VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01891
Package ID: USCOURTS-cofc-1_20-vv-01891
Petitioner: Don Brown
Filed: 2020-12-17
Decided: 2026-01-22
Vaccine: influenza
Vaccination date: 2019-11-13
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 55195

AI-assisted case summary:
On December 17, 2020, Don Brown, then 66, filed a petition alleging that a senior-dose influenza vaccine administered in his left arm on November 13, 2019 caused a shoulder injury related to vaccine administration.

Mr. Brown had no documented history of left shoulder pain before the shot. He described immediate pain, tingling, and arm symptoms during the injection and later reported the event to VAERS. Medical records in early 2020 connected his shoulder pain and tingling to the November 2019 flu shot, and Iowa Orthopaedic Center records likewise recorded left arm pain beginning with the vaccination.

Respondent contested entitlement, arguing that onset, range of motion, symptom localization, and possible carpal tunnel syndrome defeated a Table SIRVA claim. Chief Special Master Brian H. Corcoran disagreed. He found that the onset evidence satisfied the 48-hour Table window, reduced range of motion was documented, the shoulder remained the primary site of pain despite distal tingling, and carpal tunnel syndrome did not better explain the shoulder injury. On January 22, 2026, Mr. Brown was awarded $55,000.00 for pain and suffering and $195.00 in unreimbursed expenses, for a total of $55,195.00.

Theory of causation field:
Senior-dose influenza vaccine November 13, 2019 at age 66 causing left Table SIRVA; onset during/same day. COMPENSATED. Respondent challenged onset, reduced ROM, localization, and carpal tunnel alternative; Chief SM Corcoran found the Table criteria satisfied. Award $55,000 pain/suffering + $195 expenses = $55,195. Petition December 17, 2020; decision January 22, 2026.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01891-0
Date issued/filed: 2026-02-24
Pages: 16
Docket text: PUBLIC ORDER/RULING (Originally filed: 01/22/2026) regarding 46 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (cr) Service on parties made.
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Case 1:20-vv-01891-UNJ Document 51 Filed 02/24/26 Page 1 of 16
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1891V
DON BROWN,
Chief Special Master Corcoran
Petitioner,
v.
Filed: January 22, 2026
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices, Washington, DC, for Petitioner.
Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On December 17, 2020, Don Brown 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on
November 13, 2019. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
Because the parties could not informally resolve the issue of entitlement and
damages, they were ordered to file briefs setting forth their respective arguments and
1 Because this Ruling/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 Ruling/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-01891-UNJ Document 51 Filed 02/24/26 Page 2 of 16
were notified that I would resolve this dispute via an expedited “Motions Day” hearing,
which ultimately took place on December 19, 2025. As discussed below, I find Petitioner
entitled to compensation, and award him $55,000.00 for actual pain and suffering, plus
$195.00 (undisputed) for unreimbursable medical expenses, for a total of $55,195.00.
I. Procedural History
On June 27, 2023, Respondent issued his Vaccine Rule 4(c) Report contesting
entitlement in this case. ECF No. 29. On October 5, 2023, I issued a Scheduling Order
setting forth my preliminary findings on the case, and encouraged the parties to consider
settlement, but they were unsuccessful in their efforts. ECF No. 30. Thus, on April 8, 2024,
Petitioner filed her Motion for Ruling on the Record and Brief in Support of Damages
(“Mot.”), and Respondent filed a Response on June 7, 2024 (“Opp.”). Petitioner filed a
reply (“Reply”) memorandum on July 8, 2024. ECF Nos. 36-41. I heard arguments from
both parties during a Motions’ Day Damages hearing held on December 19, 2025.
II. Relevant Medical History
A complete recitation of the facts can be found in the medical records, the Petition,
declarations and affidavits, the parties’ respective pre-hearing filings, and in
Respondent’s Rule 4(c) Report.
In summary, Mr. Brown was a 66-year-old shipping supervisor when he received
a flu vaccine3 in his left deltoid on November 13, 2019, through the Polk County, Iowa,
Health Department. Ex. 1 at 1-2. Mr. Brown did not have a history of left shoulder pain.
Mr. Brown noted in his affidavit,
On November 13, 2019[,] at approximately 3:30 PM, I sought to obtain a
seasonal flu vaccine from the 1907 Carpenter Avenue office of the Polk
County Health Department, while on break from my position as a
cashier/salesperson at Menards Hardware in Clive, Iowa. After filing out the
normal intake form, I was called to the room where the person who was to
administer the vaccine asked if I wanted the senior strength vaccine, which
I had declined in the previous visits to that office.
I agreed to accept the senior vaccine, not suspecting the consequences that
would ensue immediately following the administration of the shot into my
left shoulder. The sensation of the fluid entering, then traveling through my
arm started. This tingling feeling was something that I had never
3 Mr. Brown was administered a double-strength vaccine designed for people over the age of 65. Ex. 1 at
2.
2

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experienced before. I began to worry about whether this dosage was too
strong for my system. I drove back to work, feeling even more stress. I
hoped that I could continue performing my functions at work. I tried to
reconcile my feelings, saying that it would subside by the evening, but it did
not. Later I told my wife what had happened and how it was affecting me.
There was not only the pain of the injection, but that sensation of having the
vaccine tingling down my arm to my fingers.
Shortly after, I called the Health Department explaining that my adverse
reaction to the vaccine, the tingling, the feeling that the vaccine was
traveling through my arm, was something I was still experiencing. They
referred me to the VAERS.org website. I requested a form that was sent to
me for completion. This form was completed and sent on 11/25/19.
Ex. 6 at 1-2.
On December 10, 2019 (27 days after vaccination), Mr. Brown saw his primary
care provider (“PCP”), Timothy Gerdis, D.O., with complaints of numbness and tingling in
his left arm since vaccination. Ex. 4 at 12. Mr. Brown reported that the injection had been
painful, and that he had “persistent numbness and tingling in his left shoulder which
extend[ed] down to his left elbow and wrist and fingers” since the vaccination. Id. He also
stated he was advised by the local health department to submit a VAERS report. Id. Dr.
Gerdis noted that:
[Petitioner] went to the Public Health Department on November 13, 2019 and had
pain over 65-year-old flu vaccine which is double the dose. Since that time he’s
had persistent numbness and tingling in his left shoulder which extends down to
his left elbow and wrist and fingers. He has never experienced any weakness in
his left upper extremity. He has never noted any swelling or any bruising or any
redness. Patient did call the [H]ealth Department and they sent him an email
explaining to him that he should fill out an adverse reaction form.
Id. at 13. On physical examination, Mr. Brown displayed full range of motion (“ROM”)
without difficulty and normal strength in his left arm. Ex. 4 at 13. Dr. Gerdis’s assessment
was “adverse effect of vaccine,” and he recommended ice and nonsteroidal anti-
inflammatory drugs for pain. Id. Petitioner declined a prescription for prednisone in favor
of over-the-counter pain medication. Id.
Slightly more than a month later, on January 13, 2020, Mr. Brown saw neurologist
Michael Jacoby, M.D., for an evaluation of his left arm. Ex. 2 at 6. Petitioner stated that
he “noticed a tingling sensation in [his] arm” as he received the vaccination and a tingling
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and numbness “in the upper arm through to the fingers.” Id. Mr. Brown described tingling
as intermittent, typically lasting five to 15 minutes. Id. Dr. Jacoby also noted that Petitioner
reported “[p]ain like the shot [which] travels down the arm.” Id. On examination, Mr. Brown
exhibited full strength in his extremities. Id. at 8. Dr. Jacoby’s assessment was “unusual
numbness sensation of the left arm” of unknown cause. Id. Dr. Jacoby did not feel there
was a neuroanatomic explanation for Petitioner’s sensation and noted that it was
“[p]erhaps some type of recurrent central unpleasant memory state. Brachial plexus
problem or bone possible. Perhaps this is coincidence [i.e.] association with injection but
underlying arm pathology.” Id. Dr. Jacoby recommended physical therapy (“PT”). Id.
On January 20, 2020, Mr. Brown underwent upper arm electromyography (“EMG”)
testing. Ex. 2 at 11. The results revealed a left median neuropathy at the wrist compatible
with left carpal tunnel syndrome (“CTS”), and PT was recommended. Id. at 8, 12.
On February 4, 2020, Mr. Brown saw Kerri Hardy, PT, DPT, at Core Physical
Therapy for an initial evaluation. Ex. 3 at 7. Petitioner reported his pain was currently a
5/10, and was a 0/10 at best, and an 8/10 at worst. Id. He again reported painful tingling
from shoulder to fingers intermittently (“like getting the shot all over again”) since his
vaccination. Id. The tingling radiated into his fingers and thumb. Id. On physical
examination, Mr. Brown’s cervical ROM was reduced at 75-80%, but his upper extremity
shoulder active ROM was within normal limits. Id. at 8. Petitioner had minimal to moderate
decreased “mobility/resiliency” in his left cervical collar into his left shoulder girdle. Id. The
assessment was “impaired range of motion, strength, and joint mobility which is
consistent with the listed diagnosis,” and PT was recommended one to two times a week
for eight weeks.
On February 10, 2020, Mr. Brown returned to Dr. Gerdis for evaluation of a pinched
nerve in his lower back, and was diagnosed with acute left-sided back pain. Ex. 4 at 10-
11. On February 14, 2020, Mr. Brown requested a note from his PCP for work restrictions
due to his back pain. Id. at 8. Petitioner returned on February 20, 2020, for further
evaluation of his low back pain, which he attributed to a lifting injury three weeks prior. Id.
at 4. Mr. Brown did not discuss any shoulder pain at this appointment, and Dr. Steinmetz
recommended PT for Petitioner’s lower back. Id. at 7.
On February 25, 2020, Mr. Brown returned to Core Physical Therapy for ongoing
treatment of his left shoulder pain. Ex. 3 at 12. At that time, Therapist Hardy noted there
was “[s]till no real change in the arm. It kicks in randomly and just hasn’t changed much.”
Id.
On March 26, 2020, Mr. Brown returned to Mercy One Ruan Neurology Care for
an MRI of the left upper extremity. Ex. 2 at 9. The clinical record notes “numbness, tingling
and weakness left arm, gradually worsening since shot in left arm in 11/2019.” Id.
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(emphasis added). The impression on the MRI report noted that “no left brachial plexus
abnormality is identified.” Id.
On May 20, 2020, Mr. Brown saw orthopedic surgeon Stephen A. Ash, M.D., at
Iowa Ortho for an evaluation of his left arm. Ex. 5 at 8. Petitioner complained of
intermittent numbness and tingling and pain in his left arm when reaching and lifting. Id.
Dr. Ash noted that:
[Petitioner] complains of some numbness and tingling in the LEFT upper
extremity, as well as shoulder pain that started in November 2019 after he
had a flu shot. He complains of intermittent numbness that comes and goes.
The LEFT shoulder has been painful at times for reaching and lifting
activities. He saw a physical therapist for the shoulder and has worked on
some exercises.
Id. On physical examination, Mr. Brown did exhibit a decreased range of motion of the
left shoulder, although he had “minimal pain” with Hawkins and Neer impingement
maneuvers and a negative Spurling’s test on the left. Id. Dr. Ash’s assessment was left
shoulder pain of unspecified chronicity, pain in unspecified limb, and left shoulder
impingement syndrome and left CTS. Id. at 10. Dr. Ash recommended that Mr. Brown
obtain an MRI tailored to his shoulder. Id. However, given that Petitioner had good
strength, and it was unlikely there was any significant rotator cuff tearing, Mr. Brown
elected to wait. Id. Dr. Ash discussed future treatment, including more PT and/or a
cortisone injection if Petitioner’s symptoms did not improve. Id. Dr. Ash determined that,
because of the COVID-19 Pandemic, it was better for Mr. Brown to wait before engaging
in further in-person physical therapy. Id. Dr. Ash further noted that he would “see
[petitioner] back on an as-needed basis in a month or 2 if he is not improving at which
time we may consider a subacromial injection on the LEFT if he still has shoulder pain.”
Id.
On June 10, 2020, Mr. Brown returned to Iowa Ortho to see orthopedic surgeon
and hand and upper extremity specialist, Benjamin Paulson, M.D. Ex. 5 at 11. Dr. Paulson
noted that
[Petitioner] is here today with complaint of numbness and tingling into this
LEFT arm…He was referred here by Dr. Ash, who he is seeing for shoulder
pain. This all seemed to start after getting a flu shot in November. His pain
seems to go up and down his arm. This seems to be consistent since
November. He has no treatment for this. No specific trauma.
Id. Mr. Brown reported that his left arm pain was now at a severity of 4/10. Id. He also
described numbness and tingling in his left arm, and pain that “seems to go up and down
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[the] arm.” Id. On examination, Mr. Brown had normal strength and ROM in his upper left
extremity, and a positive left Tinel’s. Id. at Dr. Paulson’s assessment was left CTS, and
he recommended that Petitioner wear a CTS brace at night. Id. at 13-14.
There is a subsequent, two year and four-month gap in the filed medical records
On October 27, 2022, Mr. Brown returned to Dr. Paulson. Ex. 7 at 1. At that time, Dr.
Paulson wrote that he had seen Petitioner in the past for “for LEFT CTS with bracing,
which resolved his pain. He states his whole arm pain and tingling has returned today.”
Id. Dr. Paulson’s assessment was left CTS and left arm pain. Id. After discussing his
options, Mr. Brown decided that he would continue with PT. Id.
Mr. Brown started PT at Select Physical Therapy on October 27, 2022. Ex. 10 at
2. His initial diagnosis was left CTS with upper extremity pain and tingling. Id. Mr. Brown
reported his pain was a 3/10 currently, a 2/10 at best, and a 4/10 at worst. Id.
Mr. Brown attended 11 sessions between October 27 and November 23, 2022. Id.
at 2-33. On November 28, 2022, Petitioner saw Dr. Paulson again. Ex. 7 at 4. Mr. Brown
reported his symptoms were now a 0/10 in severity. Id. He was doing well and finding
relief from his symptoms with PT with “little to no pain.” Id. Petitioner further denied any
numbness and tingling. Id. His diagnosis remained CTS. Id. at 5. Petitioner attended an
additional eight PT sessions between December 1, 2022, and was discharged on
December 25, 2022. Ex. 10 at 36-62.
On December 13, 2022, Mr. Brown returned to Dr. Ash for a follow-up appointment.
Ex. 7 at 6. Petitioner reported continued intermittent left shoulder pain with reaching and
lifting activities. Id. On examination, he had 165 degrees of active elevation bilaterally and
45 degrees of external rotation bilaterally. Id. at 7. He had mild pain with Hawkins and
Neer impingement maneuvers, but his acromioclavicular (“AC”) joint was nontender and
he had a negative Spurling’s maneuver on the left. Id. Dr. Ash noted that Petitioner’s left
shoulder x-ray showed some AC joint narrowing, a type II acromion and trace
glenohumeral joint space narrowing. Id. His diagnosis was left shoulder pain and “left
shoulder impingement syndrome versus possible cuff tear.” Id. Dr. Ash discussed the
possibility of rotator cuff pathology and wanted Petitioner to undergo additional imaging
to assess the left rotator cuff. Id.
On January 3, 2023, Mr. Brown underwent a left shoulder MRI which revealed
“potentially symptomatic os acromiale given subchondral edema along both sides of the
synchondrosis as well as the adjacent AC joint,” and an intact rotator cuff. Ex. 8 at 4. Dr.
Ash noted that Petitioner had degenerative changes at the AC joint, an intact rotator cuff,
and no evidence of a displaced labral tear. Id. at 1. There were mild degenerative changes
of the shoulder and no evidence of abnormality in the deltoid or soft tissue. Id. On
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examination, Mr. Brown’s ROM remained the same bilaterally. Id. Petitioner’s diagnosis
was “left shoulder pain, question component of impingement syndrome and mild
osteoarthritis. Asymptomatic AC joint arthrosis and os acromiale.” Id. Mr. Brown did not
feel his symptoms were bad enough to regularly take anti-inflammatories or consider an
injection, and Dr. Ash wrote that he did not “see something structural on the MRI that
needs to be addressed.” Id. The plan was for Petitioner return on an as-needed basis. Id.
Mr. Brown returned to Iowa Ortho over one year later, on February 26, 2024, and
saw Dr. Paulson for his left arm. Ex. 8 at 5. Petitioner continued to report numbness and
tingling in his thumb, second, third, and fourth digits of his left hand and of the left
shoulder. Id. Dr. Paulson wrote that Petitioner’s symptoms “started shortly after he
received a vaccination in the left arm in 2019.” Id. On examination, Mr. Brown had a
positive Tinel’s at his left wrist. Id. at 6. Dr. Paulson’s assessment remained left CTS;
treatment options, including a steroid injection or surgical management were discussed.
Id.
III. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No.
90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
7

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establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
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(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
IV. Ruling on Entitlement and Damages
After listening to the arguments of both sides, I issued an oral ruling on both
entitlement and damages constituting my findings of fact and conclusions of law, pursuant
to Section 12(d)(3)(A), at the conclusion of the December 19, 2025 hearing. An official
recording of the proceeding was taken by a court reporter. I hereby fully adopt and
incorporate that oral ruling as officially recorded.
A. Entitlement
Respondent has contested entitlement, arguing that there is not preponderant
evidence to show that (1) Petitioner experienced shoulder pain within 48 hours of vaccine
administration, (2) Petitioner had documented limited range of motion in his affected
shoulder, and (3) Petitioner’s pain and reduced range of motion were limited to the
shoulder in which the vaccine was administered. Opp. at 8-15. He also maintains that
Petitioner’s CTS diagnosis is an alternative explanation for his presentation.
a. Onset
Regarding onset, Respondent argues that “[a]t best, Petitioner’s medical records
reflect an equivocal onset of intermittent pain some time ‘after’ vaccination.” Opp. at 11.
However, the record offers more discernable context regarding onset than Respondent
contends. Thus, on December 10, 2019, Petitioner presented to MercyOne Clive Family
Medicine Clinic, representing as follows:
Patient states having the flu shot on Nov 13th and since then he has been
experiencing numbness and tingling on the left arm . . . Patient states he
went to the Public Health Department on November 13, 2019 and had pain
over 65-year-old flu vaccine which is double the dose. Since that time he’s
had persistent numbness and tingling in his left shoulder which extends
down to his left elbow and wrist and fingers.
Ex. 4 at 13. Then, on January 13, 2020, Petitioner reported to MercyOne Ruan Neurology
Care for an evaluation of his left arm. Ex. 2 at 6. The record from this visit states:
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History of Present Illness… 66 right handed male presents for evaluation
of let arm. Started after a flu vaccine November. Noticed a tingling sensation
in the arm as the shot was administered on November 13, 2019. Since, has
noticed same tingling sensation in the arm with numbness and weakness in
the upper arm throughout fingers… Pain like the shot travels down the arm.
Comments about weakness during this time and has noticed that with
numbness doesn’t’ have the ability to lift “up to my capacity . . . “ Has not
improved since the event…
Id. A February 4, 2020 physical therapy note states “Date of onset: 11-13-2019 …
Mechanism of Injury: got a senior strength flu shot and has felt painful and tingling form
shoulder to fingers intermittently ever since.” Ex. 3 at 7. An MRI report from the following
month states “Clinical Indication: 66-year old; numbness, tingling and weakness left arm
gradually worsening since shot in left arm in 11/2019.” Ex. 2 at 9 And a May 20, 2020
record from Iowa Ortho states “History of present illness: 1. Left arm pain. Onset:
11/13/209 . . . He complains of some numbness and tingling in the LEFT upper extremity,
as well as shoulder pain that started in November 2019 after he had a flu shot.” Ex. 5 at
8.
Witness statements are consistent. Petitioner describes the tingling and pain
sensation in his shoulder as the vaccine was injected into his left arm. Ex. 6 at 1. He adds
that “[t]here was not only the pain of the injection, but that sensation of having the vaccine
tingling down my arm to my fingers.” Id. He completed a VAERS form on November 25,
2019, just 12 days post vaccination. Id. And the lack of concrete instances in which
Petitioner stated his onset of pain began “within forty-eight hours of vaccination” is hardly
dispositive. As noted in the factual summary above, there are several references in the
medical records that specifically list the date of onset as November 13, 2019, the date of
vaccination. And there are no conflicting statements or reports in the record that set the
onset of Petitioner’s shoulder pain outside the 48-hour window. The weight of this
evidence favors a Table-consistent onset.
Respondent also seems to argue that because Petitioner’s complaints of shoulder
pain are coupled with complaints of numbness and tingling in the arm, that it somehow
discounts his complaint of immediate shoulder pain. This is simply not true. The QAI for
SIRVA simply states that “pain occurs within the specified time-frame…” The fact that Mr.
Brown’s complaints of shoulder pain are accompanied by his complaints of other
symptoms does not eliminate the presence of shoulder pain complaints. Thus, I find that
the evidence demonstrates that Mr. Brown did complain of shoulder pain as a result of
his vaccination, and identified onset as beginning within the specified time frame as
described above. Thus, the weight of this evidence favors a Table-consistent onset.
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b. Reduced range of motion
Respondent has also argued that Petitioner did not have documented limited range
of motion in his affected shoulder. However, the record does document, on at least one
occasion, that Mr. Brown presented with a reduced range of motion of his affected
shoulder. For example, in Ex. 3 at 9, the record states that Mr. Brown “presents with
impaired range of motion, strength, and joint mobility which is consistent with the listed
diagnosis.” In addition, in Ex. 3 at 8, PT Hardy states, “[t]he patient presents with impaired
range of motion, strength, and joint mobility which is consistent with the listed diagnosis
[Pain in left arm].” Id. at 17 (emphasis added). Also, Petitioner’s orthopedist measured
the range of motion of Petitioner’s left shoulder in Ex. 5, page 9, and range of motion
deficits of the left shoulder are noted. As I discussed during the hearing, the QAI only
states that reduced range of motion must be shown to exist at some point, and be limited
to the shoulder in which the intramuscular vaccine was administered. There is no
qualification as to the number of times that reduced range of motion must be present. I
thus find that Petitioner has satisfied this criterion for a SIRVA injury.
c. Pain and Reduced Range of Motion Not limited to Shoulder
Respondent’s other Table objection - that Petitioner’s pain and reduced range of
motion is not limited to the shoulder in which the vaccine was administered - is a stronger
argument, but ultimately not a successful objection. A close look at the record
demonstrates that Petitioner’s symptomology included areas outside the left deltoid
region and reflected complaints of numbness and tingling, not pain. See e.g., Ex. 3 at 12
(complaints of left arm numbness and tingling extended into the elbow, wrist, and fingers);
Ex. 3 at 6 (complaints of left arm tingling which extended into his left hand, fingers, and
thumb). The references to pain and limited range of motion are more specifically limited
to the left shoulder. See e.g. Ex. 3 at 7 (“L[eft] arm pain in muscle below shoulder/in L[eft]
upper arm – tingling radiates down L[eft] arm into fingers and or thumb.) (emphasis
added).
In addition, Petitioner was assessed with left shoulder impingement syndrome, a
common symptom of a SIRVA injury. Ex. 5 at 10. And it appears from the record that
many of his left arm complaints could be deemed to have started with his shoulder. See
supra, Ex. 3 at 7; Ex. 5 at 89 (“He complains of some numbness and tingling in the LEFT
upper extremity, as well as shoulder pain that started in November 2109 after he had a
flu shot … The LEFT shoulder has been painful at times for reaching and lifting activities”).
To the extent that complaints of pain related to areas outside the deltoid region, they bear
on damages – but for purposes of entitlement, the totality of the evidence still establishes
pain primarily in the affected shoulder.
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d. Alternative explanation for Petitioner’s symptoms
Finally, Respondent argues that Petitioner’s CTS explains his symptoms, such as
the numbness and tingling in his left shoulder, down to his arm and hand. Opp. at 13. But
this diagnosis can be differentiated from the SIRVA evident in this record. While Mr.
Brown may have had CTS, its diagnosis and treatment are distinguishable from his
shoulder injury and do not impede his SIRVA claim. I thus find that Petitioner has satisfied
the QAI criteria for a SIRVA claim.
Even if a petitioner has satisfied the requirements of a Table injury or established
causation-in-fact, he or she must also provide preponderant evidence of the additional
requirements of Section 11(c), i.e., receipt of a covered vaccine, residual effects of injury
lasting six months, etc. See generally § 11(c)(1)(A)(B)(D)(E). But those elements are
established or undisputed. Thus, based upon all of the above, Petitioner has established
that he suffered a Table SIRVA, satisfying all other requirements for compensation.
B. Damages
a. Legal Standard
Compensation awarded pursuant to the Vaccine Act may 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). 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 precise 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) (“Awards 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
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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)).
A special master may also look to prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own
experience adjudicating similar claims. 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). Importantly, however, it must also be stressed that pain and suffering
is not determined based on a continuum. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (2013).
b. Appropriate Compensation in this SIRVA Case
i. Awareness of Suffering
Neither party disputes that that Mr. Brown had full awareness of his suffering, and
I find that fact is supported by the record evidence.
ii. Severity and Duration of Pain and Suffering
As I noted during the Motions Day hearing, and as is incontestable from the record,
Mr. Brown’s SIRVA did not require surgical intervention. And it has been the consistent
practice in SPU matters involving SIRVA cases not resulting in surgery to award less than
six figures for pain and suffering, absent special circumstances. Although Petitioner has
requested $110,000.00 in pain and suffering, I do not find that the necesssary
extraordinary circumstances exist in this case to justify such an award.
Mr. Brown’s SIRVA injury appears to have been mild to moderate, characterized
by intermittent pain and weakness, limited physical therapy, and no steroid injections.
While Mr. Brown reported his injury fairly quickly (just 27 days after vaccination), some of
his more severe symptoms experienced later in treatment appeared to be associated with
comorbid conditions that cannot be attributed to his SIRVA – his CTS, as well as lower
back pain and wrist pain (Ex. R at 14-15). There was also a two-year gap in treatment
(beginning not long after the six months, post-onset “severity cutoff”) which is
consequential, and highlights the overall moderate nature of the injury at issue, since
Petitioner was able to tolerate it for so long after some early treatment. I conclude instead
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that the bulk of Mr. Brown’s SIRVA-associated pain likely resolved before this long gap in
treatment.
Petitioner has cited to two cases in support for his claimed amount for pain and
suffering, Danielson v. Sec’y of Health & Human Servs., No. 18-1878, 2020 WL 8271642
(Fed. Cl. Spec. Mstr. Dec. 29, 2020) and Cooper v. Sec’y of Health & Human Servs., No.
16-1387, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018). I first note that both the
Danielson and Cooper cases were issued before the Motion’s Day procedure was
instituted approximately five years ago. Since then, hundreds of SIRVA decisions have
been issued to hopefully assist the parties with their informal settlement discussions.
These older SIRVA decisions thus reflect more of an ad hoc analysis that is not in line
with the reasoning from more recent decisions.
In addition, the amount awarded in the Danielson case is too high, as that petitioner
had a more severe injury and more treatment. For example, the Danielson petitioner
received three steroid injections, underwent many chiropractic and PT appointments, and
experienced daily pain for more than two years. The petitioner in that case reported
significant levels of pain of eight and nine out of ten, with rest and activity respectively.
Danielson, 2020 WL 8271642 at *8. The Danielson petitioner also received an award for
future pain and suffering demonstrating the ongoing nature of her injury. Id.
In the Cooper case, a petitioner was awarded $110,000.00 in damages for past
pain and suffering. But that petitioner had a more severe injury and more treatment. The
Cooper petitioner reported very high levels of pain (documented as between a 7/10 and
10/10) during PT, and found little relief despite extensive PT. Cooper, 2018 WL 6288181
*4.
By contrast, Respondent cites to 10 cases,5 reflecting an awards range from
$37,500.00 to $65,000.00. Although Respondent never proposed in briefing a precise
counter-figure for pain and suffering, at hearing he agreed that an award of $37,500.00,
would be appropriate for Mr. Brown in this case.
5 Valdez v. Sec’y of Health & Human Servs., 21-394V, 2024 WL 1526536 (Fed. Cl. Spec. Mstr. Feb. 28,
2024), McGraw v. Sec’y of Health & Human Servs., 21-72V, 2024 WL 1160065 (Fed. Cl. Spec. Mstr. Feb.
15, 2024), Ramos v. Sec’y of Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Jan. 4,
2021), Mejias v. Sec’y of Health & Human Servs., No. 19-1944, 2021 WL 5895622 (Fed. Cl. Spec. Mstr.
Nov. 11, 2021), Kleinschmidt v. Sec’y of Health & Human Servs., No. 20- 0680V, 2023 WL 9119039 (Fed.
Cl. Spec. Mstr. Dec. 5, 2023), Green v. Sec’y of Health & Human Servs., No. 20-0378V, 2023 WL 6444421
(Fed. Cl. Spec. Mstr. Sept. 1, 2023), Aponte v. Sec’y of Health & Human Servs., No. 20- 1031V, 2022 WL
4707180 (Fed. Cl. Spec. Mstr. Sept. 2, 2022), Klausen v. Sec’y of Health & Human Servs., No. 19- 1977V,
2023 WL 2368823 (Fed. Cl. Spec. Mstr. Feb. 2, 2023), Foster v. Sec’y of Health & Human Servs., No. 21-
0647V, slip op. (Fed Cl. Spec. Mstr. Feb. 6, 2024), Henderson v. Sec’y of Health & Human Servs., No. 20-
1261V, 2023 WL 2728778 (Fed. Cl. Spec. Mstr. Mar. 31, 2023).
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Of the cases referenced by Respondent, I find that Valdez and Henderson are the
best comparables. The Valdez petitioner had a similar presentation to Mr. Brown, where
in addition to reporting shoulder pain, she also reported that she was experiencing pain
that radiated down her arm. 2024 WL 1526536, *2. The Valdez petitioner had a moderate
SIRVA injury and underwent conservative treatment. Id. at 3. And similar to Mr. Brown,
the Valdez petitioner declined a steroid injection that was offered to her, stating that “her
symptoms [were] not severe.” Id. at 3-4. Ms. Valdez was awarded $35,000.00 in pain and
suffering. Because Mr. Brown’s case is also case involving very conservative treatment,
i.e., a seven-month treatment course, three steroid injections, and only eight physical
therapy sessions and medication, I do find that the Valdez case is a very good comparable
case. Similarly, in Henderson, a petitioner suffered a moderate SIRVA injury for
approximately 11 months. Simultaneously, she exhibited pain and tightness in other areas
– such as her neck, back, and thighs - which appeared unrelated to her SIRVA injury. The
Henderson petitioner was awarded $65,000.00, for her pain and suffering.
Based on all the circumstances and evidence submitted, I find that Petitioner’s past
pain and suffering warrants an award of $55,000.00.
iii. Unreimbursable expenses
The parties have agreed that Petitioner has submitted preponderant evidence to
support $195.00 in past out-of-pocket expenses related to his shoulder injury, and I shall
award that amount. Opp. at 24-25.
Conclusion
Based on my consideration of the complete record as a whole and for the reasons
discussed in my oral ruling, pursuant to Section 12(d)(3)(A), I find that Petitioner is
entitled to compensation and that $55,000.00, represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.6
Accordingly, I award Petitioner a lump sum payment of $55,195.00
(consisting of $55,000.00 for his actual pain and suffering plus $195.00, for
unreimbursable medical expenses), to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This
6 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)).
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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 the Decision.7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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