VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01488
Package ID: USCOURTS-cofc-1_20-vv-01488
Petitioner: John Michael Dulaney
Filed: 2020-10-28
Decided: 2023-09-05
Vaccine: Tdap
Vaccination date: 2018-08-13
Condition: left shoulder injuries related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 120433

AI-assisted case summary:
John Michael Dulaney filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a left shoulder injury related to vaccine administration (SIRVA) as a result of a tetanus, diphtheria, pertussis (Tdap) vaccine received on August 13, 2018. The respondent conceded that Mr. Dulaney's injury met the criteria for SIRVA as defined by the Vaccine Injury Table, and entitlement to compensation was granted. The case then proceeded to determine damages, as the parties could not agree on an appropriate sum. Mr. Dulaney's medical records detail a lengthy treatment course for his left shoulder pain, which began within 48 hours of the vaccination. His condition involved pain, limited range of motion, and ultimately required surgery, including rotator cuff repair, anterior labral repair, subacromial decompression and bursectomy, and biceps tenodesis. He underwent multiple steroid injections and extensive physical therapy over a period of approximately 19 months. The parties presented differing arguments regarding the severity and duration of his injury, with the respondent emphasizing treatment delays. Ultimately, the court awarded Mr. Dulaney $120,000.00 for pain and suffering and $432.68 for unreimbursable expenses, for a total award of $120,432.68.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01488-0
Date issued/filed: 2022-07-25
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/24/2022) regarding 32 Findings of Fact & Conclusions of Law concerning onset. Signed by Chief Special Master Brian H. Corcoran. (ke) Service on parties made.
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Case 1:20-vv-01488-UNJ Document 33 Filed 07/25/22 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1488V
UNPUBLISHED
JOHN MICHAEL DULANEY, Chief Special Master Corcoran
Petitioner, Filed: June 24, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Tetanus
HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On October 28, 2020, John Michael Dulaney filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). Petitioner alleges that he suffered a left shoulder injury related to
vaccine administration (“SIRVA”) resulting from the tetanus, diphtheria, pertussis (“Tdap”)
vaccine he received on August 13, 2018. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
1 Because this unpublished Fact 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 Fact 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-01488-UNJ Document 33 Filed 07/25/22 Page 2 of 6
For the reasons discussed below, I find the onset of Petitioner’s pain began within
24 hours of vaccination, consistent with the claim’s Table element requirement.
I. Relevant Procedural History
Petitioner filed Exhibits 1-8, containing medical records and an affidavit, along with
the petition on October 28, 2020 (ECF No. 1). Petitioner filed additional records as
Exhibits 9 and 10 on March 30, 2021 (ECF No. 15). On December 6, 2021, Respondent
filed a status report stating that he had completed his review of the records, and was
amenable to informal resolution of the claim (ECF No. 26). The parties commenced
negotiations, but could not come to agreement – resulting in Respondent’s filing of a Rule
4(c) Report contesting compensation (ECF No. 31).
On June 9, 2022, a telephonic status conference was held discuss how to proceed
in light of the Rule 4(c) Report. During the call, Respondent’s counsel confirmed that
Respondent’s only objection was onset. The parties agreed that a fact ruling would be
helpful, and that the issue of onset was ripe for resolution without briefing.
II. Issue
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (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(c)(10)(ii) (required onset for pain listed in the QAI).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
2

Case 1:20-vv-01488-UNJ Document 33 Filed 07/25/22 Page 3 of 6
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even 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). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
3

Case 1:20-vv-01488-UNJ Document 33 Filed 07/25/22 Page 4 of 6
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Respondent’s Position
In his Rule 4 Report, Respondent argued that it was unclear when Petitioner’s
shoulder pain began. Rule 4(c) Report at 7. Respondent acknowledged that Petitioner
reported shoulder pain at least as early as twelve days after vaccination, but argued that
Petitioner had not shown that his shoulder pain began within 48 hours after vaccine
administration. Id. Respondent dismissed records documenting shoulder pain ‘since’ or
‘after’ his Tdap vaccination as “nothing more than a record of petitioner’s oral statements.”
Id. at 8. Respondent did not contest any other Table SIRVA criteria, however, and did not
assert that any statutory requirements were not met.
V. Finding of Fact
I make the following findings after a complete review of the record, including all
medical records, affidavits, expert reports, Respondent’s Rule 4 Report, and additional
evidence filed. Specifically, I base the findings on the following evidence:
• An August 13, 2018 record showing that Petitioner received a Tdap vaccine
in his left deltoid. Ex. 1 at 1.
• An August 25, 2018 record of an inpatient hospitalization for heart
palpitations and irregular heartbeat, noting that Petitioner reported that he
received a “Tdap vaccine 2 weeks ago to left arm and is now having pain to
his right shoulder.” Ex. 2 at 21, 35 (emphasis added).
• A record of a September 6, 2018 appointment with Dr. Victor Vela to follow
up on his hospitalization for atrial fibrillation, as well as lab work and thyroid
concerns. Ex. 3 at 12-14. Petitioner reported that he was feeling better, and
needed lab work for his cardiologist. Id. at 14. The record does not indicate
any shoulder complaints.
• An October 25, 2018 record of an appointment with Dr. Vela for left shoulder
pain, at which Petitioner reported that his shoulder pain was getting worse.
Ex. 3 at 10-12. Petitioner reported that when he received the injection, “it
felt funny and bubbly inside” and pointed to his mid upper deltoid on the left
side. Id. at 11. He added that one week after his Tdap vaccine, he “had
fever and chills and achy and sore all over.” Id. He stated that there were
4

Case 1:20-vv-01488-UNJ Document 33 Filed 07/25/22 Page 5 of 6
certain left shoulder movements that caused sudden pain, and that his
shoulder pain was getting worse compared to his September appointment.
Id. Dr. Vela assessed Petitioner with an adverse reaction to a vaccine,
indicating that an injection can cause localized muscle and joint pain. Id. at
12.
• A record of a November 1, 2018 orthopedic appointment with Dr. Casey
Taber for left shoulder pain. Ex. 4 at 121. Petitioner reported that his left
shoulder pain “started in August after receiving an injection in his arm . . . .
[t]his was a tetanus injection.” Id. at 122. Dr. Taber noted that Petitioner had
“left shoulder pain following a tetanus injection about two months ago.” Id.
at 123. Dr. Taber diagnosed Petitioner with bursitis and arthritis,
administered a steroid injection, and referred him to physical therapy. Id.
• A November 15, 2018 physical therapy evaluation record, documenting that
Petitioner “received a tetanus/[diphtheria] vaccine in superior anterior
shoulder and a week or so later was very sick while overseas” and was
subsequently diagnosed with atrial fibrillation; Petitioner “attributes shoulder
problem arising from injection in the wrong area and may have inflamed the
bursa, vs intramuscular.” Ex. 5 at 61.
• Petitioner’s supplemental affidavit, averring that the August 13, 2018
tetanus vaccination felt “different than any other injection I have had.” Ex.
10 at ¶ 2. He explained that it “felt as though ‘bubbles’ were being injected.”
Id. The following day, he experienced what he thought was the usual
soreness. Id. at ¶ 4. By August 15, 2018, however, the pain in his left
shoulder “had increased considerably.” Id. at ¶ 5. He explained that he is a
professional pilot and had an international trip coming up, and tried to put
the pain out of his mind. Id. at ¶ 6. During the trip, he became ill, and when
he returned, he was hospitalized for atrial fibrillation. Id. at ¶¶ 7-8.
The above medical entries show that Petitioner experienced left shoulder
discomfort while the vaccine was being administered, and pain within 24 hours that
progressed over time. I also find it significant that, while hospitalized for a heart condition
that impacted his career, Petitioner reported his shoulder pain as well, even though it was
a clearly-unrelated condition.3 And while some complaints about initial pain may be
3 Even though that record indicates that he reported right shoulder pain due to a vaccine injected in his left
arm, this was likely a typographical error, since it was not repeated anywhere else in the filed record.
5

Case 1:20-vv-01488-UNJ Document 33 Filed 07/25/22 Page 6 of 6
somewhat general in terms of their temporal beginning, they overall preponderate in favor
of an onset consistent with the Table element’s requirement.
Thereafter, Petitioner repeatedly and consistently reported pain in his left shoulder,
which he related to the Tdap vaccine. While he did not seek care for his pain immediately,
this is explained by his development of a heart condition serious enough to require
hospitalization and impact his career, the treatment of which he prioritized. In any event,
his delay in seeking treatment does not undercut the otherwise sufficient evidence that
his pain was immediate (although it may have implications for the severity of his condition
and thus damages).
Accordingly, I find there is preponderant evidence to establish that the onset of
Petitioner’s pain occurred within 48 hours of vaccination.
Scheduling Order
• Respondent shall file, by no later than Monday, July 25, 2022, an amended
Rule 4(c) Report or status report indicating how he intends to proceed in light of
this fact ruling.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01488-1
Date issued/filed: 2022-08-26
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/26/2022) regarding 35 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (ke) Service on parties made.
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Case 1:20-vv-01488-UNJ Document 37 Filed 08/26/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1488V
UNPUBLISHED
JOHN MICHAEL DULANEY, Chief Special Master Corcoran
Petitioner, Filed: July 26, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On October 28, 2020, John Michael Dulaney filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). Petitioner alleges that he suffered left shoulder injuries related to
vaccine administration (“SIRVA”) as a result of a tetanus, diphtheria, pertussis (“Tdap”)
vaccine received on August 13, 2018. Petition at 1. Petitioner further alleges the vaccine
was administered in the United States, his SIRVA persisted for more than six months,
and neither Petitioner nor any other party has ever filed an action or received
compensation in the form of an award or settlement for his vaccine-related injury. Petition
at ¶¶ 2, 11-13. 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-01488-UNJ Document 37 Filed 08/26/22 Page 2 of 2
On June 24, 2022, I made a finding of fact that the onset of Petitioner’s pain began
within the time set forth in the Table for SIRVA (ECF No. 32).
On July 25, 2022, Respondent filed an amended Rule 4(c) report in which he
accepts the June 24, 2022 onset ruling as the law of the case for purposes of further
proceedings before me, while reserving right to appeal the ruling (ECF No. 34). In light of
the fact ruling and medical record evidence, Respondent states that he has concluded
that Petitioner suffered SIRVA as defined by the Table. Id. at 7. Specifically, he agrees
that “petitioner had no recent history of pain, inflammation, or dysfunction of his left
shoulder; the onset of pain occurred within 48 hours after receipt of an intramuscular
vaccination; the pain was limited to the shoulder in which the vaccine was administered;
and, no other condition or abnormality, such as brachial neuritis, has been identified to
explain petitioner’s left shoulder pain.” Id. (footnote omitted). In addition, Respondent
agrees that Petitioner suffered the residual effects of his condition for more than six
months and therefore, “based on the record as it now stands and subject to his right to
appeal the Findings of Fact, respondent does not dispute that petitioner has satisfied all
legal prerequisites for compensation under the Act.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 3: USCOURTS-cofc-1_20-vv-01488-2
Date issued/filed: 2023-09-05
Pages: 13
Docket text: PUBLIC DECISION (Originally filed: 08/03/2023) regarding 44 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-01488-UNJ Document 48 Filed 09/05/23 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1488V
JOHN MICHAEL DULANEY, Chief Special Master Corcoran
Petitioner, Filed: August 3, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 28, 2020, John Michael DuLaney 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 alleged that he suffered a left shoulder injury related to
vaccine administration (“SIRVA”) as a result of a tetanus diphtheria acellular pertussis
(“Tdap”) vaccine received on August 13, 2018. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters. Petitioner prevailed on
entitlement and the parties negotiated damages, but proved unable to agree on an
appropriate sum.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website , and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2018).

Case 1:20-vv-01488-UNJ Document 48 Filed 09/05/23 Page 2 of 13
For the reasons set forth below, I find that Petitioner is entitled to a damages award
in the amount of $120,000.00 for actual pain and suffering and $432.68 in actual
unreimbursable expenses.
I. Relevant Procedural History
This case was activated on November 12, 2020 (ECF No. 10). On April 29, 2022,
Respondent filed a Rule 4(c) Report asserting that this case was not appropriate for
compensation, because it was unclear when Petitioner’s shoulder pain began (ECF No.
31). Following a status conference, on June 24, 2022, I issued findings of fact,
determining that a preponderance of the evidence supported a finding that Petitioner’s
shoulder pain began within 24 hours of vaccination (ECF No. 32).
On July 25, 2022, Respondent filed an amended Rule 4(c) Report recognizing that
my fact ruling is law of the case and agreeing that in light of the ruling, compensation is
appropriate, despite his disagreement with my finding (ECF No. 34). Accordingly, on July
26, 2022, I issued a ruling on entitlement (ECF No. 35), and the parties commenced
damages discussions.
Unfortunately, the parties soon reached an impasse in their discussions (ECF No.
39). Accordingly, on January 16, 2023, Petitioner filed a damages brief (ECF No. 42).
Respondent filed a response on March 8, 2023 (ECF No. 43). The matter of damages is
now ripe for resolution.
II. Relevant Medical History
On August 13, 2018, Petitioner, a pilot, received a Tdap vaccine in his left deltoid.
Ex. 1 at 1. Twelve days later (August 25, 2018), he presented to the emergency
department at Methodist and Childrens Hospital complaining of palpitations and irregular
heartbeats. Ex. 2 at 21. He was found to be in atrial fibrillation with rapid ventricular
response and was admitted. Id. While hospitalized, he reported that he had received a
Tdap vaccine two weeks earlier in his left arm, and now was also having shoulder pain.3
Id. at 35. Petitioner was treated for his heart condition and discharged from the hospital
on August 26, 2018, and followed up concerning his cardiac health thereafter.
On October 25, 2018, Petitioner presented to his primary care physician (“PCP”),
Dr. Victor Vela, complaining of left shoulder pain. Ex. 3 at 10-12. Petitioner reported that
when he received the vaccine, “it felt funny and bubbly inside,” and pointed to his mid
3 The record indicated that he was having right shoulder pain (Ex. 2 at 35), but I have ruled that this was
likely a typographical error. Dulaney v. Sec’y of Health & Human Servs., No. 20-1488V, 2022 WL 2912668,
at *4 n.3 (Fed. Cl. Spec. Mstr. June 24, 2022).
2

Case 1:20-vv-01488-UNJ Document 48 Filed 09/05/23 Page 3 of 13
upper deltoid on the left side. Id. at 11. He added that one week after his Tdap vaccine,
he “had fever and chills and [was] achy and sore all over.” Id. He stated that there were
certain left shoulder movements that caused sudden pain, and that his shoulder pain was
getting worse compared to his September appointment. Id. On examination, he was
tender to palpation over the left trapezius and deltoid muscles, without swelling or
erythema. Id. at 12. Petitioner had normal left shoulder passive range of motion (“ROM”)
but abduction was painful. Id. Dr. Vela assessed Petitioner with an adverse reaction to a
vaccine and recommended that he see a shoulder specialist, explaining that an injection
can cause localized muscle and joint pain. Id.
On November 1, 2018, Petitioner was seen by orthopedist Dr. Casey Taber for left
shoulder pain. Ex. 4 at 121. Petitioner reported that his pain “started in August after
receiving an injection in his arm . . . . [t]his was a tetanus injection.” Id. at 122. He reported
that the pain worsened with reaching, and he felt weakness and popping. Id. It improved
slightly with rest but otherwise had not improved. Id. at 122-23. On examination, Petitioner
had positive Neer and Hawkins impingement results, slightly diminished internal rotation
with pain, 170 degrees of forward flexion, and normal external rotation. Id. at 122. Dr.
Taber diagnosed Petitioner with bursitis and arthritis, administered a steroid injection, and
referred him to physical therapy. Id. at 123.
Petitioner underwent a physical therapy (“PT”) evaluation on November 14, 2018.
Ex. 5 at 61. The record indicates that Petitioner “received a tetanus/[diphtheria] vaccine
in superior anterior shoulder and a week or so later was very sick while overseas” and
was subsequently diagnosed with atrial fibrillation; Petitioner “attributes shoulder problem
arising from injection in the wrong area and may have inflamed the bursa, vs
intramuscular.” Petitioner’s pain was 0/10 at rest and 9/10 with activity, with a current pain
level of 0/10. Id. On examination, his left shoulder active ROM was 132 degrees in flexion,
65 degrees in extension, 125 degrees in abduction, 85 degrees in external rotation, and
60 degrees in internal rotation. Id. at 62-63.4 Id. His left shoulder exhibited reduced
strength compared to his right shoulder. Id. at 63. He had positive impingement results
on the Neer and Hawkins-Kennedy tests. Id. at 64. His signs and symptoms were
consistent with left shoulder pain and bursitis with mild adhesive capsulitis. Id.
Petitioner returned to Dr. Vela on November 15, 2018, reporting that his shoulder
felt a little better, but he still had decreased ROM. Ex. 3 at 8. Petitioner was advised to
continue with PT and seeing an orthopedist, and that a repeat steroid injection may be
needed. Id. at 10.
4 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 50 to 60 degrees in extension,
170 to 180 degrees in abduction, 90 to 100 degrees in external rotation, and 70 to 90 degrees in internal
rotation. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY
72, 76, 80, 84, 88 (F. A. Davis Co., 5th ed. 2016).
3

Case 1:20-vv-01488-UNJ Document 48 Filed 09/05/23 Page 4 of 13
Petitioner followed up with Dr. Taber on December 13, 2018. Ex. 4 at 118. He
reported that the first steroid injection and PT had helped a lot, but he was still
experiencing pain with certain motions. Id. at 120. Dr. Taber administered a second
steroid injection, and directed Petitioner to continue PT. Id.
Petitioner was re-evaluated in PT on January 3, 2019. Ex. 5 at 74-81. His active
ROM had improved slightly, but he still had positive impingement results. Id. He was
assessed as having fair results in terms of intensity and frequency of pain with activities
of daily living, but was still experiencing limited ROM. Id. He had not returned to cycling
due to left shoulder pain. Id.
On January 24, 2019, Petitioner returned to Dr. Taber. Ex. 4 at 116. He reported
that the two steroid injections had helped, but he continued to have pain and discomfort.
Id. at 117. His current pain level was 5/10, and his pain worsened with overhead activities
and reaching. Id. The pain was moderate in severity and dull and aching in nature. Id. PT
had helped, but he experienced pain with certain motions during therapy. Id. On
examination, his left shoulder was not tender, and his active ROM was 80 degrees in
external rotation and 170 degrees in flexion. Id. He had positive Neer, Hawkins, and
O’Brien’s test results. Id. Dr. Taber noted that Petitioner’s left shoulder pain had persisted
after several months, two steroid injections, and PT, and recommended an MRI. Id. He
noted that surgery may be warranted if the problem continued. Id.
Petitioner underwent a left shoulder MRI on February 1, 2019. Ex. 4 at 124. The
MRI report documented moderately severe osteoarthritis of the acromioclavicular joint
and “[a]t most mild subacromial bursal inflammation.” Id. There was no intraarticular
pathology of the glenohumeral joint, and the rotator cuff was intact and unremarkable. Id.
There was “intramuscular edema in the deltoid which may be related to recent injection.”
Id. The report noted trace fluid in the glenohumeral joint without effusion. Id.
On February 6, 2019, Petitioner returned to Dr. Taber to review the MRI results.
Ex. 4 at 113-115. Petitioner reported a pain level of 4/10. Id. at 115. He was still having
problems with reaching overhead, and sometimes with sleeping. Id. On examination, his
left shoulder active ROM was 170 degrees in forward flexion, normal external rotation,
and slightly diminished internal rotation with pain. Id. Dr. Taber reviewed the MRI and
noted that on the MRI the rotator cuff appeared fully intact, but that there was a bit of a
signal change that could indicate a partial upper subscapularis tear. Id. He also observed
edema surrounding the biceps. Id. There was effusion within the acromioclavicular joint,
bone marrow edema, synovitis, and some bursitis. Id. Citing the AC joint arthritis, edema,
bursitis, bicipital inflammation, and possibility of a small subscapularis tear, along with the
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failure of extensive PT, anti-inflammatories, activity modifications, and two steroid
injections, Dr. Taber discussed surgery with Petitioner. Id.
Petitioner attended a total of 12 PT appointments between November 13, 2018
and February 12, 2019. Ex. 5 at 61-86. Several months later, he followed up with Dr.
Taber on June 20, 2019. Ex. 4 at 111. His pain had not resolved, and was worse with
crossing his arms, reaching for a seatbelt, or reaching away from his body. Id. On
examination, he exhibited tenderness to palpation in the bicipital groove. Id. at 113. His
left shoulder active ROM was 80 degrees in external rotation and 170 degrees in flexion.
Id. He continued to have positive results on the Neer, Hawkins, and O’Brien’s tests. Id.
Dr. Taber noted that Petitioner had failed eight months of conservative treatment, and
shoulder surgery was planned. Id.
On October 16, 2019, Dr. Taber performed left shoulder arthroscopy with rotator
cuff repair of the subscapularis, anterior labral repair, subacromial decompression and
bursectomy, open subpectoralis biceps tenodesis, and distal clavicle excision. Ex. 5 at 6-
7. Dr. Taber found that there was an upper subscapularis tear, in addition to significant
bursitis and impingement. Id.
Petitioner’s first postoperative follow up occurred on November 7, 2019, with
physician assistant Timothy Stilwell. Ex. 4 at 104-106. Petitioner’s shoulder incisions were
healing without signs of infection. Id. at 106. His passive ROM in external rotation was 10
degrees. Id. Petitioner was directed to begin passive external rotation and table slides,
and begin PT with passive ROM four weeks after his surgery and active ROM six weeks
after surgery. Id.
On November 13, 2019, Petitioner underwent a PT evaluation. Ex. 5 at 8-15. He
reported pain levels of 0/10 at rest, and 2/10 at present and with activity. Id. The record
indicates that he reported a pain level of 5/10 at best; this is likely a typographical error,
and probably should read 5/10 at worst rather than best. Id. His left shoulder active ROM
was not tested. His passive ROM was 180 degrees in flexion, extension, scaption, and
abduction, and 90 degrees in external and internal rotation. Id.
On December 10, 2019, Petitioner returned to Dr. Taber for another
postoperative visit. Ex. 4 at 102. Petitioner’s shoulder incisions were healed, with no signs
of infection. Id. at 104. His passive ROM in external rotation was 25 degrees. Id. He was
instructed to continue PT and start active ROM, with no strengthening for six more weeks.
Id.
On January 9, 2020, Petitioner underwent a reevaluation in PT. Ex. 5 at 24-31.
He reported pain levels between one and five out of ten, with dressing, reaching behind
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his back, and end ranges of horizontal adduction and abduction being the most
problematic. Id. at 24. His active ROM was measured at 125 degrees in flexion, 70
degrees in extension, 75 degrees in internal and external rotation, and 130 degrees in
abduction. Id. at 26. Petitioner reported 75% improvement since starting PT. Id. at 27.
While he had progressed in ROM, strength, and activity tolerance, he still lacked full active
ROM in all planes and lacked shoulder stability for dynamic activities. Id. Further PT was
recommended. Id.
Petitioner returned to Dr. Taber on February 4, 2020. Ex. 4 at 100. He was doing
well, with a pain level of 1/10. Id. at 101. His ROM was good, but he had some tightness
with internal and external rotation. Id. On examination, his left shoulder active ROM was
80 degrees in external rotation and 170 degrees in flexion, and he had negative
impingement results. Id. at 102. Petitioner was advised to continue to work on ROM and
strengthening, and follow up as needed. Id.
Petitioner’s final PT session was on March 10, 2020. Ex. 5 at 60. He reported
that he was happy with his continued progress through PT. Id. The physical therapist
noted that he did well and demonstrated good shoulder and scapular stability. Id. The
plan was to discharge him to a home exercise plan after his next visit. Id. Petitioner
attended a total of 26 PT appointments between November 13, 2019 and March 10, 2020.
Ex. 5 at 8-60.
III. Affidavit Evidence
Petitioner submitted two affidavits in support of his petition, Exhibits 8 and 10. He
averred that the August 13, 2018 tetanus vaccine felt different than any other injection he
has had. Ex. 10 at ¶ 2. It felt as though “bubbles” were being injected. Id. The next day,
he experienced expected soreness. Id. at ¶ 4. By two days after vaccination, the pain
increased considerably. Id. at ¶ 5. He stated that he is a professional pilot and had an
international trip coming up and tried to put the pain out of his mind. Id. at ¶ 6. During the
trip, he became ill, and when he returned he had heart problems. Id. at ¶¶ 7-8. Petitioner
states that his vaccine injury has resulted in a complete upheaval to his health and life.
Ex. 10 at ¶ 14.
IV. The Parties’ Arguments
Petitioner proposes an award of $130,000.00 in pain and suffering. Petitioner’s
Brief in Support of Damages, filed Jan.16, 2023 (ECF No. 42) (“Br.”). Respondent
proposes an award of $100,000.00. Respondent’s Response to Petitioner’s Brief, filed
Mar. 8, 2023 (ECF No. 43) (“Resp.”). The parties agree that Petitioner suffered a
moderate SIRVA. Br. at 8; Resp. at 8.
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In support of his position, Petitioner cites Wilson, Rafferty, Randazzo, and
Dobbins, featuring pain and suffering awards of $130,000.00, $127,500.00, $125,000.00,
and $125,000.00, respectively.5 Petitioner asserts that he initially attempted to treat with
conservative modalities, including PT and steroid injections. Br. at 9. When these
measures failed and his pain persisted, his orthopedist recommended surgery. Id. After
surgery, Petitioner returned to PT and followed up with his orthopedist. Id. At his final
orthopedic appointment in February 2020, Petitioner was doing well, had good ROM, and
reported a pain level of 1/10. Id. Petitioner asserts that he experienced a moderate SIRVA
that required surgical intervention, as did the petitioners in the cases he cites. Id.
Respondent distinguishes the facts of Petitioner’s cases, and cites Hall, Cates,
Selling, and Shelton, involving pain and suffering awards of $110,000.00, $108,000.00,
$105,000.00, and $97,500.00, respectively.6 Respondent acknowledges that the cases
Petitioner cites involve similar treatment, but asserts that nonetheless Mr. DuLaney’s
SIRVA was less severe, and was “prolonged by delays in treatment.” Resp. at 11.
Respondent argues that Mr. DuLaney did not suffer from severe shoulder pain, a
significant loss of ROM, or “continued pain that returned after he completed PT after his
surgery.” Id. at 10.
Respondent asserts that like the petitioners in Hall, Cates, and Selling, Mr.
DuLaney reported shoulder pain shortly after vaccination and required additional
treatment after surgery. Resp. at 12. However, unlike those petitioners, Mr. DuLaney did
not seek treatment right away. Id. Rather, Petitioner delayed treatment for more than two
months, and had two additional gaps in care that “prolonged his recovery.” Resp. at 13.
Respondent acknowledges that Mr. DuLaney attended more PT sessions, and received
more steroid injections, than the petitioners in Hall, Cates, and Selling, but argues that
Mr. DuLaney’s pain was less severe and thus he did not require aggressive treatment. Id.
Respondent asserts that if not for the delays in treatment, Mr. DuLaney likely would have
recovered in the same timeframe as the petitioners in Hall and Cates, justifying a lower
award. Id.
5 Wilson v. Sec’y of Health & Human Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. Mar.
18, 2021); Rafferty v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec.
Mstr. May 21, 2020); Randazzo v. Sec’y of Health & Human Servs., No. 18-1513V, 2021 WL 829572 (Fed.
Cl. Spec. Mstr. Feb. 1, 2021); Dobbins v. Sec’y of Health & Human Servs., No. 16-0854V, 2018 WL
4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018).
6 Hall v. Sec’y of Health & Human Servs., No. 19-1556V, 2022 WL 2196412 (Fed. Cl. Spec. Mstr. May 6,
2022); Cates v. Sec’y of Health & Human Servs., No. 18-0277V, 2020 WL 3751072 (Fed. Cl. Spec. Mstr.
June 5, 2020); Wilson v. Sec’y of Health & Human Servs., No. 16-0588V, 2019 WL 3425224 (Fed. Cl. Spec.
Mstr. May 2, 2019); Shelton v. Sec’y of Health & Human Servs., No. 19-0279V, 2021 WL 2550093 (Fed.
Cl. Spec. Mstr. May 21, 2021).
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V. 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 & Human 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 & Human 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 & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human 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 & Human 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.7 Hodges v. Sec’y of
Health & Human 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).
7 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.
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Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by a decision of the
Court of Federal Claims several years ago. Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (Fed. Cl. 2013). Graves instead emphasized the importance of
assessing pain and suffering by looking to the record evidence specific to the injured
individual, 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 approach, the
statutory cap merely cuts off higher pain and suffering awards – it does not shrink the
magnitude of all possible awards as falling within a spectrum that ends at the cap.
Although Graves is not controlling of the outcome in this case, it provides reasoned
guidance in calculating pain and suffering awards.
VI. Prior SIRVA Compensation Within SPU8
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2023, 3,304 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 3,211 of these cases, with the remaining 93
cases dismissed.
1,834 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that petitioner was entitled to compensation (as opposed to a settlement or concession).9
In only 173 of these cases, however, was the amount of damages also determined by a
special master in a reasoned decision.10 As I have previously stated, the written decisions
setting forth such determinations, prepared by neutral judicial officers (the special masters
8 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
9 The remaining 1,377 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
10 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (1,632 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
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themselves), provide the most reliable precedent setting forth what similarly-situated
claimants should also receive.11
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated12
Decisions by Damages Damages Agreement
Special Master
Total Cases 173 1,632 29 1,377
Lowest $40,757.91 $22,500.00 $45,000.00 $5,000.00
1st Quartile $70,203.12 $62,825.18 $90,000.00 $38,134.81
Median $92,299.83 $83,039.25 $130,000.00 $55,000.00
3rd Quartile $125,000.00 $111,475.61 $162,500.00 $80,803.17
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 173 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$40,000.00 to $215,000.00, with $90,000.00 as the median amount. Only seven of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.13
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
11 Of course, even though any such informally-resolved case must still be approved by a special master,
these determinations do not provide the same judicial guidance or insight obtained from a reasoned
decision. But given the aggregate number of such cases, these determinations nevertheless “provide some
evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Human
Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the
difference between cases in which damages are agreed upon by the parties and cases in which damages
are determined by a special master).
12 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
13 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
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mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In six cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
VII. Appropriate Compensation for Petitioner’s 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.
When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
Petitioner’s injury continued for nearly 19 months. I previously found that the onset
of his pain occurred within 48 hours of the August 2018 vaccination, and he continued
treatment until March 2020. Within less than four months (in December 2018), he reported
an improvement in his shoulder pain.
His ROM deficits were in the mild to moderate range, and after surgery and PT
improved greatly, although some deficits with overhead reaching and strength remained.
In the early months of treatment, he reported severe pain with activity, but after a few
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months of treatment and PT his pain levels remained mild to moderate. Overall, this was
a moderate SIRVA, albeit one occurring in the context of a surgery.
Randazzo is the best comparable case offered by either side. Mr. DuLaney and
the petitioner in Randazzo had similar injuries and treatment. Both had moderate injuries
treated with steroid injections, PT, and surgery, and both had good outcomes. The
petitioner in Randazzo sought care sooner and had slightly more intense pain, but one
less steroid injection and less PT. Mr. DuLaney obtained some relief from early
conservative care and thus the intense period of his pain abated sooner, although the
overall duration of his injury was longer. As I indicated in the June 24, 2022 fact ruling,
Petitioner’s delay in seeking treatment suggests a less severe injury, and thus justifies a
slightly lower damages award. DuLaney, 2022 WL 2912668, at *4. Respondent’s
comparables were less on point with respect to duration of injury or character of treatment
– as Respondent acknowledges.
Respondent also emphasizes two four-month gaps in Petitioner’s treatment (from
February 12 to June 20, 2019, and June 20 to October 16, 2019), characterizing them as
going “eight months with only one shoulder-related medical visit” and an “eight-month gap
in treatment.” Resp. at 8, 9. Treatment gaps are relevant to assessing pain and suffering,
as they often suggest that a petitioner’s condition could be tolerated without medical
treatment. But not all gaps are created equal. It is not uncommon for a SIRVA petitioner
to take a break from active treatment, in hopes that their condition will resolve on its own.
And this record does not suggest, as Respondent speculates, that “it is likely that he
would have recovered within the same timeframe as the petitioners in Hall and Cates if
not for the delays in treatment.” Resp. at 13.
Thus, although I give the initial delay in treatment some weight in assessing
damages to be awarded, the subsequent gaps in this case do not similarly impact the
result. And the total I am awarding is on the lower range of six-figure pain and suffering
SIRVA awards in any event.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $120,000.00.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 14 I also find that Petitioner
14 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 & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994))..
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is entitled to $432.68 in actual unreimbursable expenses.15
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum payment of $120,432.68, 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 Court is directed to enter judgment in accordance with this decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 The parties are in agreement as to damages for unreimbursable expenses. Br. at 1; Resp. at 13.
16 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.
13