VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01720
Package ID: USCOURTS-cofc-1_20-vv-01720
Petitioner: Michael Mantagas
Filed: 2020-12-01
Decided: 2023-07-17
Vaccine: influenza
Vaccination date: 2019-11-18
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 75715

AI-assisted case summary:
Michael Mantagas, a 37-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on December 1, 2020. He alleged that he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered in his left deltoid on November 18, 2019. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on April 1, 2022, conceding that Mr. Mantagas's alleged injury was consistent with the SIRVA criteria set forth in the Vaccine Injury Table and that compensation was appropriate. Specifically, the respondent noted that Mr. Mantagas had no prior history of shoulder pain or dysfunction, that his pain onset occurred within 48 hours post-vaccination, that his pain and reduced range of motion were limited to the vaccinated shoulder, and that no other condition explained his symptoms. Based on the respondent's concession, Chief Special Master Brian H. Corcoran issued a Ruling on Entitlement in Mr. Mantagas's favor on April 4, 2022. Following the entitlement ruling, the parties were unable to resolve the issue of damages. On June 14, 2023, Chief Special Master Corcoran issued a Decision Awarding Damages. The public decision does not describe the specific onset of symptoms, the exact nature of the pain, or the specific medical tests performed beyond an MRI. It also does not name petitioner's counsel or respondent's counsel in the decision text itself, though their firms are listed. The decision states that Mr. Mantagas received the influenza vaccine in his left arm on November 18, 2019. Approximately 53 days later, on January 10, 2020, he sought care for left shoulder and upper arm pain, rated 8/10 and worsening, exacerbated by activity. An initial examination revealed no swelling or tenderness but pain with certain movements and pain on rotator cuff testing, with full strength. An X-ray showed no fracture, dislocation, or arthritis. He was diagnosed with a likely rotator cuff tear and prescribed medication and physical therapy (PT). His initial PT evaluation reported pain from 6 to 9/10, inability to tolerate overhead activity, and moderately limited range of motion and strength. After 13 PT sessions over seven weeks, he reported limited symptom relief and no objective progress. A June 16, 2020 MRI showed mild supraspinatus tendinosis and a low-grade linear tear within the distal fibers of the supraspinatus tendon. In October 2020, he reported persistent pain rated at 5/10, with unchanged exam findings. He was not interested in surgery and was considering a cortisone injection. A second opinion in October 2020 noted painful but full range of motion and full strength, with positive impingement signs, and recommended further PT. In June 2021, he reported increased pain rated at 8/10, with unchanged exam findings. His orthopedist again recommended PT, a cortisone injection, and surgery. There are no subsequent medical records in the provided text. Mr. Mantagas averred that his initial pain was consistently 8-10/10, impacting his ability to care for his child and perform his job. He stopped in-person PT in March 2020 due to the COVID-19 pandemic and his high-risk status, favoring home exercises. He was laid off in March 2020 and rehired in October 2020, with the shoulder injury continuing to disrupt his work. He continued home exercises but expressed concerns about further in-person PT due to COVID-19 variants and a phobia of surgical procedures/anesthesia, which delayed consideration of surgery. Chief Special Master Corcoran found that Mr. Mantagas established a moderately severe injury for 11 months, persisting at a milder level for another 18 months. The Special Master awarded Mr. Mantagas $75,715.00, comprising $75,000.00 for actual pain and suffering and $715.00 for actual unreimbursed expenses, based on the evidence and comparison to prior SIRVA cases.

Theory of causation field:
Michael Mantagas, age 37, received an influenza vaccine on November 18, 2019. He alleged a shoulder injury related to vaccine administration (SIRVA). The respondent conceded that the injury met the SIRVA criteria on the Vaccine Injury Table. The Special Master found that Mr. Mantagas established a moderately severe injury for 11 months, persisting at a milder level for another 18 months. The award was $75,000.00 for pain and suffering and $715.00 for unreimbursed expenses, totaling $75,715.00. The public decision does not detail the specific mechanism of injury or name any medical experts. Petitioner counsel was Muller Brazil, LLP, and respondent counsel was the U.S. Department of Justice. Chief Special Master Brian H. Corcoran issued the Ruling on Entitlement on April 4, 2022, and the Decision Awarding Damages on July 17, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01720-0
Date issued/filed: 2022-05-19
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/04/2022) regarding 22 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-01720-UNJ Document 24 Filed 05/19/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1720V
UNPUBLISHED
MICHAEL MANTAGAS, Chief Special Master Corcoran
Petitioner,
v. Filed: April 4, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Ruling on Entitlement; Concession;
Table Injury; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On December 1, 2020, Michael Mantagas 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered in his left
deltoid on November 18, 2019. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 1, 2022, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner’s alleged injury is consistent with the SIRVA criteria set forth in the Vaccine
Injury Table (“Table”) and the accompanying Qualifications and Aids to Interpretation
(“QAI”) and that compensation is appropriate. Specifically, Petitioner had no apparent
history of pain, inflammation, or dysfunction in the shoulder at issue before vaccination;
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-01720-UNJ Document 24 Filed 05/19/22 Page 2 of 2
the onset of Petitioner’s pain occurred within 48 hours after receipt of an intramuscular
vaccination; Petitioner’s pain and reduced range of motion were limited to the shoulder in
which the vaccine was administered; and there is no other condition or abnormality that
would explain Petitioner’s symptoms. Rule 4(c) Report at 6 (citing 42 C.F.R. §§ 100.3(a),
(c)(10)).
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 2: USCOURTS-cofc-1_20-vv-01720-1
Date issued/filed: 2023-07-17
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 06/14/2023) regarding 33 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-01720-UNJ Document 37 Filed 07/17/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1720V
MICHAEL MANTAGAS, Chief Special Master Corcoran
Petitioner,
v. Filed: June 14, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 1, 2020, Michael Mantagas 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered in his left
deltoid on November 18, 2019. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”). Although a ruling on
entitlement in Petitioner’s favor was issued in April 2022, the parties have been unable to
resolve damages on their own.
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-01720-UNJ Document 37 Filed 07/17/23 Page 2 of 12
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $75,715.00 (representing $75,000.00 for actual pain and
suffering, plus $715.00 for actual unreimbursed expenses).
I. Procedural History
Alongside his petition, Mr. Mantagas filed the medical records and the signed
declaration3 required under the Vaccine Act. Exhibits (“Exs.”) 1-7, filed Dec. 1, 2020, ECF
No. 1; see Section 11(c). On January 15, 2021, Petitioner’s filings were deemed
sufficiently complete, and the case was assigned to the SPU (OSM’s adjudicatory system
for resolution of cases deemed likely to settle). ECF No. 8.
While awaiting Respondent’s tentative position, Petitioner filed a final exhibit of
medical records. Ex. 8 filed Aug. 23, 2021, ECF No. 15. Respondent filed his Rule 4(c)
Report conceding Petitioner was entitled to compensation on April 1, 2022, and a Ruling
on Entitlement was issued on April 4, 2022. ECF Nos. 21-22. Petitioner provided
additional information about his treatment course. Status Report filed May 19, 2022, ECF
No. 25; Ex. 9 – Supplemental Declaration, filed May 25, 2022, ECF No. 26. Petitioner
then rejected Respondent’s proffer on pain and suffering, and the parties briefed the
issue. Status Report filed May 27, 2022, ECF No. 27; Petitioner’s Memorandum (“Brief”)
filed Aug. 1, 2022, ECF No. 28; Respondent’s Memorandum (“Response”) filed
September 30, 2022, ECF No. 29; Petitioner’s Memorandum (“Reply”) filed Oct. 31, 2022,
ECF No. 30. The matter is now ripe for adjudication.
II. Authority
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).
3 Rather than affidavits, both statements provided by Petitioner (Exs. 2, 9) are signed under penalty of
perjury pursuant to 28 U.S.C.A. § 1746.
2

Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 3 of 12
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,
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 (Fed. Cl. 2013).
The Graves court 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.” Id. at 590. Instead, Graves
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. Although Graves is not
controlling of the outcome in this case, it provides reasoned guidance in calculating pain
and suffering awards.
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.
3

Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 4 of 12
III. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2023, 3,031 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,950 of these cases, with the remaining
81 cases dismissed.
Of the compensated cases, 1,677 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 148 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
1,501 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. 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, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 1,273 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. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
5 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.
6 See, e.g., Sakovits v. Sec’y of Health & Hum. 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).
4

Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 5 of 12
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 148 1,501 28 1,273
Lowest $40,757.91 $22,500.00 $45,000.00 $5,000.00
1st Quartile $70,382.97 $65,000.00 $90,000.00 $40,000.00
Median $93,649.92 $85,000.00 $122,886.42 $56,250.00
3rd Quartile $125,000.00 $112,654.00 $161,001.79 $82,500.00
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 148 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, 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 $1,500.00.8
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
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
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5

Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 6 of 12
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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Consideration of the Evidence
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 performing this analysis, I have reviewed the record as a whole,
including all medical records, declarations, affidavits, and all other filed evidence, plus the
parties’ briefs and other pleadings. I also have taken into account 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 ultimate determination on the specific
circumstances of this case.
Upon receiving the subject vaccination in his left arm at a local pharmacy on
November 18, 2019, Michael Mantagas was 37 years old. Ex. 1 at 4-5. His medical history
included asthma and sleep apnea, but no musculoskeletal complaints. Ex. 3 at 16-18. He
was employed as a project manager for a security company, married, and caring for one
young child, with another on the way. Ex. 4 at 8; Ex. 9 at ¶ 4.
53 days after vaccination (and hence a little less than two months), on January 10,
2020, Petitioner established care with Robert W. Borzio, M.D., at Orthopedic Sports
Medicine and Rehabilitation Center, P.A. Ex. 4 at 8.9 He reported left shoulder and upper
arm pain ever since the vaccination, currently rated 8/10, and worsening. Id. The pain
9 Petitioner later confirmed that he was not previously under the care of the orthopedic specialist and that
he made the appointment directly, without a referral. Status Report filed May 19, 2022, ECF No. 25.
6

Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 7 of 12
was exacerbated while bending, lying in bed, and lifting (requiring activity restrictions at
work). Id. Dr. Borzio recorded that his exam found no swelling or tenderness. Id. There
was “full motion, though pain with flexion over the head, horizontal adduction, and internal
rotation,” “pain on testing of the rotator cuff,” but no impingement signs. Id. Petitioner’s
strength was 5/5. Id. An x-ray showed no fracture, dislocation, or arthritis. Id. Dr. Borzio
assessed a likely rotator cuff tear, for which he prescribed meloxicam (15 mg) and
referred to physical therapy (“PT”). Id.
At his January 17, 2020, PT initial PT evaluation, Petitioner reported pain ranging
from 6 to 9/10. Ex. 5 at 5. He was unable to tolerate overhead activity or repetitive use of
his left arm at all without pain. Id. The injury disrupted his ability to drive, bathe, shower,
and complete household tasks. Id. On exam, the therapist recorded moderately limited
active and passive range of motion, decreased strength (3/5), and positive empty can/
supraspinatus and Hawkins-Kennedy signs. Id. The therapist recommended PT three
times per week for six weeks, and also suggested exercises to perform at home. Id. By
the 13th and last session on March 6, 2020, he had “limited symptom relief” and no
objective documented progress. Ex. 5 at 41-43 (listing identical “initial” and “current”
limitations, decreased range of motion, and weakness). The records do not indicate why
PT was discontinued.10
Next, the orthopedist Dr. Borzio ordered a June 16, 2020, MRI which visualized
“mild supraspinatus tendinosis” and “a low-grade linear tear within the distal fibers of the
supraspinatus tendon.” Ex. 7 at 1.
At an October 23, 2020, follow-up appointment several months later, Petitioner
reported persistent shoulder pain rated at 5/10, and “diligent” adherence to a home
exercise program (“HEP”). Ex. 8 at 25. Dr. Borzio’s exam findings were unchanged – with
full but painful range of motion and no impingement signs. Id. at 26. Petitioner was “not
currently interested in any surgical intervention.” Id. He would “check with his GP,
because of possible immune system compromise in the setting of COVID pandemic”
about Dr. Borzio’s suggestion of a cortisone injection. Id.11 Dr. Borzio also recommended
restarting formal PT. Id.
10 Within Ex. 5, the records are somewhat out of order. Organized chronologically, PT encounters occurred
on January 17, 22, 29, and 31; February 6, 7, 13, 14, 19, 20, 26, and 28; and March 4 and 6, 2020. See
generally Ex. 5.
11 Dr. Borzio recorded that Petitioner would be consulting his primary care provider about this concern –
but that is not documented in the primary care records or corroborated by Petitioner’s declarations.
7

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Dr. Borzio then facilitated an October 27, 2020, second opinion with his colleague
Jeffrey Van Gelderen, M.D. Ex. 8 at 22. Petitioner reported that his pain had worsened,
currently rated 7/10, and was partially relieved with medication. Id.12 Dr. Van Gelderen’s
exam elicited the same finding of painful but “full” range of motion, and full strength. Id. at
23. But unlike Dr. Borzio, Dr. Van Gelderen assessed positive impingement of the left
shoulder – for which he prescribed Naprosyn (500 mg) and echoed the recommendation
for further PT. Id. at 24.
After a lengthy gap in any medical treatment, on June 3, 2021, Petitioner followed
up with his original orthopedist Dr. Borzio. Ex. 8 at 17. Petitioner reported a slightly
increased pain rating of 8/10. Id. Dr. Borzio’s exam findings were unchanged. Id. at 18.
Dr. Borzio wrote another prescription for Mobic (15 mg), and again recommended further
PT, as well as a cortisone injection and surgery once Petitioner “f[ound] a shoulder
surgeon in network to follow up with.” Id. at 18. There are no subsequent medical records
evidencing Petitioner’s ongoing shoulder condition or any additional treatment thereof.
See generally Exs. 1-8.
In his sworn declaration dated May 18, 2022, Petitioner avers that his initial pain
was “consistently around an 8-10 range.” Ex. 9 at ¶ 4. The injury disrupted his ability to
care for his 1.5-year-old child and his wife, who was 4 months pregnant with their second
child. Id. The SIRVA also harmed his new job – starting one month later, on December
16, 2019 – as a project manager/ install tech supervisor for a security firm, which involved
interstate car travel, on-site meetings, and physical labor. Id. at ¶ 5. By January 2020, he
concluded that the pain was not going away, researched orthopedists in his area, and
presented to Dr. Borzio. Id. at ¶ 6. After trying Mobic as prescribed by Dr. Borzio,
Petitioner determined that Advil PM was better for his pain. Id.
Petitioner recalls that in early March 2020, in light of the emerging COVID-19
pandemic and his high-risk status (due to chronic asthma and diminished lung capacity),
he stopped attending in-person PT in favor of the home exercises provided by his
therapist. Ex. 9 at ¶ 11. He was included in company-wide layoffs in late March 2020, and
struggled to support his family, including his second child who was born in late April 2020.
Id. at ¶¶ 12-13.13 While he was rehired in October 2020, the shoulder injury continued to
disrupt his work on the computer, traveling, and on-site. Id. at ¶ 16. He never resumed in-
person PT due to ongoing concern about additional COVID-19 variants, but he has
12 The medical record provides that: “symptoms have improved with muscle relaxers” but the only current
medication was Mobic 15 mg once daily. Ex. 8 at 22. Petitioner later confirmed that the reference to “muscle
relaxers" was in error. Status Report filed May 19, 2022, ECF No. 25.
13 Petitioner does not allege that his SIRVA caused or substantially contributed to the termination of his
employment, nor has he asserted lost wages as part of his damages demand.
8

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continued to perform his home exercises approximately 2-3 times a week, plus stretching
and ice/ heat pads daily. Id. at ¶ 15. His pain has remained “constant” at between 7 –
10/10, with “slight relief” from Advil PM, which he takes before bed each night. Id. at ¶ 17.
Finally, Petitioner stated: “I am going to have a follow up appointment with an
orthopedic surgeon in the coming months to explore any further treatments and/or surgery
options. It seems to be the one option that might relieve this pain once and for all, but I
have a documented and diagnosed phobia of surgical procedures/ anesthesia known as
tomophobia which is delaying my decision to move forward at this time.” Ex. 9 at ¶ 17.
However, no such concern or follow-up attention for the shoulder is reflected in the
medical records or the briefing completed in October 2022.
B. Analysis
Although there is demonstrated delay in seeking initial treatment, Petitioner has
provided some credible explanation for this. As noted above, he had hope that the injury
would self-resolve; was focused on a new job involving travel, plus care of his infant son
and pregnant wife; and he needed time researching an orthopedist in his area. These
factors reasonably justify the delay and did not prevent a favorable onset finding –
although they also underscore that the initial severity of his injury was likely limited, since
he was able to tolerate the condition without treatment. Thus, based on the available
evidence, I find that his initial pain was most likely moderate – consistent with the lower
end of Petitioner’s subjective pain rating (6/10) at his first PT encounter, two months into
the course.
The PT records also reflect moderately decreased active and passive range of
motion, and moderately decreased strength. Thirteen (13) PT sessions over seven
weeks, ending in early March 2020, did not deliver improvement. Petitioner has also
credibly addressed the subsequent treatment gap – citing emergence of the COVID-19
pandemic (coinciding with his discontinuation of formal PT), termination from his job, the
birth of his second child, and “diligent” maintenance of a home exercise program. I accept
that his injury remained moderately severe, featuring neither improvement nor
exacerbation, throughout the gap in treatment and up to October 2020.
Thereafter, however, Petitioner elected to continue with a conservative course. I
recognize his ongoing concerns about in-person PT as additional COVID-19 variants
emerged – but the record does not contain any continued communications with his
physical therapist or address the potential of telehealth. Despite his own apparent
concerns, no medical provider recorded that he was an inappropriate candidate for a
cortisone injection (suggested by the two orthopedists) or that he had a diagnosed phobia
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of medical procedures (as stated in his affidavit). The imaging findings of “mild” tendinosis
and a “low-grade” tear also point towards a relatively less severe injury. Based on the
June 2021 assessment by the established orthopedist, I recognize that Petitioner had
ongoing pain leading to pain-protective behavior and thus, decreased range of motion at
that time. There is again, no evidence of improvement or an intervening cause – meaning
that the injury can still be attributable to his SIRVA. But his subjective assessment of
severe pain is not consistent with the available evidence.
In sum, I find that Petitioner has established a moderately severe injury for 11
months, which persisted at a milder level for another 18 months (covering the second gap
in treatment, and up to Petitioner’s sworn declaration).
Petitioner seeks an award of $95,000.00, averring that his pain and suffering is
equivalent to that established in Accetta. Brief at 7.14 Petitioner reasons that he treated
for a shorter period of time but had less gaps in treatment and suffered a more intense
injury, and similarly received but declined medical providers’ recommendations of a
cortisone injection and surgery. Id. at 7-8. However, Accetta featured a SIRVA which was
“moderately more severe than that experienced by many other similarly situated
petitioners who did not undergo surgery.” Accetta, 2021 WL 1718202, at *3. The MRI
reflected significant findings including severe tendinopathy and several tears. Id. And I
recognized that the petitioner’s “past work as a physical therapist likely made her
confident she could self-treat her symptoms” during the initial period and the subsequent
gaps in treatment. See id. at *3 and n. 10, *5.
Petitioner also avers that he suffered more than the Russano petitioner, who
“experienced rapid recovery after beginning physical therapy, experiencing 80 percent
improvement within eight months,” and “was not recommended for surgery.” Brief at 7,
8.15 However, the Russano petitioner had a more severe initial injury and required more
focused treatment sooner in time. 2020 WL 3639804, at *2-4. I also accepted that
preexisting medical conditions enhanced the pain and suffering in Russano, while making
no such finding here. Id. at *4.
14 Citing Russano v. Sec’y of Health & Hum. Servs., No. 18-0329V, 2020 WL 3639804 (Fed. Cl. Spec. Mstr.
June 4, 2020) (awarding $80,000.00 for actual pain and suffering); Accetta v. Sec’y of Health & Hum. Servs.,
No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec. Mstr. March 31, 2021) ($95,000.00).
15 Citing Russano v. Sec’y of Health & Hum. Servs., No. 18-0329V, 2020 WL 3639804 (Fed. Cl. Spec. Mstr.
June 4, 2020) (awarding $80,000.00 for actual pain and suffering).
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Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 11 of 12
Respondent has proffered $52,500.00. Response at 10. In support of this figure,
Respondent avers that Petitioner’s course is more like those seen in Ramos and Mejias,
which each featured “limited conservative treatment, no cortisone injections or surgery,
fewer than 15 PT sessions, and treatment gaps.” Response at 10.16 Respondent avers
that his proffer “account[s] for the fact that Petitioner presented for care two months faster
than the petitione[r] in Ramos[,] but also had an 11-month treatment gap, reducing his
injury course to eight months overall.” Id. at 11.17 However, Petitioner correctly notes that
those are two of the lowest reasoned opinions on SIRVA pain and suffering in the
Program – and that even despite Petitioner’s treatment gaps, that he has demonstrated
a higher level of pain over a much longer period of time. Reply at 1-2.
Respondent states that his “analysis is also generally consistent with the Court’s
rulings” in Rayborn and Norton, Response at n. 5.18 In each case, the vaccinee was
relatively young and healthy prior to vaccination, and demonstrated “mild to moderate
symptoms for approximately nine months.” Rayborn, 2020 WL 5522948, at *12; Norton,
2021 WL 4805231, at *6. Another case, Couch,19 features a similar course, but starting
with a fall 2019 vaccination. See also Response at n. 4 (citing Couch for the analysis of
“disruptions in treatment related to the COVID-19 pandemic”).
As noted above, I have concluded that Petitioner suffered a more significant injury
which was initially complicated by the Pandemic, and persisted over a longer period of
time. Based on my careful review of the case evidence and in my experience, I find that
$75,000.00 is an appropriate award for Petitioner’s actual pain and suffering. I am opting
for the virtual mid-point between the parties’ proposed sums. Although I do not in making
damages determinations operate from the principal that “meeting in the middle” is the
best solution to resolving these kinds of disputes, in this particular case the number I
embrace is.
16 Citing Mejias v. Sec’y of Health & Hum. Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr.
Nov. 10, 2021) (awarding $45,000.00 for actual pain and suffering); Ramos v. Sec’y of Health & Hum.
Servs., No. 18-1005V, 2021 WL 6588576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021) ($40,000.00).
17 Respondent suggests that Mejias also involved an initial delay of four months prior to the first medical
treatment for SIRVA. Reply at 11. In fact in Mejias, the petitioner sought medical care for his SIRVA two
days, and again 10 days post-vaccination. Mejias, 2021 WL 5895622, at *3-4.
18 Citing Rayborn v. Sec’y of Health & Hum. Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr.
Aug. 14, 2020) (awarding $55,000.00 for actual pain and suffering); Norton v. Sec’y of Health & Hum.
Servs., No. 19-1432, 2021 WL 4805231 (Fed. Cl. Spec. Mstr. Sept. 14, 2021) ($55,000.00).
19 Couch v. Sec’y of Health & Hum. Servs., No. 20-1246V, 2022 WL 4453921 (Fed. Cl. Spec. Mstr. Aug.
24, 2022) (awarding $55,000.00 for actual pain and suffering).
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Case 1:20-vv-01720-UNJ Document 37 Filed 07/17/23 Page 12 of 12
Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $75,715.00 (representing $75,000.00 for actual pain and
suffering,20 plus $715.00 for actual unreimbursed expenses).21 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.22
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
20 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
21 The parties have stipulated to the expenses. Brief at n. 1; Response at 2.
22 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.
12