is
not unreasonable to apply a baseline six-figure “yardstick” to SIRVA pain and suffering
demands in cases involving surgery (although one that can be rebutted) – and for those
reasons, the best comparables under the circumstances are cases involving surgery.
Here, the comparable cases offered are not all of equal utility. Although a surgical
case, Shelton involves a unique set of facts and circumstances, including an initial delay
of five months before any complaint of pain and an additional three-month delay before
further treatment was pursued. Shelton, 2021 WL 2550093, at *7. Hunt was also a SIRVA
case featuring surgery which resulted in pain and suffering close to, but not in excess of
$100,000.00. But that petitioner’s SIRVA was described as mild to moderate for the initial
six weeks after vaccination, and mild thereafter. Hunt, 2022 WL 2826662, at *9. Ms. Hunt
had surgery approximately six months post-vaccination, was noted to have “benefited
from significant reduction in her pain following each cortisone injection . . . resulting in
periods of little-to-no pain during the course of her injury . . . .” and returned to baseline
approximately fourteen months after vaccination. Id. at *8-9. The Hunt petitioner also
responded very well to the corticosteroid injections, had periods of little-to-no pain, and
her mostly mild treatment course only lasted about fourteen months. Thus, Hunt is also
unique and distinguishable.
Conversely, at the motions hearing, counsel for Petitioner acknowledged that
Petitioner’s request for $170,000.00 was high. Moreover, most of the cases cited by
Petitioner involved petitioners who required multiple surgeries or had substantiated
permanent shoulder disabilities; thus, these cases likewise provide little utility or guidance
in this case. See cases cited supra note 6.
The cases most analogous to the circumstances herein, are Rafferty, Wilson,
Blanco and Nute (which was cited by Petitioner).8 The Rafferty petitioner had a minor
8 Rafferty v. Sec’y of HHS, No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec. Mstr. May 21, 2020) (awarding
$127,500.00 in pain and suffering); Wilson v. Sec’y of HHS, No. 19-0035V, 2021 WL 1530731 (Fed. Cl.
Spec. Mstr. Mar. 18, 2021) (awarding $130,000.00 in pain and suffering); Blanco v. Sec’y of HHS, No. 18-
1361V, 2020 WL 4523473 (Fed. Cl. Spec. Mstr. July 6, 2020) (awarding $135,000.00 in pain and suffering).
Nute, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for past pain and
suffering);
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delay in treatment, 30 total PT sessions, arthroscopic surgery with significant
improvement within two months, and an overall course was approximately 11 months.
Ms. Rafferty was also mother of twin three-year-old sons, one of whom had autism, and
was unable to care for her sons. Rafferty, 2020 WL 3495956, at *15-16. In Wilson, the
petitioner sought treatment within one month of vaccination, 18 PT sessions, an MRI, and
arthroscopic surgery, from which she made a very good recovery. Wilson, 2021 WL
1530731, at *3-5 Ms. Wilson’s symptoms were largely resolved after a year, with
significant gaps in treatment thereafter. Here, Ms. Majerus sought treatment very shortly
after vaccination (two weeks), and the duration of her treatment was more than twice as
long as the petitioners in Rafferty and Wilson.
In Blanco, the petitioner sought treatment within one month of vaccination, her
treatment course was over two years including more than 40 PT sessions, four steroid
injections, three MRI scans, massage therapy, acupuncture, and arthroscopic surgery,
after which she substantially recovered. Blanco, 2020 WL 4523473, at *2. That petitioner
required more extensive treatment than Ms. Majerus, although the temporal duration of
Ms. Majerus’s course was longer, with a more significant impact on her family and
employment. In Nute, the petitioner (also a nurse like Ms. Majerus) had three painful
cortisone injections, arthroscopic surgery, more than 30 PT sessions, and her overall
course was approximately 11 months. Nute, 2019 WL 6125008, *at 12. Ms. Nute’s
employment was impacted similar to Ms. Majerus, but this case warrants a higher award,
again due to the lengthy duration of Ms. Majerus’s treatment course. While none of these
cases are completely parallel, the degree of factual similarity between these cases
suggests an award of pain and suffering in the same range.
Overall, this case is a moderately-severe SIRVA case involving surgery.
Significantly, Petitioner’s overall course lasted two and a half years. Respondent noted
two gaps in Petitioner’s receipt of medical treatment, totaling approximately ten months,
and argued that they counsel in favor of a lower award. While treatment gaps often bear
on severity of injury, in this case it is well-documented that Petitioner’s gaps were
attributable to her workers’ compensation claim and appeals, which prohibited her from
receiving treatment. Thus, the contemporaneous medical records indicate that Ms.
Majerus would have received physical therapy and possibly surgery more than a year
and half prior to her actually having surgery absent litigation over the claim. See Ex. 3 at
112, 120; Ex. 4 at 11; Ex. 17 at 5.
Moreover, as Dr. Mandel stated, Petitioner’s delay in treatment actually resulted in
her having persistent symptoms and exacerbation of symptoms. See Ex. 3 at 113. Thus,
Petitioner’s gaps in treatment related to the workers’ compensation claim delays
involuntarily and unnecessarily increased and prolonged Petitioner’s suffering. Ms.
Majerus would not have had to pursue a workers’ compensation claim but for her SIRVA,
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and her award should not be reduced for the delay, since the record establishes that the
SIRVA was the proximate cause of that delay.
My award also takes into account the impact Petitioner’s SIRVA had on her
employment. Although no lost wages claim has been made, Petitioner has substantiated
the impact her SIRVA has had on her life both personally with her family, and
professionally in terms of work limitations and changing jobs. But I do not find that
Petitioner’s stated inability to work in the ICU context is corroborated sufficiently by
independent evidence, such as termination, or no longer being allowed to work in the
ICU, to give it substantial weight in the amount I am awarding.
Conclusion
For all of the reasons discussed above, and based on consideration of the record
as a whole, I find that $135,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.9
Accordingly, I award Petitioner a lump sum payment of $135,000.00 in the form
of a check payable to Petitioner. This amount represents compensation for all damages
that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this Decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 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)).
10 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