VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01350
Package ID: USCOURTS-cofc-1_20-vv-01350
Petitioner: Gregory Monson
Filed: 2023-02-08
Decided: 2023-03-15
Vaccine: influenza
Vaccination date: 2018-09-27
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 155000

AI-assisted case summary:
Gregory Monson filed a petition for compensation under the National Vaccine Injury Compensation Program on February 8, 2023, alleging that he suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccine administered on September 27, 2018. The case was assigned to the Special Processing Unit. After attempts at informal resolution, the parties reached an impasse, leading to briefing on entitlement and damages. Petitioner requested $185,000 for past pain and suffering and future damages, while Respondent recommended denying entitlement or awarding a lesser amount. Petitioner's medical records indicated shoulder pain starting around the time of vaccination, though it was not formally documented until nearly three months later. The court found that despite the delay in reporting and treatment, the evidence preponderantly supported that the onset of pain occurred within 48 hours of vaccination, satisfying the Table criteria for SIRVA. The court awarded Gregory Monson $155,000.00 for actual pain and suffering, noting his injury required significant treatment over nearly four years, including surgery, but declining to award future damages due to lack of objective evidence of permanent impairment and his subsequent recovery. The award represents compensation for all damages available under Section 15(a) of the Vaccine Act.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01350-0
Date issued/filed: 2023-03-15
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 02/08/2023) regarding 47 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:20-vv-01350-UNJ Document 55 Filed 03/15/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1350V
UNPUBLISHED
GREGORY MONSON, Chief Special Master Corcoran
Petitioner, Filed: February 8, 2023
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)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On October 9, 2020, Gregory Monson 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 a result of an influenza (“flu”) vaccine administered to him on
September 27, 2018. Petition, ECF No. 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”).
For the reasons described below, and after holding a brief hearing on entitlement
and damages in this matter, I find that Petitioner is entitled compensation, and I award
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-01350-UNJ Document 55 Filed 03/15/23 Page 2 of 12
damages in the total amount of $155,000.00, representing Petitioner’s actual pain and
suffering.
I. Relevant Procedural History
As noted above, this case was initiated in October 2020. On February 22, 2022,
after attempting to resolve this case informally, Petitioner filed a status report stating that
the parties had reached an impasse. ECF No. 32. I thereafter set deadlines for the filing
of briefs addressing both Petitioner’s entitlement to compensation and an appropriate
award of compensation (if Petitioner established entitlement). ECF Nos. 33.
On March 21, 2022, Petitioner filed a Motion for Ruling on Record and Brief in
support of Damages, arguing that he had established entitlement to compensation for his
SIRVA injury, and requesting an award of $130,000.00 for past pain and suffering and
$1,500.00 per year for life for future pain and suffering. ECF No. 35.
On April 25, 2022, Respondent filed his Rule 4(c) Report and Response to
Petitioner’s Motion for Ruling on Record recommending that entitlement to compensation
be denied under the terms of the Vaccine Act. ECF No. 38. Respondent further argued
that in the event entitlement to compensation was found, Petitioner should be awarded
the lesser amount of $65,000.00 for actual pain and suffering, and no compensation for
future pain and suffering, which Respondent argued was not substantiated. Id.
Petitioner filed a Reply on May 5, 2022. ECF No. 39. In his Reply brief, Petitioner
asserted that he was scheduled to undergo surgery for his SIRVA and, in consideration
thereof, increased his request for past pain and suffering to $185,000.00. Id. Petitioner
filed updated medical records, including his surgical records, between May and
September 2022. ECF Nos. 40-45.
On October 18, 2022, I convened a status conference to inquire whether the filing
of any further evidence was necessary before this case was submitted for my resolution,
however, the parties were satisfied with the record as it stood. ECF No. 46. Additionally,
I inquired whether Respondent would like to supplement his briefing in light of Petitioner’s
surgical procedure, updated medical records, and increased demand, but he declined to
do so. Id. I urged the parties to informally settle this case, but indicated that I would
proceed with scheduling this case for an expedited “Motions’ Day” hearing on January
27, 2023. The parties agreed. Id. The Motions’ Day hearing took place on January 27,
2023. Minute Entry dated January 27, 2023.3 I orally ruled on Petitioner’s entitlement to
3 Jimmy Zgheib appeared on behalf of Petitioner, and Amanda Pasciuto appeared on behalf of Respondent.
The transcript of the January 27, 2023 Hearing in this case was not filed as of the date of this Decision, but
my oral ruling is incorporated by reference herein.
2

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compensation, and after hearing argument made an oral damages determination as well.
This Decision memorializes those findings/determinations.
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)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 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
4 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 § 11(c)(1)(A)(B)(D)(E).
3

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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
(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
The only Table requirement for SIRVA that Respondent contests is whether
Petitioner’s first post-vaccination symptom or manifestation of onset (specifically pain)
occurred within 48 hours, as set forth in the Vaccine Injury Table and Qualifications and
Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(a)(XIV)(B) (seasonal
influenza vaccines); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI);
4

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ECF No. 38 at 15-18. Based upon a review of the entire record, and for the reasons set
forth below, I find that it more likely than not was.
Petitioner received a flu vaccine in his right deltoid on September 27, 2018. Ex. 18
at 195. On October 1, 2018, Petitioner was seen by urologist Patrick Fowler, MD, and
diagnosed with prostate cancer. Ex. 14 at 15-18. On October 9, 2018, Petitioner was seen
by his primary care provider, William Harden, MD, regarding his diagnosis of prostate
cancer and his peripheral vascular disease. Ex. 4 at 13. Between October 24 and
November 1, 2018, Petitioner was seen by multiple providers at the Cancer Treatment
Centers of America, where he treated for his prostate cancer. See, e.g., Ex. 15. The above
records do not contain any indication that Petitioner was suffering shoulder pain following
his vaccination.
On December 12, 2018 (now nearly three months after the vaccination), Petitioner
was seen by Dr. Harden with a chief complaint of “[s]houlder pain after flu shot/discuss
cancer treatment.” Ex. 4 at 12. It was noted that Petitioner “has right shoulder pain 2
months after having his flu shot. His range of motion is good, but the shoulder hurts.” Id.
Dr. Harden’s assessment included: “SIRVA.” Id.
On January 31, 2019, Petitioner completed a worker’s compensation form –
officially reporting “right shoulder pain from receiving shot.” Ex. 18 at 330-36. The forms
document the “Date of Accident” as “9-27-18,” and a description of the accident indicates
“Flu Shot On 9-27-18 Too High in Shoulder Sore Comes and Goes.” Ex. 18 at 333. In
response to the inquiry “when were you first aware of the injury or illness?” Petitioner
wrote, “felt it same day but thought it would go away.” Id. at 334. Petitioner also reported
that he discussed his injury with his supervisor, Rick, three weeks after it happened, and
his supervisor indicated “he had same” problem. Id. Petitioner identified his right shoulder
as the part of body affected by the incident. Id. at 335. Petitioner’s supervisor, Rick King,
also completed a form indicating the incident was reported to him in September 2018. Id.
at 337. He noted the report was “late” because “took a while for pain assessment” and
described the incident as a “flu shot given too high.” Id. at 337-38.
On February 1, 2019, Petitioner was seen by Laura Carr, PA, at the Lassen
Medical Clinic. Ex. 7 at 18. Ms. Carr provides the following history in her record: “DOI:
09/27/2018 flu shot. Since receiving [f]lu shot in upper rt arm/shoulder, pt reports that the
same area has been very painful with a severe burning sensation.” Ex. 7 at 19. Petitioner’s
subsequent treatment records continue to describe the onset of his shoulder pain as
occurring close-in-time to his vaccination.
Respondent observes, correctly, that Petitioner did not report his shoulder injury
for 77 days after his vaccination – although when he did so he reported shoulder pain
5

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following his flu shot for two months. ECF No. 38 at 16. This is despite the fact that
Petitioner attended intervening visits with his primary care physician (on October 9, 2018)
and the various medical providers that he saw at Cancer Treatment Centers of America
(“CTCA”) between October 24 and November 1, 2018. Id.at 16-17. In particular,
Respondent points out that three of Petitioner’s treaters at CTCA conducted normal upper
extremity examinations of Petitioner during this time period, and that Petitioner reported
abdominal pain, a condition unrelated to his cancer, while treating at CTCA. ECF No. 38
at 17 (citing Ex. 15 at 21, 24-25, 32).
I acknowledge that Petitioner’s first relevant medical records post-vaccination fail
to mention his shoulder pain, and that he did see treaters in the lengthy gap between
vaccination and the first record of shoulder pain. But those visits were related to the
diagnosis and treatment of a very serious medical condition – pancreatic cancer. And
while Petitioner may have reported incidental symptoms, and undergone physical
examinations, the focus of those visits was Petitioner’s cancer, making it unsurprising that
he did not raise concerns in regard to his shoulder pain, despite the opportunity to do so.
Additionally, it is not unusual in my experience adjudicating SIRVA claims that
petitioners delay treatment, hoping their shoulder pain and/or soreness will abate. And
once Petitioner did report his shoulder pain to his treaters, he consistently associated the
onset of his pain with his flu vaccination. In particular, Petitioner’s worker’s compensation
forms provide a very clear and detailed description of the onset of Petitioner’s shoulder
pain on September 27, 2018. Accordingly, I find that the medical records cited above (Ex.
4 at 12, Ex. 7 at 19, Ex. 18 at 330-38) as supported by Petitioner’s sworn affidavit, (Ex. 3)
preponderately support the conclusion that the onset of his shoulder pain likely began
within 48 hours of his September 27, 2018 flu vaccination. My finding herein is consistent
with the intent of the Act -- that awards are to be “made to vaccine-injured persons quickly,
easily, and with certainty and generosity.’” H.R. Rep. No. 99–908, 3, 99th Cong., 2d Sess.
18, reprinted in 1986 U.S.C.C.A.N. 6344.
I credit Respondent’s arguments about the vagueness of certain records pertaining
to onset in this case, as well as the omission of Petitioner’s shoulder pain in certain
records, but note that the Program’s evidentiary standards are nevertheless satisfied
under the circumstances. As I have previously observed, “the Vaccine Act clearly does
not require that symptoms be recorded within a specific timeframe to be preponderantly
established. Rather, it requires only that onset occurs in the relevant timeframe.” Niemi v.
Sec'y of Health & Hum. Servs., No. 19-1535V, 2021 WL 4146940, at *4 (Fed. Cl. Aug.
10, 2021) (citing Section 13) (emphasis in original). Neither does the Act require that the
medical records document an exact date that the onset of a petitioner’s shoulder pain
began. A special master may thus find that the first symptom or manifestation of onset of
an injury occurred “within the time period described in the Vaccine Injury Table even
6

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though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.” Section 13(b)(2).
C. Other Requirements for Entitlement
Based on the above, I find that Petitioner has satisfied all requirements for a Table
SIRVA and is entitled to a presumption of causation. However, even if a petitioner has
satisfied the requirements of a Table injury or established causation-in-fact, he or she
must also provide preponderant evidence of the additional requirements of Section 11(c),
i.e., receipt of a covered vaccine, residual effects of injury lasting six months, etc. See
generally § 11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed in this
claim. I therefore find that Petitioner is entitled to compensation in this case.
D. Damages
1. The Parties’ Arguments
Citing three prior damages determinations, with awards ranging from $185,000.00
to $160,000.00, Petitioner requests $185,000.00 in actual pain and suffering. ECF No. 39
at 6-7.5 He asserts that his course of treatment and the duration of his injury
(approximately four years) is comparable to the aforementioned surgical SIRVA cases.
Petitioner further argues that he should be awarded future pain and suffering damages of
$1,500.00 a year for life, based on the finding of permanent disability in his Qualified
Medical Examination, and the overall nature of his injury. ECF No. 35 at 21-23.
Respondent, by contrast, proposes the lesser award of $65,000.00 for Petitioner’s
pain and suffering – citing three non-surgical cases.6 ECF No. 39 at 19. Respondent
declined to raise his recommendation following Petitioner’s surgery, but at oral argument
offered Shelton v. Sec'y of Health & Hum. Servs., No. 19-279V, 2021 WL 2550093, at *7
(Fed. Cl. May 21, 2021)(awarding $97,500.00 in past pain and suffering where Petitioner
delayed seeking treatment for her injury for five months following her vaccination) as the
surgical case most comparable to the instant claim (and thus in effect raised his proposed
award). Petitioner’s delay in seeking treatment, co-morbidities, and reports of mild to
5 Petitioner cited the following cases: Hooper v. Sec’y of Health & Hum. Servs., No. 17-12V, 2019 WL
1561519 (Fed. Cl. Mar. 20, 2019) (awarding $185,000.00 for past pain and suffering); S.C. v. Sec’y of
Health & Hum. Servs., No. 19-341V, 2021 WL 2949763 (Fed. Cl. June 14, 2021) (awarding $160,000.00
for past pain and suffering); and Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925
(Fed. Cl. Feb. 1, 2019) (awarding $160,000.00 for past pain and suffering)
6 Respondent cites the following cases: Lucarelli v. Sec’y of Health & Hum. Servs., No. 16-1712V, 2019
WL 5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (awarding $80,000.00 for past pain and suffering);
Dirksen v. Sec’y of Health & Hum. Servs, 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018)
(awarding $85,000.00 for past pain and suffering); and Knauss Sec’y of Health & Hum. Servs., No. 16-
1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000.00).
7

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moderate pain levels during the course of his treatment warranted an award less than
$100,000.00. Respondent further argued Petitioner should not be awarded future pain
and suffering, as there was no objective evidence that his injury was permanent. ECF No.
38 at 24-26.
2. Legal Standards for Damages 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. July 6, 2022).
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.7
3. 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 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, affidavits, filings, and all assertions made by
the parties in written documents and at the expedited hearing held on January 27, 2023.
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.
One factor predominantly relevant to my determination is Petitioner’s treatment
delay. Petitioner alleges that his pain was immediately severe, but he did not obtain
treatment until December 12, 2018, approximately two and a half months after his
September 27, 2018 vaccination. While I find that such a delay is not a reason to deny
7 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)).
8

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entitlement on the basis of Respondent’s onset argument, the delay supports the
conclusion that Petitioner’s shoulder pain was not so severe as to necessitate urgent
treatment immediately following his vaccination.8
Subsequently, Petitioner suffered a relatively moderate injury for nearly four years.
While Petitioner reported pain levels fluctuated during the course of his treatment9, he
underwent significant treatment for his injury for a relatively long period of time, including
42 physical therapy sessions,10 four steroid injections,11and two MRI scans.12
Over three and a half years subsequent to his vaccination, Petitioner’s treatment
culminated in shoulder surgery. On May 10, 2022, Petitioner underwent the following five
8 I do take into consideration that Petitioner was diagnosed and receiving treatment for cancer immediately
following his vaccination, but I find it more likely than not that if his shoulder pain were severe he would
have nevertheless reported it to his providers and sought treatment for the pain.
9 Petitioner’s pain levels were higher at the end of his treatment, than compared to earlier in the course of
his injury. See, e.g., Ex. 8 at 2 (On March 15, 2019, Petitioner reported pain of 2-5/10); Ex. 8 at 56 (On
March 6, 2020, Petitioner reported pain 0-3/10); Ex. 18 at 3 (On March 5, 2021, Petitioner reported pain
of 2/10); Ex. 21 at 6 (On February 2, 2022, Petitioner reported pain of 8/10).
10 Petitioner engaged 24 physical therapy sessions prior to his surgery, and 18 sessions subsequent to his
surgery. Ex. 8; Ex. 30 at 23.
11 Petitioner received four cortisone injections, including one contemporaneous with his surgery, on the
following dates: June 16, 2020 (Ex. 7 at 75); December 30, 2020 (Ex. 16 at 4-5); February 2, 2022 (Ex. 21
at 7); and May 10, 2022 (Ex. 26 at 5).
12 Petitioner’s first MRI scan occurred on August 14, 2019. The MRI Impression indicated:
1. There is circumferential labral tearing which could predispose to multidirectional micro-
instability. 2. There is no definite evidence for a full-thickness rotator cuff tear. 3. There is
a mild partial-thickness articular surface fiber tear involving the distal posterior
supraspinatus versus distal anterior infraspinatus tendon. 4. There is mild-to-moderate
cartilage loss within the glenohumeral joint space, consistent with degenerative joint
disease. 5. There are mild changes of degenerative joint disease within the AC joint.
Ex. 6 at 5. Petitioner’s second MRI scan occurred on January 22, 2021. The MRI Impression indicated:
1. There is persistent high signal within the anterior superior glenoid labrum. A labral tear
was documented on the previous MR arthrogram dated 08/14/2019. Consider repeat MR
arthrography for improved evaluation of the glenoid labrum if clinically necessary. 2.
Acromioclavicular arthrosis predisposes to the clinical syndrome of subacromial
impingement and appears stable to the previous study. 3. The rotator cuff and long head
of the biceps tendon appear intact. The documented partial thickness articular surface tear
of the distal supraspinatus tendon is not visible in the absence of intra-articular gadolinium.
4. A normal volume of glenohumeral joint fluid is present.
Ex. 17 at 4.
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separate procedures under general anesthesia: “1. Right rotator cuff and labral
debridement. 2. Right arthroscopic partial distal clavicle excision. 3. Right arthroscopic
acromioplasty. 4 Right arthroscopic lysis of adhesions. 5. Right shoulder cortisone
injection.” Ex. 26 at 5. Petitioner’s post-operative diagnoses included: “1. Right rotator
cuff tear. 2. Right shoulder impingement. 3. Right acromioclavicular degenerative joint
disease contributing to impingement. 4. Right mild glenohumeral degenerative joint
disease with labral tear. 5. Right glenohumeral adhesions.” Id. Petitioner’s surgeon, Riico
Dotson, MD, noted, among other findings, in his post-surgery description that “significant
subacromial bursitis” was present. Id. at 6.
However, post-surgery, Petitioner appears to have made a fairly good recovery.
On August 15, 2022, nearly four years after his vaccination, Petitioner underwent his 18th
post-surgery physical therapy session. Petitioner observed at that time that he was
“feeling stronger” and “noticed decreased difficulty when performing [activities of daily
living]”. Ex. 30 at 23. Petitioner’s physical therapist observed that he was “making good
progress on clinical goals, demonstrating improved active [range of motion] to [within
normal limits] and tolerance to repetitive use below shoulder comfortably.” Id. No
subsequent records have been filed.
I also note that it appears Petitioner’s pain was not entirely due to his SIRVA.
Petitioner’s March 5, 2021 Qualified Medical Examination (“QME”) attributed 80 percent
of Petitioner’s disability to his vaccine injury and 20 percent to pre-existing degenerative
issues. Ex. 18 at 21. However, I acknowledge that the QME found that Petitioner’s SIRVA
aggravated these previously asymptomatic issues. Id. Additionally, Petitioner was
diagnosed in June 2021 with rheumatoid arthritis (in the joints of both hands), thus some
of the pain and suffering experienced my Petitioner during the last year of his injury was
attributable to that diagnosis. Ex. 19 at 13.
Petitioner argues his March 5, 2021 QME, and record as a whole, supports an
award of future pain and suffering. But the QME found that he had 0% whole person
impairment based on a strict interpretation of the American Medical Association Guides
to the Evaluation of Permanent Impairment, Fifth Edition. Ex. 18 at 20. At most, and
because he reported at that time that his pain interfered with his activities of daily living,
he was assigned a 1% whole person impairment rating utilizing a different standard
relying on the (subjective) basis of pain. Id. The QME is thus fairly faint support for a future
pain and suffering award.
In my experience adjudicating SIRVA claims, most petitioners report some residual
shoulder pain which interferes with their activities of daily living after they have largely
recovered from their injury, so that fact alone does not typically support a future damages
component, absent other factors. The Program thus looks for objective proof of a
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medically-documented significant loss of function, or ongoing medical needs that are not
likely to desist. See, e.g., Hooper v. Sec’y of Health & Human Servs., No. 17-0012V, 2019
WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $1,500.00 a year for life
representing future pain and suffering where the petitioner was found to have lost 50% of
his left arm function). Additionally, subsequent to his QME Petitioner underwent a
successful shoulder surgery, and another round of physical therapy, and sought no further
care after August 2022, despite not being formally discharged from physical therapy. And
the only mention of pain at his August 15, 2022 (last) physical therapy appointment is
contained in a “history,” noting Petitioner’s rheumatoid arthritis (unrelated to his SIRVA)
was “painful intermittently” and that he was “using medication and [would] undergo
infusion treatment.” Id.
In making my determination, I have fully considered Petitioner’s affidavit. Ex. 3.
However, I do not find any unique personal factors that would independently support a
larger award (such as a pregnancy at the time of injury). See Desrosiers v. Sec’y of Health
& Hum. Servs., No. 16-0224V, 2017 WL 5507804, (Fed. Cl. Sept. 19, 2017).
Regarding comparable cases that could provide guidance, I find that two of the
cases offered by Petitioner, Reed v. Sec’y of Health & Human Servs., No. 16-1670V,
2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for past
pain and suffering) and S.C. v. Sec’y of Health & Hum. Servs., No. 19-341V, 2021 WL
2949763 (Fed. Cl. June 14, 2021) ($160,000.00 for past pain and suffering cases), are
reasonably useful.13 While there are distinguishing factors between the instant case and
those cases, Reed and S.C. represent appropriate surgical cases comparable to
Petitioner’s circumstances. But because the experience of those petitioners was a little
more severe, I have slightly reduced the award herein.14 Otherwise, Petitioner’s
comparables were superior to Respondents – especially since most did not involve
surgery, a factor I have previously noted supports a higher award.
13 The third case cited by Petitioner, Hooper v. Sec’y of Health & Human Servs., No. 17-0012V, 2019 WL
1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $185,000.00 in past pain and suffering and
$1,500.00 a year for life in future pain and suffering) involves a more severe injury than that suffered by
Petitioner herein.
14 I observe that the Reed petitioner remained under the care of pain management specialists and continued
to require the pain medication Tramadol to treat her injury. Reed, 2019 WL at *9,11, 16. (Notwithstanding
these facts, the Reed petitioner was also not found to be entitled to compensation for future pain and
suffering.) In this case, no evidence exists that Petitioner remains under medical care for his injury.
Additionally, the Reed petitioner’s physical ability to care for her young child with an ADHD autism spectrum
disorder was negatively impacted by her injury – a factor not present in the instant case. Id. at *11, 16.
Finally, I observe that the SC petitioner underwent 95 physical therapy sessions, considerably more than
the Petitioner herein. S.C., 2020 WL at *5.
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Accordingly, I find that $155,000.00 represents a fair and appropriate amount
of compensation for Petitioner’s past or actual pain and suffering, and I decline to
award future pain and suffering.
Conclusion
I award Petitioner a lump sum payment of $155,000.00, representing actual
pain and suffering, 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.15
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 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.
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