VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01970
Package ID: USCOURTS-cofc-1_20-vv-01970
Petitioner: Don Shields
Filed: 2020-11-26
Decided: 2024-12-30
Vaccine: influenza
Vaccination date: 2018-10-24
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 95000

AI-assisted case summary:
On December 23, 2020, Don Shields filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine administered on October 24, 2018. Petitioner, who was 60 years old at the time, received the vaccine in his left shoulder. The respondent was the Secretary of Health and Human Services. Petitioner argued that he met the criteria for a Table SIRVA and requested an award of $125,000.00 for actual pain and suffering. The respondent argued that Petitioner failed to establish that the onset of his injury occurred within 48 hours of vaccination, and if entitlement was found, proposed an award of $75,000.00 for past pain and suffering. The public decision does not describe the specific clinical story leading up to the vaccination, nor does it name any specific medical experts. The Special Master, Brian H. Corcoran, found that Petitioner met the criteria for a Table SIRVA, establishing entitlement to compensation. The decision noted that Petitioner's medical history was non-contributory and that he had no prior history of shoulder issues that would explain his symptoms. The Special Master found that the onset of Petitioner's left shoulder pain occurred within 48 hours of vaccination, that the pain was limited to the left shoulder, and that there was no other condition to explain the symptoms. The six-month severity requirement was also met. After finding entitlement, the Special Master addressed damages. Petitioner requested $125,000.00, while the respondent proposed $75,000.00. The Special Master reviewed the medical records, which indicated treatment including two steroid injections, physical therapy, and arthroscopic surgery. The Special Master considered the severity, duration, and treatment course, comparing the case to prior SIRVA awards. Ultimately, the Special Master awarded Don Shields $95,000.00 for past pain and suffering. The decision was issued on December 30, 2024.

Theory of causation field:
Petitioner Don Shields, age 60, received an influenza vaccine on October 24, 2018, in his left shoulder. He alleged a Shoulder Injury Related to Vaccine Administration (SIRVA). The Special Master, Brian H. Corcoran, found that Petitioner met the criteria for a Table SIRVA, establishing entitlement to compensation. The key elements considered were: (i) no prior history of shoulder dysfunction explaining the symptoms; (ii) onset of pain within 48 hours of vaccination, which the Special Master found to be established by a preponderance of the evidence despite some conflicting medical record entries and a delay in seeking treatment; (iii) pain and reduced range of motion limited to the left shoulder; and (iv) no other condition explaining the symptoms. The six-month severity requirement was also met. Petitioner requested $125,000 for pain and suffering, while Respondent proposed $75,000. The Special Master awarded $95,000.00 for past pain and suffering, citing comparable cases, particularly Hunt v. Sec’y of Health & Hum. Servs., which also resulted in a $95,000 award for similar treatment duration and outcomes. The decision was issued on December 30, 2024. Petitioner's counsel was Sean Franks Greenwood, and Respondent's counsel was Sarah Black Rifkin.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01970-0
Date issued/filed: 2024-12-30
Pages: 17
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/26/2024) regarding 41 Ruling on Entitlement,DECISION of Special Master, Order on Motion for Ruling on the Record ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-01970-UNJ Document 49 Filed 12/30/24 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1970V
DON SHIELDS, Chief Special Master Corcoran
Petitioner, Filed: November 26, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Sean Franks Greenwood, The Greenwood Law Firm, Houston, TX, for Petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On December 23, 2020, Don Shields 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”) caused by an influenza (“flu”) vaccine administered on October
24, 2018. Pet. at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $95,000.00 for past/actual pain and suffering.
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).

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I. Relevant Procedural History
After completion of records filing and Respondent’s medical review, the parties
attempted to informally resolve this matter but were unsuccessful. ECF Nos. 26-30, 34-
37. Petitioner thereafter submitted a motion for a ruling on the record regarding
entitlement and damages on October 17, 2023. Mot., ECF No. 39. Petitioner argued that
he meets the Table definition of a SIRVA and requested an award of $125,000.00 for
actual pain and suffering. Id. at 12.
Respondent reacted to Petitioner’s entitlement and damages contentions on
November 17, 2023. Opp., ECF No. 40. Respondent argued that Petitioner has failed to
establish that the onset of his injury occurred within 48 hours of the subject vaccination,
and thus his Table claim must fail. Id. at 7. Otherwise, if Petitioner was found entitled to
damages, Respondent argued that a lesser award of $75,000.00 was appropriate for past
pain and suffering. Id. at 13. Petitioner did not file a reply thereafter. This matter is now
ripe for resolution.
II. Petitioner’s Medical History
Petitioner’s medical history was non-contributory. See Ex. 3 at 15, 19, 34-36, 42-
44; Ex. 5 at 50. At age 60, during a visit with his primary care provider (“PCP”) for
unrelated conditions, Petitioner received the subject flu vaccine on October 24, 2018, in
his left shoulder. Ex. 3 at 38; Ex. 2 at 3; Ex. 9 at 3. Petitioner attested that “[a]fter the
vaccination, [he] had severe pain in [his] left arm that developed overnight and persisted
for over a month.” Ex. 1 ¶ 3. He described his shoulder pain and stated it “felt like a poking
needle sensation.” Id.
Approximately one month post-vaccination (on November 26, 2018), Petitioner
followed up with his PCP for unrelated conditions, but made no mention of his shoulder
pain at this time. Ex. 3 at 49. He explains this omission in his affidavit, noting that the
appointment was “to follow up on medication [he] was taking for a dermatologic condition.”
Ex. 1 ¶ 4. He also “thought the pain was a normal reaction to the vaccine and that it would
eventually subside[.]” Id.
On February 5, 2019 (now roughly three-and-a-half-months post vaccination),
Petitioner returned to his PCP complaining of “persistent left shoulder deltoid pain.” Ex. 3
at 51. Specifically, Petitioner reported “continued left shoulder pain since getting [a] flu
shot into left upper deltoid region, and describes a ‘poking neddle’ [sic] sensation to the
area.” Id. An examination of his left shoulder showed normal strength and full range of
motion (“ROM”). Id. at 52. Petitioner was assessed with shoulder pain and was told to
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take ibuprofen. Id. An x-ray performed the next day (February 6, 2019), revealed
“[m]ultiple areas of nonspecific subchondral cystic change.” Id. at 77.
Later that month, on February 21, 2019, Petitioner saw an orthopedist and reported
a “3 month history of atraumatic left shoulder pain.” Ex. 3 at 73. Petitioner felt that “his
pain began after receiving a flu shot in the arm in November.” Id. He explained that the
pain was in his entire shoulder and that it was aggravated with reaching overhead and
behind his back; he described popping and catching in his shoulder. Id. An examination
revealed reduced active ROM, mild tenderness at the acromioclavicular (“AC”) joint, and
positive impingement signs. Id. at 74. The orthopedist reviewed Petitioner’s x-ray results
and opined the findings were consistent with mild AC joint arthrosis. Id. Petitioner was
assessed with impingement syndrome and primary osteoarthritis (“OA”) of the left
shoulder. Id. He received a steroid injection and was referred to physical therapy (“PT”).
Id. at 75.
Petitioner underwent an initial PT evaluation on March 6, 2019. Ex. 5 at 5. The
injury date is inexplicably listed as “9/26/2017.” Id. However, the chief complaint section
states that “on Oct[.] 26, 2018[, Petitioner] received a flu shot and continued to notice L
arm pain and soreness for over a month.” Id. Petitioner noted he experienced a “minimal
change in symptoms” after receiving his prior steroid injection. Id. He rated his current
pain at a 6/10, with a range of 5-7/10. Id. The “mechanism of injury” was listed as “after
an injection into the arm for the flu shot.” Id. Upon examination, Petitioner exhibited
positive impingement signs and “slight deficits in L shoulder ROM and strength,” but his
external rotation was better on his left side compared to the right. Id. at 6. Four weeks of
PT (three times per week) was recommended. Id. at 7. By Petitioner’s second visit on
March 12, 2019, the injury date was changed to “10/26/2018.” Id. at 10.
On March 28, 2019, Petitioner returned to his orthopedist’s office reporting ongoing
“pain with abduction and less with flexion.” Ex. 3 at 69. Petitioner noted he had been
attending PT twice per week but had been “experiencing pain with therapy and [was] not
willing to attend as advised.” Id. at 70. He demonstrated reduced ROM and received a
second steroid injection. Id. at 69-70. Petitioner also agreed to attend PT as prescribed
and to “be more aggressive with home exercises.” Id. at 70.
Petitioner returned to his orthopedist on April 19, 2019, with a “deep, stabbing like
pain in the anterior aspect of the shoulder with forward flexion and overhead activities.”
Ex. 3 at 66. The orthopedist noted that Petitioner’s ROM “ha[d] improved to near normal”
and he was able to perform daily activities with modifications. Id. A physical examination
revealed “impingement symptoms” and tenderness over the left AC joint. Id. The
orthopedist stated that Petitioner had “failed conservative treatment” and thus
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recommended a left shoulder arthroscopy to treat his impingement syndrome and primary
OA. Id. at 67.
Petitioner underwent an MRI of the left shoulder on May 2, 2019, which showed:
1) mild supraspinatus tendinosis with superimposed small high-grade bursal surface tear
at the anterior tendon footprint; 2) a small posterior superior labral tear with associated
small multiloculated labral cyst; 3) small fluid collection within the subacromial subdeltoid
bursa; and 4) moderate AC arthrosis. Ex. 4 at 15.
During the 12th and final recommended PT session on May 15, 2019, Petitioner
reported that his pain had “decreased slightly” but that he continued “to have pain in his
left shoulder when he has to reach overhead.” Ex. 4 at 16-17. In light of his completion of
the recommended sessions, Petitioner was discharged “for further alternative treatment”
and he agreed to continue at-home exercises. Id. at 17.
Mr. Shields followed up with his orthopedist on May 23, 2019, to go over his recent
MRI results. Ex. 3 at 61. A physical examination showed full ROM, but pain with rotator
cuff testing and forward abduction, along with tenderness at the AC joint and a positive
cross chest abduction test. Id. The orthopedist felt that the MRI showed a “high-grade
rotator cuff tear and moderate [AC] joint arthrosis.” Id. at 62. The orthopedist maintained
his previous assessment of Petitioner, with the addition of an incomplete rotator cuff tear
or rupture of the left shoulder – for which arthroscopic surgery was again recommended.
Id.
There is a subsequent five-month gap in Petitioner’s treatment, with Petitioner not
obtaining additional care until October 22, 2019, when he returned to his PCP for an
annual physical. Ex. 3 at 53. Petitioner described his history of left shoulder pain and
stated he felt it was “caused by ‘the flu vaccine he got last yr [sic].’” Id. A physical
examination was normal. Id. at 54. Petitioner stated that he was seeking a second opinion
prior to getting surgery. Id. at 55.
On October 30, 2019, Petitioner sought a second opinion with another orthopedist.
Ex. 6 at 30. Upon examination, Petitioner exhibited mild tenderness to palpation over the
lateral aspect of the shoulder, but no bicipital groove or AC joint tenderness. Id. He also
showed normal strength and his abduction and internal rotation were limited by pain. Id.
The orthopedist agreed that given Petitioner’s failure to improve with conservative
measures, “surgical intervention would be a possibility for him.” Id.
Petitioner ultimately opted to proceed with surgery and underwent an arthroscopic
rotator cuff repair with xenograph patch augmentation, debridement of labral tearing,
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subacromial decompression, and application of a connective tissue allograph on
December 17, 2019. Ex. 6 at 14. During a follow-up call the day following his surgery,
Petitioner reported he was “doing good.” Id. at 6.
On January 7, 2020, Petitioner began post-operative PT. Ex. 5 at 50. He rated his
pain at a 6/10, with a 10/10 at worst when “trying to sleep at night.” Id. He also noted that
his post-operative use of a sling and pillow “seem[ed] to irritate [his pain the] most.” Id.
Petitioner reported that he could not use his left arm, had “severe difficulty dressing,” and
was sleeping only three hours per night as a result of the pain. Id. Petitioner exhibited
diminished ROM and flexibility on examination – but he had trouble relaxing for the
examination itself. Id. The physical therapist noted that Petitioner was compliant with his
HEP and recommended six weeks of treatment. Id. at 52.
Petitioner attended five additional PT sessions (six total) through January 24,
2020. Ex. 5 at 67. The records for Petitioner’s last PT visit appear to contain entries from
Petitioner’s initial session in early January, including Petitioner’s reported pain rating on
a ten-point scale. Compare id. at 50, with id. at 67 (stating that Petitioner’s pain was rated
at a 6/10, with 10/10 at worst with sleep and use of his sling and pillow). Petitioner
continued to demonstrate reduced ROM and restricted flexibility on examination. Id. at
67. The plan was to “continue [with the] current rehabilitation program” (with a note that
Petitioner’s care was being “transferred”); however, it does not appear that Petitioner
returned to treatment for his left shoulder pain with PT or otherwise. See id. at 67, 69.
Petitioner asserted that he was “required to suspend [his] treatment due to the COVID
pandemic.” Ex. 1 ¶ 20.
Mr. Shields did manage to seek treatment for acute issues as needed throughout
2020, 2021, and 2022. See, e.g., Ex. 10 at 11 (a March 21, 2020 PCP visit); Ex. 10 at 13
(an October 23, 2020 PCP visit); Ex. 10 at 18-19 (an August 16, 2021 PCP visit); Ex. 10
at 28 (a December 30, 2022 PCP visit). In fact, Petitioner received a repeat flu vaccine in
his left shoulder during a visit with his PCP on February 18, 2022. Ex. 10 at 25, 33. He
did not complain of left shoulder pain at any of these visits. See id. at 16, 24, 28, 31, 100,
102, 106, 112, 134.
In his affidavit, authored on December 17, 2020, Petitioner attests that he
continued to experience pain in his left shoulder “from time to time.” Ex. 1 ¶ 21. His
persistent pain has prevented him from sleeping on the left side, grooming and dressing
himself, and maintaining household and physical duties. Id. Specifically, he found it
“unbearable” to move furniture, paint, play with his grandchildren and dog, do yardwork,
and engage in activities (including ziplining, fishing, bowling, volleyball, and basketball).
Id. He also explained his difficulty maintaining long-lasting relationships, as well as the
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emotional and financial stress created by his injury. Id. Petitioner’s children also authored
witness declarations on Petitioner’s behalf and generally attested that his left shoulder
pain began “around thanksgiving of 2018” and in “the fall of 2018.” Ex. 11 ¶ 2; Ex. 12 ¶ 2.
No additional medical records or affidavit evidence has been filed.
III. Fact Findings and Ruling on Entitlement
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
petitioner must establish that he 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).
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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;
3 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
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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(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
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-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
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 at 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 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
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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
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 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 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).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Petitioner Has No Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise.
2. Onset of Petitioner’s Injury Occurred within 48 Hours of his
Vaccination
A petitioner alleging a SIRVA claim must also show that he experienced the first
symptom or onset within 48 hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)), and that
his pain began within that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI
criteria)). Respondent questions whether Petitioner can establish this criterion.
Nonetheless, the medical records preponderantly establish onset of injury close-in-time
to vaccination and specifically within 48 hours of the subject vaccination.
Although his first recorded post-vaccination complaint of shoulder pain linked to
the subject flu vaccine is from February 5, 2019 (over three months post-vaccination),
Petitioner specifically stated at this time that he had experienced “continued left shoulder
pain since getting [a] flu shot into left upper deltoid region.” Ex. 3 at 51 (emphasis added).
The single intervening medical visit before this date was for pre-existing and unrelated
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issues, including skin lumps. See id. at 49. Petitioner could have reasonably mentioned
shoulder-related complaints during this visit (as it was with his PCP whom he saw for his
receipt of the subject vaccination), but his failure to do so on one occasion does not alone
preclude a finding of Table-consistent onset.
Petitioner’s relatively minor treatment delay itself also does not undermine his
onset assertions. It is common for SIRVA petitioners to delay seeking treatment, thinking
the injury will resolve on its own, especially since patients are often told by medical
providers at the time of vaccination to expect some soreness and pain for a period of time
after. And individuals also often misconstrue the nature of their injury, and therefore fail
to inform treaters of all specific facts relevant to onset until later.
Indeed, I have found greater delays not to have undermined an otherwise-
preponderantly-established showing of two-day onset. See, e.g., Tenneson v. Sec’y of
Health & Hum. Servs., No. 16-1664V, 2018 WL 3083140, at *5 (Fed. Cl. Spec. Mstr. Mar.
30, 2018), mot. for rev. den’d, 142 Fed. Cl. 329 (2019) (finding a 48-hour onset of shoulder
pain despite a nearly six-month delay in seeking treatment); Williams v. Sec’y of Health
& Hum. Servs., No. 17-830V, 2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31,
2019) (noting a delay in seeking treatment for five-and-a-half months because a petitioner
underestimated the severity of her shoulder injury). At most, the delay speaks to the
extent of Petitioner’s suffering – for his injury appears to have been manageable, with his
use of self-care for over three months before professional medical assistance was sought.
Additionally, Petitioner affirmatively and repeatedly linked the onset of his shoulder
pain to the October 2018 vaccination. See, e.g., Ex. 5 at 5 (a March 6, 2019 PT note
stating that “on Oct[.] 26, 2018[, Petitioner] received a flu shot and continued to notice L
arm pain and soreness for over a month.”). While the date reported during that visit was,
in fact, two days later than the subject vaccine, I do not find this to outweigh the other
evidence in favor of 48-hour onset. Furthermore, the affidavit submitted by Petitioner
corroborates the evidence contained in his medical records about onset. Ex. 1.
Although some reports in the medical records do not place onset squarely within
the Table’s two-day requirement (instead including only a general temporal relationship
between onset of his injury and his subject flu vaccination), Petitioner consistently linked
the two events. See, e.g., Ex. 3 at 53 (an October 22, 2019 note stating that his shoulder
pain was caused by a flu vaccine he received “last yr” [sic]). Such reporting corroborates
the contention made in the affidavit that Petitioner’s pain began within 48 hours of
vaccination and provides additional support for a close-in-time onset. While one of
Petitioner’s medical records mentions onset outside of the 48-hour window (in November
2018) (Ex. 3 at 73), I do not find that this singular entry contradicts the bulk of evidence
in favor of Table onset.
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Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s left shoulder pain more likely than not occurred within
48 hours of vaccination, and thus within the Table timeframe.
3. Petitioner’s Pain was Limited to his Left Shoulder
The third requirement for a Table SIRVA is that the pain and limited ROM are
limited to the shoulder in which the subject vaccination was administered. 42 C.F.R. §
100.3(c)(10)(iii). Respondent has not contested that Petitioner meets this criterion, and
there is not preponderant evidence in the filed record to suggest otherwise.
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent has likewise not contested this criterion and there is
insufficient evidence in the record to suggest it cannot be satisfied.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in his left
shoulder on October 24, 2018, in Houston, Texas. Ex. 1 ¶ 2; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for his injury. Ex. 1 ¶ 23; Section 11(c)(1)(E) (lack of prior civil
award). As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA. Additionally, it is not disputed that Petitioner has established the six-month
severity requirement. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
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Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
IV. Damages
The parties have also briefed damages in this case, which is limited to a request
for a past pain and suffering award. Petitioner requests $125,000.00 for actual pain and
suffering. Mot. at 12. Respondent proposes an award of $75,000.00 for past pain and
suffering. Opp. at 13.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion from Sections III and IV of Leslie v.
Sec’y Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan.
28, 2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021). See also Yodowitz v. Sec’y of Health & Hum. Servs., No. 21-370V, 2024 WL
4284926 (Fed. Cl. Spec. Mstr. Aug. 23, 2024) (discussing statistical data of compensation
awarded in prior SIRVA cases to-date).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.4
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of the injury to be considered. In determining appropriate compensation for pain
4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
11

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and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
Citing five prior damages determinations (Collado, Dobbins, Cooper, Binette, and
Bruegging),5 Petitioner requests an award of $125,000.00. See, e.g., Mot. at 11-12. He
asserts that he suffered a severe SIRVA, requiring “three surgical procedures (two
administrations of a corticosteroid injection and one arthroscopic procedure to make four
distinctive and concurrent surgical repairs).”6 Id. at 11. As Petitioner “still suffers greatly
from pain and limited use of his arm” despite his treatment with injections, PT, and
surgery, he argues that his injury is akin to the cases he relied upon for support. Id. at 12-
13.
Respondent, by contrast, maintains that an award of no more than $75,000.00 is
appropriate. Opp. at 13. Petitioner had a “significant delay in seeking care,” which
encompassed an intervening visit with his PCP. Id. at 18. His treatment consisted of two
steroid injections, two rounds of PT, and an arthroscopic surgery – after which he did not
require “post-operative orthopedic care.” Id. Respondent also argues that Petitioner has
not received any “SIRVA-related treatment since May 2020” (15 months post
vaccination). Id. He thus compares the facts of Petitioner’s case to the petitioners in Hunt
and Felland.7 Id. at 16-18.
The filed record in this case establishes that Petitioner suffered a moderately-
severe SIRVA overall, significant enough to require surgery but mild enough for his care
to cease almost immediately thereafter (within one month of surgery). Particularly
5 Collado v. Sec'y of Health & Hum. Servs., No. 17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6,
2018) (awarding $120,000.00 for actual pain and suffering); Dobbins v. Sec'y of Health & Hum. Servs., No.
16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for actual pain
and suffering); Cooper v. Sec'y of Health & Hum. Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec.
Mstr. Nov. 7, 2018) (awarding $110,000.00 for actual pain and suffering); Binette v. Sec’y of Health & Hum.
Servs., No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $130,000.00 for
actual pain and suffering); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-261V, 2019 WL 2620957
(Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for actual pain and suffering).
6 Petitioner appears to misinterpret his receipt of two steroid injections for surgical procedures.
7 Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16,
2022) (awarding $95,000.00 for past pain and suffering); Felland v. Sec’y of Health & Hum. Servs., No. 20-
406V, 2022 WL 10724100 (Fed. Cl. Spec. Mstr. Sept. 6, 2022) (awarding $100,000.00 for past pain and
suffering).
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probative is the evidence demonstrating Petitioner’s delay in seeking treatment for over
three months, subsequent treatment with over-the-counter anti-inflammatories, an x-ray
(showing mild AC joint arthrosis), an MRI (indicative of a high grade rotator cuff tear and
moderate AC joint arthrosis), two corticosteroid injections, participation in two rounds of
PT for a total of 18 sessions (plus an HEP), and one arthroscopic surgery – resulting in
lingering effects and pain. Additionally, Petitioner’s medical records contain some
descriptions of his pain on a ten-point scale, including his reports at the beginning of each
round of PT (pre- and post-surgery). See, e.g., Ex. 5 at 5 (a March 6, 2019 PT note
reporting pain at a 6/10 with a range of 5-7/10); Ex. 5 at 50 (a January 7, 2020 PT note
reporting pain at a 6-10/10). Such notations support a moderate SIRVA upon onset,
followed by a worsening of pain while Petitioner healed from surgery.
Petitioner complained of and exhibited reduced ROM to some degree throughout
his treatment course, despite evidence of full ROM upon his first visit in early February
2019. See, e.g., Ex. 3 at 73-74 (a February 21, 2019 orthopedic examination showing
reduced active ROM); Ex. 5 at 5-6 (a March 6, 2019 PT examination revealing “slight
deficits in L shoulder ROM”); Ex. 3 at 69-70 (a March 28, 2019 orthopedic examination
consistent with reduced ROM). Petitioner’s mild or “slight” ROM limitations subsequently
improved throughout 2019 – seemingly around the time of his receipt of his second steroid
injection in March 2019; however, following his treatment with arthroscopic surgery,
Petitioner’s ROM restrictions returned. See, e.g., Ex. 3 at 66 (an April 19, 2019 orthopedic
note that Petitioner’s ROM “ha[d] improved to near normal”); Ex. 3 at 61 (a May 23, 2019
orthopedic examination showing full ROM); Ex. 5 at 50, 67 (January 7 and 24, 2020 PT
examinations revealing diminished ROM and difficulty relaxing the muscles). The medical
records thus show that Petitioner’s limitations in ROM (albeit mild and not continuous)
lasted through (at least) January 2020.
Further, the medical record preponderantly establishes (and Respondent does not
explicitly dispute)8 that Petitioner’s treatment course and ongoing SIRVA symptoms
continued for approximately 15 months – until January 24, 2020. See Opp. at 15. While
Petitioner contends that he was forced to cease treatment as a result of the COVID-19
Pandemic, the filed record does not support this argument. Ex. 1 ¶ 20. In fact, Petitioner
successfully sought treatment for various conditions unrelated to his SIRVA throughout
the remainder of 2020 and beyond. See, e.g., Ex. 10 at 9-10, 112, 136. It is thus not
credible that the Pandemic (which initially manifested in March 2020) was the reason he
discontinued formal shoulder treatment. Rather, it is more likely than not that his
8 Respondent’s argument appears to contain an immaterial error – he contends that Petitioner’s injury
course was 15 months but that it lasted through May of 2020. Opp. at 18. However, he also notes that
Petitioner completed his formal treatment in January 2020 – which is, in fact, 15 months post vaccination.
Id. at 15.
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symptoms were manageable without formal treatment after January 2020 (and hence
before the limitations on care imposed by the Pandemic had even begun).
The severity and duration of Petitioner’s pain, although significant (at times) and
fairly lengthy, is also offset by one five-month treatment gap when Petitioner was
contemplating surgery. See Shelton v. Sec’y of Health & Hum. Servs., No. 19-279V, 2021
WL 2550093, at *7 (Fed. Cl. Spec. Mstr. May 21, 2021) (reducing an award due to a gap
in care). When medical records filed for petitioners reveal comparable gaps, it is proper
to weigh the reason for the gaps against evidence of a petitioner’s purported pain. See
id. Petitioner has not explained this gap in treatment in his affidavit or elsewhere. See Ex.
1. Arguably, the gap could be (at least partially) explained by Petitioner’s receipt of a
steroid injection in March 2019 (resulting in improved ROM on examination) and his
desire to seek a second opinion for his ongoing treatment options (i.e., surgery). However,
without additional context in the record offered by Petitioner, I cannot fully ascertain the
explanation for the gap. Accordingly, such circumstances counsel in favor of interpreting
the gap as evidence of the mildness or stability of the injury, which could be endured
without medical assistance for a steady period of time.
In making his request for pain and suffering, Petitioner has mostly relied on cases
wherein the award was either above or below his requested amount – thus making his
reliance on such cases somewhat unhelpful. Binette v. Sec’y of Health & Hum. Servs.,
No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering); Collado v. Sec'y of Health & Hum. Servs., No.
17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00
for actual pain and suffering); Cooper v. Sec'y of Health & Hum. Servs., No. 16-1387V,
2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for actual
pain and suffering); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-261V, 2019 WL
2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for actual pain and
suffering). Indeed, only one of Petitioner’s cited cases received the requested award in
the instant claim. Dobbins v. Sec'y of Health & Hum. Servs., No. 16-854V, 2018 WL
4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for actual pain and
suffering). Nonetheless, the overall severity and duration of the injury at issue herein is
ultimately distinguishable from Petitioner’s cited comparable decisions.
For instance, in Binette (the case with the highest award out of Petitioner’s cited
comparables - $130,000.00), while the 24-year-old petitioner did not undergo surgery,
this was because the injury was considered inoperable. See 2019 WL 1552620. More so,
Binette’s injury was considered permanent. Id. Although Petitioner here reported
significant pain at the end of his somewhat aggressive treatment course (6-10/10) (Ex. 5
at 67), there is insufficient evidence in the medical records that any of treaters considered
14

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his injury to be permanent. He also did not seek or require ongoing care (despite a report
of pain at the conclusion of his treatment course) – thus entitling him to a significantly
lesser award than that awarded to the Binette petitioner.
Likewise, in Dobbins (wherein the requested amount of $125,000.00 was awarded
for pain and suffering), the petitioner experienced a more severe injury. See 2018 WL
4611267. Indeed, the petitioner sought treatment within three weeks of the injurious
vaccination, required surgery six weeks post vaccination, treated with 32 sessions of PT,
and experienced severe limitations in ROM. See id. The Dobbins petitioner also
demonstrated personal circumstances that warranted a higher award, including that she
was caring for her terminally ill mother at the time of her treatment and that she
experienced limitations in playing tennis and painting. Id. Petitioner here delayed seeking
treatment for his shoulder pain for over three months post vaccination, did not undergo
surgery for over one year into his treatment course, and only experienced “slight”
limitations in ROM therefore entitling him to a lower award. Additionally, Petitioner did not
describe specific, similar, or unique personal limitations caused by his vaccine-related
injury sufficient to justify his requested award. See generally, Ex. 1.
The remaining cases relied upon by Petitioner are more factually comparable
(albeit not entirely on point). But those petitioners all received lower awards than what is
requested in this case. For instance, the Collado petitioner (awarded $120,000.00) sought
care within two weeks of vaccination, treated for seven months, rated her pain severely
at a 10/10 upon vaccination (and consistently for five months prior to her surgery), and
she experienced a noted 40% improvement following her treatment course. See 2018 WL
3433352. Also, the Collado petitioner underwent a more invasive, open surgical
procedure compared to Petitioner’s arthroscopic surgery. Id.
Cooper (awarded $110,000.00) is distinguishable as well. That petitioner treated
for more than two years and nine months (with specialized treatment including a
chiropractor and massage therapy), but still exhibited residual pain and diminished ROM
following treatment. See 2018 WL 6288181. The Cooper petitioner also exhibited severe
limitations in ROM even two years into her lengthy total treatment course (33 months
versus Petitioner’s 15-month course). See id. While that claimant did not undergo surgery,
she received a higher award than other non-surgical SIRVA cases because she
successfully demonstrated that her injury greatly impacted her personal life – including
with sailing and an active lifestyle, which was the foundation of her marriage. Id. Petitioner
here has not made a comparable showing.
It is the case that more often than not, I deem a six-figure award appropriate in
SIRVA cases where surgery was required. But there is no hard and fast rule to this effect.
15

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See Gray v. Sec’y of Health & Hum. Servs., No. 20-1708V, 2022 WL 6957013, at *5 (Fed.
Cl. Spec. Mstr. Sept. 12, 2022) (stating that “an award of at least $100,000.00 is not
automatically appropriate for all SIRVA injuries simply because arthroscopic surgery was
involved.”). And I have awarded less than $100,000.00 in several cases featuring surgery,
including one of Respondent’s cited cases, where the specific circumstances of the claim
merit a lower award. See, e.g., Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V,
2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 for past
pain and suffering); see also Shelton, 2021 WL 2550093 (awarding $97,500.00 for pain
and suffering wherein the petitioner underwent surgery but delayed seeking treatment for
five months post vaccination, followed by an additional three-month delay before seeking
further treatment).
The cases Respondent relies upon for support (awarding greater compensation
than that recommended by Respondent in this case) provide guidance for a fair award in
the instant claim. The petitioner in Felland, for example, treated within 34 days of
vaccination, for a total of one year. Felland v. Sec’y of Health & Hum. Servs., No. 20-
406V, 2022 WL 10724100 (Fed. Cl. Spec. Mstr. Sept. 6, 2022) (awarding $100,000.00
for past pain and suffering). Felland received care similar to Petitioner, including over-
the-counter anti-inflammatories, two steroid shots, and one arthroscopic surgery. See id.
The Felland petitioner likewise only suffered from slightly limited ROM. Id. But Mr. Shields
delayed seeking treatment for over 100 days – three times longer than the Felland
petitioner, and comparably had one MRI (versus Felland’s two MRIs). A slightly lesser
award is therefore appropriate in Petitioner’s case.
Overall, the best comparable offered in this case involved a $95,000.00 past pain
and suffering award. See Hunt, 2022 WL 2826662.9 The Hunt petitioner sought treatment
for shoulder pain within roughly three weeks of vaccination, received three steroid
injections (providing relief correlating to small gaps in treatment), rated her pain ranging
from a 1-8+/10 throughout her treatment course, underwent 19 total PT sessions (pre-
and post-surgery), and underwent one arthroscopic procedure. Id. Both the Hunt
petitioner and Petitioner in this case treated for a total of 15 months and experienced
periods of little to no pain – as evidenced by some gaps in treatment. Therefore, the same
sum is properly awarded.
9 Although at SPU “Motions Day” proceedings I often chastise Respondent for over-reliance on Hunt, this
matter presents exactly the kind of circumstances where it stands as a reasonable comparable for
guidance.
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Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that the onset of Petitioner’s injury, specifically shoulder pain, was within 48 hours
of his vaccine and he has otherwise satisfied the requirements for a Table SIRVA
claim. Further, based on the evidence of record, I find that Petitioner is entitled to
compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $95,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.10
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they
file notices renouncing their right to seek review.
17

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-01970-1
Date issued/filed: 2024-12-31
Pages: 17
Docket text: PUBLIC DECISION (Originally filed: 11/26/2024) regarding 41 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01970-UNJ Document 50 Filed 12/31/24 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1970V
DON SHIELDS, Chief Special Master Corcoran
Petitioner, Filed: November 26, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Sean Franks Greenwood, The Greenwood Law Firm, Houston, TX, for Petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On December 23, 2020, Don Shields 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”) caused by an influenza (“flu”) vaccine administered on October
24, 2018. Pet. at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $95,000.00 for past/actual pain and suffering.
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-01970-UNJ Document 50 Filed 12/31/24 Page 2 of 17
I. Relevant Procedural History
After completion of records filing and Respondent’s medical review, the parties
attempted to informally resolve this matter but were unsuccessful. ECF Nos. 26-30, 34-
37. Petitioner thereafter submitted a motion for a ruling on the record regarding
entitlement and damages on October 17, 2023. Mot., ECF No. 39. Petitioner argued that
he meets the Table definition of a SIRVA and requested an award of $125,000.00 for
actual pain and suffering. Id. at 12.
Respondent reacted to Petitioner’s entitlement and damages contentions on
November 17, 2023. Opp., ECF No. 40. Respondent argued that Petitioner has failed to
establish that the onset of his injury occurred within 48 hours of the subject vaccination,
and thus his Table claim must fail. Id. at 7. Otherwise, if Petitioner was found entitled to
damages, Respondent argued that a lesser award of $75,000.00 was appropriate for past
pain and suffering. Id. at 13. Petitioner did not file a reply thereafter. This matter is now
ripe for resolution.
II. Petitioner’s Medical History
Petitioner’s medical history was non-contributory. See Ex. 3 at 15, 19, 34-36, 42-
44; Ex. 5 at 50. At age 60, during a visit with his primary care provider (“PCP”) for
unrelated conditions, Petitioner received the subject flu vaccine on October 24, 2018, in
his left shoulder. Ex. 3 at 38; Ex. 2 at 3; Ex. 9 at 3. Petitioner attested that “[a]fter the
vaccination, [he] had severe pain in [his] left arm that developed overnight and persisted
for over a month.” Ex. 1 ¶ 3. He described his shoulder pain and stated it “felt like a poking
needle sensation.” Id.
Approximately one month post-vaccination (on November 26, 2018), Petitioner
followed up with his PCP for unrelated conditions, but made no mention of his shoulder
pain at this time. Ex. 3 at 49. He explains this omission in his affidavit, noting that the
appointment was “to follow up on medication [he] was taking for a dermatologic condition.”
Ex. 1 ¶ 4. He also “thought the pain was a normal reaction to the vaccine and that it would
eventually subside[.]” Id.
On February 5, 2019 (now roughly three-and-a-half-months post vaccination),
Petitioner returned to his PCP complaining of “persistent left shoulder deltoid pain.” Ex. 3
at 51. Specifically, Petitioner reported “continued left shoulder pain since getting [a] flu
shot into left upper deltoid region, and describes a ‘poking neddle’ [sic] sensation to the
area.” Id. An examination of his left shoulder showed normal strength and full range of
motion (“ROM”). Id. at 52. Petitioner was assessed with shoulder pain and was told to
2

Case 1:20-vv-01970-UNJ Document 50 Filed 12/31/24 Page 3 of 17
take ibuprofen. Id. An x-ray performed the next day (February 6, 2019), revealed
“[m]ultiple areas of nonspecific subchondral cystic change.” Id. at 77.
Later that month, on February 21, 2019, Petitioner saw an orthopedist and reported
a “3 month history of atraumatic left shoulder pain.” Ex. 3 at 73. Petitioner felt that “his
pain began after receiving a flu shot in the arm in November.” Id. He explained that the
pain was in his entire shoulder and that it was aggravated with reaching overhead and
behind his back; he described popping and catching in his shoulder. Id. An examination
revealed reduced active ROM, mild tenderness at the acromioclavicular (“AC”) joint, and
positive impingement signs. Id. at 74. The orthopedist reviewed Petitioner’s x-ray results
and opined the findings were consistent with mild AC joint arthrosis. Id. Petitioner was
assessed with impingement syndrome and primary osteoarthritis (“OA”) of the left
shoulder. Id. He received a steroid injection and was referred to physical therapy (“PT”).
Id. at 75.
Petitioner underwent an initial PT evaluation on March 6, 2019. Ex. 5 at 5. The
injury date is inexplicably listed as “9/26/2017.” Id. However, the chief complaint section
states that “on Oct[.] 26, 2018[, Petitioner] received a flu shot and continued to notice L
arm pain and soreness for over a month.” Id. Petitioner noted he experienced a “minimal
change in symptoms” after receiving his prior steroid injection. Id. He rated his current
pain at a 6/10, with a range of 5-7/10. Id. The “mechanism of injury” was listed as “after
an injection into the arm for the flu shot.” Id. Upon examination, Petitioner exhibited
positive impingement signs and “slight deficits in L shoulder ROM and strength,” but his
external rotation was better on his left side compared to the right. Id. at 6. Four weeks of
PT (three times per week) was recommended. Id. at 7. By Petitioner’s second visit on
March 12, 2019, the injury date was changed to “10/26/2018.” Id. at 10.
On March 28, 2019, Petitioner returned to his orthopedist’s office reporting ongoing
“pain with abduction and less with flexion.” Ex. 3 at 69. Petitioner noted he had been
attending PT twice per week but had been “experiencing pain with therapy and [was] not
willing to attend as advised.” Id. at 70. He demonstrated reduced ROM and received a
second steroid injection. Id. at 69-70. Petitioner also agreed to attend PT as prescribed
and to “be more aggressive with home exercises.” Id. at 70.
Petitioner returned to his orthopedist on April 19, 2019, with a “deep, stabbing like
pain in the anterior aspect of the shoulder with forward flexion and overhead activities.”
Ex. 3 at 66. The orthopedist noted that Petitioner’s ROM “ha[d] improved to near normal”
and he was able to perform daily activities with modifications. Id. A physical examination
revealed “impingement symptoms” and tenderness over the left AC joint. Id. The
orthopedist stated that Petitioner had “failed conservative treatment” and thus
3

Case 1:20-vv-01970-UNJ Document 50 Filed 12/31/24 Page 4 of 17
recommended a left shoulder arthroscopy to treat his impingement syndrome and primary
OA. Id. at 67.
Petitioner underwent an MRI of the left shoulder on May 2, 2019, which showed:
1) mild supraspinatus tendinosis with superimposed small high-grade bursal surface tear
at the anterior tendon footprint; 2) a small posterior superior labral tear with associated
small multiloculated labral cyst; 3) small fluid collection within the subacromial subdeltoid
bursa; and 4) moderate AC arthrosis. Ex. 4 at 15.
During the 12th and final recommended PT session on May 15, 2019, Petitioner
reported that his pain had “decreased slightly” but that he continued “to have pain in his
left shoulder when he has to reach overhead.” Ex. 4 at 16-17. In light of his completion of
the recommended sessions, Petitioner was discharged “for further alternative treatment”
and he agreed to continue at-home exercises. Id. at 17.
Mr. Shields followed up with his orthopedist on May 23, 2019, to go over his recent
MRI results. Ex. 3 at 61. A physical examination showed full ROM, but pain with rotator
cuff testing and forward abduction, along with tenderness at the AC joint and a positive
cross chest abduction test. Id. The orthopedist felt that the MRI showed a “high-grade
rotator cuff tear and moderate [AC] joint arthrosis.” Id. at 62. The orthopedist maintained
his previous assessment of Petitioner, with the addition of an incomplete rotator cuff tear
or rupture of the left shoulder – for which arthroscopic surgery was again recommended.
Id.
There is a subsequent five-month gap in Petitioner’s treatment, with Petitioner not
obtaining additional care until October 22, 2019, when he returned to his PCP for an
annual physical. Ex. 3 at 53. Petitioner described his history of left shoulder pain and
stated he felt it was “caused by ‘the flu vaccine he got last yr [sic].’” Id. A physical
examination was normal. Id. at 54. Petitioner stated that he was seeking a second opinion
prior to getting surgery. Id. at 55.
On October 30, 2019, Petitioner sought a second opinion with another orthopedist.
Ex. 6 at 30. Upon examination, Petitioner exhibited mild tenderness to palpation over the
lateral aspect of the shoulder, but no bicipital groove or AC joint tenderness. Id. He also
showed normal strength and his abduction and internal rotation were limited by pain. Id.
The orthopedist agreed that given Petitioner’s failure to improve with conservative
measures, “surgical intervention would be a possibility for him.” Id.
Petitioner ultimately opted to proceed with surgery and underwent an arthroscopic
rotator cuff repair with xenograph patch augmentation, debridement of labral tearing,
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subacromial decompression, and application of a connective tissue allograph on
December 17, 2019. Ex. 6 at 14. During a follow-up call the day following his surgery,
Petitioner reported he was “doing good.” Id. at 6.
On January 7, 2020, Petitioner began post-operative PT. Ex. 5 at 50. He rated his
pain at a 6/10, with a 10/10 at worst when “trying to sleep at night.” Id. He also noted that
his post-operative use of a sling and pillow “seem[ed] to irritate [his pain the] most.” Id.
Petitioner reported that he could not use his left arm, had “severe difficulty dressing,” and
was sleeping only three hours per night as a result of the pain. Id. Petitioner exhibited
diminished ROM and flexibility on examination – but he had trouble relaxing for the
examination itself. Id. The physical therapist noted that Petitioner was compliant with his
HEP and recommended six weeks of treatment. Id. at 52.
Petitioner attended five additional PT sessions (six total) through January 24,
2020. Ex. 5 at 67. The records for Petitioner’s last PT visit appear to contain entries from
Petitioner’s initial session in early January, including Petitioner’s reported pain rating on
a ten-point scale. Compare id. at 50, with id. at 67 (stating that Petitioner’s pain was rated
at a 6/10, with 10/10 at worst with sleep and use of his sling and pillow). Petitioner
continued to demonstrate reduced ROM and restricted flexibility on examination. Id. at
67. The plan was to “continue [with the] current rehabilitation program” (with a note that
Petitioner’s care was being “transferred”); however, it does not appear that Petitioner
returned to treatment for his left shoulder pain with PT or otherwise. See id. at 67, 69.
Petitioner asserted that he was “required to suspend [his] treatment due to the COVID
pandemic.” Ex. 1 ¶ 20.
Mr. Shields did manage to seek treatment for acute issues as needed throughout
2020, 2021, and 2022. See, e.g., Ex. 10 at 11 (a March 21, 2020 PCP visit); Ex. 10 at 13
(an October 23, 2020 PCP visit); Ex. 10 at 18-19 (an August 16, 2021 PCP visit); Ex. 10
at 28 (a December 30, 2022 PCP visit). In fact, Petitioner received a repeat flu vaccine in
his left shoulder during a visit with his PCP on February 18, 2022. Ex. 10 at 25, 33. He
did not complain of left shoulder pain at any of these visits. See id. at 16, 24, 28, 31, 100,
102, 106, 112, 134.
In his affidavit, authored on December 17, 2020, Petitioner attests that he
continued to experience pain in his left shoulder “from time to time.” Ex. 1 ¶ 21. His
persistent pain has prevented him from sleeping on the left side, grooming and dressing
himself, and maintaining household and physical duties. Id. Specifically, he found it
“unbearable” to move furniture, paint, play with his grandchildren and dog, do yardwork,
and engage in activities (including ziplining, fishing, bowling, volleyball, and basketball).
Id. He also explained his difficulty maintaining long-lasting relationships, as well as the
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emotional and financial stress created by his injury. Id. Petitioner’s children also authored
witness declarations on Petitioner’s behalf and generally attested that his left shoulder
pain began “around thanksgiving of 2018” and in “the fall of 2018.” Ex. 11 ¶ 2; Ex. 12 ¶ 2.
No additional medical records or affidavit evidence has been filed.
III. Fact Findings and Ruling on Entitlement
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
petitioner must establish that he 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).
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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;
3 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
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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(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
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-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
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 at 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 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
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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
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 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 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).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Petitioner Has No Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise.
2. Onset of Petitioner’s Injury Occurred within 48 Hours of his
Vaccination
A petitioner alleging a SIRVA claim must also show that he experienced the first
symptom or onset within 48 hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)), and that
his pain began within that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI
criteria)). Respondent questions whether Petitioner can establish this criterion.
Nonetheless, the medical records preponderantly establish onset of injury close-in-time
to vaccination and specifically within 48 hours of the subject vaccination.
Although his first recorded post-vaccination complaint of shoulder pain linked to
the subject flu vaccine is from February 5, 2019 (over three months post-vaccination),
Petitioner specifically stated at this time that he had experienced “continued left shoulder
pain since getting [a] flu shot into left upper deltoid region.” Ex. 3 at 51 (emphasis added).
The single intervening medical visit before this date was for pre-existing and unrelated
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issues, including skin lumps. See id. at 49. Petitioner could have reasonably mentioned
shoulder-related complaints during this visit (as it was with his PCP whom he saw for his
receipt of the subject vaccination), but his failure to do so on one occasion does not alone
preclude a finding of Table-consistent onset.
Petitioner’s relatively minor treatment delay itself also does not undermine his
onset assertions. It is common for SIRVA petitioners to delay seeking treatment, thinking
the injury will resolve on its own, especially since patients are often told by medical
providers at the time of vaccination to expect some soreness and pain for a period of time
after. And individuals also often misconstrue the nature of their injury, and therefore fail
to inform treaters of all specific facts relevant to onset until later.
Indeed, I have found greater delays not to have undermined an otherwise-
preponderantly-established showing of two-day onset. See, e.g., Tenneson v. Sec’y of
Health & Hum. Servs., No. 16-1664V, 2018 WL 3083140, at *5 (Fed. Cl. Spec. Mstr. Mar.
30, 2018), mot. for rev. den’d, 142 Fed. Cl. 329 (2019) (finding a 48-hour onset of shoulder
pain despite a nearly six-month delay in seeking treatment); Williams v. Sec’y of Health
& Hum. Servs., No. 17-830V, 2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31,
2019) (noting a delay in seeking treatment for five-and-a-half months because a petitioner
underestimated the severity of her shoulder injury). At most, the delay speaks to the
extent of Petitioner’s suffering – for his injury appears to have been manageable, with his
use of self-care for over three months before professional medical assistance was sought.
Additionally, Petitioner affirmatively and repeatedly linked the onset of his shoulder
pain to the October 2018 vaccination. See, e.g., Ex. 5 at 5 (a March 6, 2019 PT note
stating that “on Oct[.] 26, 2018[, Petitioner] received a flu shot and continued to notice L
arm pain and soreness for over a month.”). While the date reported during that visit was,
in fact, two days later than the subject vaccine, I do not find this to outweigh the other
evidence in favor of 48-hour onset. Furthermore, the affidavit submitted by Petitioner
corroborates the evidence contained in his medical records about onset. Ex. 1.
Although some reports in the medical records do not place onset squarely within
the Table’s two-day requirement (instead including only a general temporal relationship
between onset of his injury and his subject flu vaccination), Petitioner consistently linked
the two events. See, e.g., Ex. 3 at 53 (an October 22, 2019 note stating that his shoulder
pain was caused by a flu vaccine he received “last yr” [sic]). Such reporting corroborates
the contention made in the affidavit that Petitioner’s pain began within 48 hours of
vaccination and provides additional support for a close-in-time onset. While one of
Petitioner’s medical records mentions onset outside of the 48-hour window (in November
2018) (Ex. 3 at 73), I do not find that this singular entry contradicts the bulk of evidence
in favor of Table onset.
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Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s left shoulder pain more likely than not occurred within
48 hours of vaccination, and thus within the Table timeframe.
3. Petitioner’s Pain was Limited to his Left Shoulder
The third requirement for a Table SIRVA is that the pain and limited ROM are
limited to the shoulder in which the subject vaccination was administered. 42 C.F.R. §
100.3(c)(10)(iii). Respondent has not contested that Petitioner meets this criterion, and
there is not preponderant evidence in the filed record to suggest otherwise.
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent has likewise not contested this criterion and there is
insufficient evidence in the record to suggest it cannot be satisfied.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in his left
shoulder on October 24, 2018, in Houston, Texas. Ex. 1 ¶ 2; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for his injury. Ex. 1 ¶ 23; Section 11(c)(1)(E) (lack of prior civil
award). As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA. Additionally, it is not disputed that Petitioner has established the six-month
severity requirement. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
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Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
IV. Damages
The parties have also briefed damages in this case, which is limited to a request
for a past pain and suffering award. Petitioner requests $125,000.00 for actual pain and
suffering. Mot. at 12. Respondent proposes an award of $75,000.00 for past pain and
suffering. Opp. at 13.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within the SPU. I fully
adopt and hereby incorporate my prior discussion from Sections III and IV of Leslie v.
Sec’y Health & Hum. Servs., No. 18-0039V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan.
28, 2021) and Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891
(Fed. Cl. Spec. Mstr. Jan. 25, 2021), as well as Sections II and III of Tjaden v. Sec’y of
Health & Hum. Servs., No. 19-419V, 2021 WL 837953 (Fed. Cl. Spec. Mstr. Jan. 25,
2021). See also Yodowitz v. Sec’y of Health & Hum. Servs., No. 21-370V, 2024 WL
4284926 (Fed. Cl. Spec. Mstr. Aug. 23, 2024) (discussing statistical data of compensation
awarded in prior SIRVA cases to-date).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.4
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of the injury to be considered. In determining appropriate compensation for pain
4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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and suffering, I have carefully reviewed and taken into account the complete record in
this case, including all medical records, declarations, plus all filings submitted by both
Petitioner and Respondent. I have also considered prior awards for pain and suffering in
both SPU and non-SPU SIRVA cases and relied upon my experience adjudicating these
cases. However, my determination is ultimately based upon the specific circumstances
of this case.
Citing five prior damages determinations (Collado, Dobbins, Cooper, Binette, and
Bruegging),5 Petitioner requests an award of $125,000.00. See, e.g., Mot. at 11-12. He
asserts that he suffered a severe SIRVA, requiring “three surgical procedures (two
administrations of a corticosteroid injection and one arthroscopic procedure to make four
distinctive and concurrent surgical repairs).”6 Id. at 11. As Petitioner “still suffers greatly
from pain and limited use of his arm” despite his treatment with injections, PT, and
surgery, he argues that his injury is akin to the cases he relied upon for support. Id. at 12-
13.
Respondent, by contrast, maintains that an award of no more than $75,000.00 is
appropriate. Opp. at 13. Petitioner had a “significant delay in seeking care,” which
encompassed an intervening visit with his PCP. Id. at 18. His treatment consisted of two
steroid injections, two rounds of PT, and an arthroscopic surgery – after which he did not
require “post-operative orthopedic care.” Id. Respondent also argues that Petitioner has
not received any “SIRVA-related treatment since May 2020” (15 months post
vaccination). Id. He thus compares the facts of Petitioner’s case to the petitioners in Hunt
and Felland.7 Id. at 16-18.
The filed record in this case establishes that Petitioner suffered a moderately-
severe SIRVA overall, significant enough to require surgery but mild enough for his care
to cease almost immediately thereafter (within one month of surgery). Particularly
5 Collado v. Sec'y of Health & Hum. Servs., No. 17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6,
2018) (awarding $120,000.00 for actual pain and suffering); Dobbins v. Sec'y of Health & Hum. Servs., No.
16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for actual pain
and suffering); Cooper v. Sec'y of Health & Hum. Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec.
Mstr. Nov. 7, 2018) (awarding $110,000.00 for actual pain and suffering); Binette v. Sec’y of Health & Hum.
Servs., No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $130,000.00 for
actual pain and suffering); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-261V, 2019 WL 2620957
(Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for actual pain and suffering).
6 Petitioner appears to misinterpret his receipt of two steroid injections for surgical procedures.
7 Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16,
2022) (awarding $95,000.00 for past pain and suffering); Felland v. Sec’y of Health & Hum. Servs., No. 20-
406V, 2022 WL 10724100 (Fed. Cl. Spec. Mstr. Sept. 6, 2022) (awarding $100,000.00 for past pain and
suffering).
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probative is the evidence demonstrating Petitioner’s delay in seeking treatment for over
three months, subsequent treatment with over-the-counter anti-inflammatories, an x-ray
(showing mild AC joint arthrosis), an MRI (indicative of a high grade rotator cuff tear and
moderate AC joint arthrosis), two corticosteroid injections, participation in two rounds of
PT for a total of 18 sessions (plus an HEP), and one arthroscopic surgery – resulting in
lingering effects and pain. Additionally, Petitioner’s medical records contain some
descriptions of his pain on a ten-point scale, including his reports at the beginning of each
round of PT (pre- and post-surgery). See, e.g., Ex. 5 at 5 (a March 6, 2019 PT note
reporting pain at a 6/10 with a range of 5-7/10); Ex. 5 at 50 (a January 7, 2020 PT note
reporting pain at a 6-10/10). Such notations support a moderate SIRVA upon onset,
followed by a worsening of pain while Petitioner healed from surgery.
Petitioner complained of and exhibited reduced ROM to some degree throughout
his treatment course, despite evidence of full ROM upon his first visit in early February
2019. See, e.g., Ex. 3 at 73-74 (a February 21, 2019 orthopedic examination showing
reduced active ROM); Ex. 5 at 5-6 (a March 6, 2019 PT examination revealing “slight
deficits in L shoulder ROM”); Ex. 3 at 69-70 (a March 28, 2019 orthopedic examination
consistent with reduced ROM). Petitioner’s mild or “slight” ROM limitations subsequently
improved throughout 2019 – seemingly around the time of his receipt of his second steroid
injection in March 2019; however, following his treatment with arthroscopic surgery,
Petitioner’s ROM restrictions returned. See, e.g., Ex. 3 at 66 (an April 19, 2019 orthopedic
note that Petitioner’s ROM “ha[d] improved to near normal”); Ex. 3 at 61 (a May 23, 2019
orthopedic examination showing full ROM); Ex. 5 at 50, 67 (January 7 and 24, 2020 PT
examinations revealing diminished ROM and difficulty relaxing the muscles). The medical
records thus show that Petitioner’s limitations in ROM (albeit mild and not continuous)
lasted through (at least) January 2020.
Further, the medical record preponderantly establishes (and Respondent does not
explicitly dispute)8 that Petitioner’s treatment course and ongoing SIRVA symptoms
continued for approximately 15 months – until January 24, 2020. See Opp. at 15. While
Petitioner contends that he was forced to cease treatment as a result of the COVID-19
Pandemic, the filed record does not support this argument. Ex. 1 ¶ 20. In fact, Petitioner
successfully sought treatment for various conditions unrelated to his SIRVA throughout
the remainder of 2020 and beyond. See, e.g., Ex. 10 at 9-10, 112, 136. It is thus not
credible that the Pandemic (which initially manifested in March 2020) was the reason he
discontinued formal shoulder treatment. Rather, it is more likely than not that his
8 Respondent’s argument appears to contain an immaterial error – he contends that Petitioner’s injury
course was 15 months but that it lasted through May of 2020. Opp. at 18. However, he also notes that
Petitioner completed his formal treatment in January 2020 – which is, in fact, 15 months post vaccination.
Id. at 15.
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symptoms were manageable without formal treatment after January 2020 (and hence
before the limitations on care imposed by the Pandemic had even begun).
The severity and duration of Petitioner’s pain, although significant (at times) and
fairly lengthy, is also offset by one five-month treatment gap when Petitioner was
contemplating surgery. See Shelton v. Sec’y of Health & Hum. Servs., No. 19-279V, 2021
WL 2550093, at *7 (Fed. Cl. Spec. Mstr. May 21, 2021) (reducing an award due to a gap
in care). When medical records filed for petitioners reveal comparable gaps, it is proper
to weigh the reason for the gaps against evidence of a petitioner’s purported pain. See
id. Petitioner has not explained this gap in treatment in his affidavit or elsewhere. See Ex.
1. Arguably, the gap could be (at least partially) explained by Petitioner’s receipt of a
steroid injection in March 2019 (resulting in improved ROM on examination) and his
desire to seek a second opinion for his ongoing treatment options (i.e., surgery). However,
without additional context in the record offered by Petitioner, I cannot fully ascertain the
explanation for the gap. Accordingly, such circumstances counsel in favor of interpreting
the gap as evidence of the mildness or stability of the injury, which could be endured
without medical assistance for a steady period of time.
In making his request for pain and suffering, Petitioner has mostly relied on cases
wherein the award was either above or below his requested amount – thus making his
reliance on such cases somewhat unhelpful. Binette v. Sec’y of Health & Hum. Servs.,
No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering); Collado v. Sec'y of Health & Hum. Servs., No.
17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00
for actual pain and suffering); Cooper v. Sec'y of Health & Hum. Servs., No. 16-1387V,
2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for actual
pain and suffering); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-261V, 2019 WL
2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for actual pain and
suffering). Indeed, only one of Petitioner’s cited cases received the requested award in
the instant claim. Dobbins v. Sec'y of Health & Hum. Servs., No. 16-854V, 2018 WL
4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for actual pain and
suffering). Nonetheless, the overall severity and duration of the injury at issue herein is
ultimately distinguishable from Petitioner’s cited comparable decisions.
For instance, in Binette (the case with the highest award out of Petitioner’s cited
comparables - $130,000.00), while the 24-year-old petitioner did not undergo surgery,
this was because the injury was considered inoperable. See 2019 WL 1552620. More so,
Binette’s injury was considered permanent. Id. Although Petitioner here reported
significant pain at the end of his somewhat aggressive treatment course (6-10/10) (Ex. 5
at 67), there is insufficient evidence in the medical records that any of treaters considered
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his injury to be permanent. He also did not seek or require ongoing care (despite a report
of pain at the conclusion of his treatment course) – thus entitling him to a significantly
lesser award than that awarded to the Binette petitioner.
Likewise, in Dobbins (wherein the requested amount of $125,000.00 was awarded
for pain and suffering), the petitioner experienced a more severe injury. See 2018 WL
4611267. Indeed, the petitioner sought treatment within three weeks of the injurious
vaccination, required surgery six weeks post vaccination, treated with 32 sessions of PT,
and experienced severe limitations in ROM. See id. The Dobbins petitioner also
demonstrated personal circumstances that warranted a higher award, including that she
was caring for her terminally ill mother at the time of her treatment and that she
experienced limitations in playing tennis and painting. Id. Petitioner here delayed seeking
treatment for his shoulder pain for over three months post vaccination, did not undergo
surgery for over one year into his treatment course, and only experienced “slight”
limitations in ROM therefore entitling him to a lower award. Additionally, Petitioner did not
describe specific, similar, or unique personal limitations caused by his vaccine-related
injury sufficient to justify his requested award. See generally, Ex. 1.
The remaining cases relied upon by Petitioner are more factually comparable
(albeit not entirely on point). But those petitioners all received lower awards than what is
requested in this case. For instance, the Collado petitioner (awarded $120,000.00) sought
care within two weeks of vaccination, treated for seven months, rated her pain severely
at a 10/10 upon vaccination (and consistently for five months prior to her surgery), and
she experienced a noted 40% improvement following her treatment course. See 2018 WL
3433352. Also, the Collado petitioner underwent a more invasive, open surgical
procedure compared to Petitioner’s arthroscopic surgery. Id.
Cooper (awarded $110,000.00) is distinguishable as well. That petitioner treated
for more than two years and nine months (with specialized treatment including a
chiropractor and massage therapy), but still exhibited residual pain and diminished ROM
following treatment. See 2018 WL 6288181. The Cooper petitioner also exhibited severe
limitations in ROM even two years into her lengthy total treatment course (33 months
versus Petitioner’s 15-month course). See id. While that claimant did not undergo surgery,
she received a higher award than other non-surgical SIRVA cases because she
successfully demonstrated that her injury greatly impacted her personal life – including
with sailing and an active lifestyle, which was the foundation of her marriage. Id. Petitioner
here has not made a comparable showing.
It is the case that more often than not, I deem a six-figure award appropriate in
SIRVA cases where surgery was required. But there is no hard and fast rule to this effect.
15

Case 1:20-vv-01970-UNJ Document 50 Filed 12/31/24 Page 16 of 17
See Gray v. Sec’y of Health & Hum. Servs., No. 20-1708V, 2022 WL 6957013, at *5 (Fed.
Cl. Spec. Mstr. Sept. 12, 2022) (stating that “an award of at least $100,000.00 is not
automatically appropriate for all SIRVA injuries simply because arthroscopic surgery was
involved.”). And I have awarded less than $100,000.00 in several cases featuring surgery,
including one of Respondent’s cited cases, where the specific circumstances of the claim
merit a lower award. See, e.g., Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V,
2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 for past
pain and suffering); see also Shelton, 2021 WL 2550093 (awarding $97,500.00 for pain
and suffering wherein the petitioner underwent surgery but delayed seeking treatment for
five months post vaccination, followed by an additional three-month delay before seeking
further treatment).
The cases Respondent relies upon for support (awarding greater compensation
than that recommended by Respondent in this case) provide guidance for a fair award in
the instant claim. The petitioner in Felland, for example, treated within 34 days of
vaccination, for a total of one year. Felland v. Sec’y of Health & Hum. Servs., No. 20-
406V, 2022 WL 10724100 (Fed. Cl. Spec. Mstr. Sept. 6, 2022) (awarding $100,000.00
for past pain and suffering). Felland received care similar to Petitioner, including over-
the-counter anti-inflammatories, two steroid shots, and one arthroscopic surgery. See id.
The Felland petitioner likewise only suffered from slightly limited ROM. Id. But Mr. Shields
delayed seeking treatment for over 100 days – three times longer than the Felland
petitioner, and comparably had one MRI (versus Felland’s two MRIs). A slightly lesser
award is therefore appropriate in Petitioner’s case.
Overall, the best comparable offered in this case involved a $95,000.00 past pain
and suffering award. See Hunt, 2022 WL 2826662.9 The Hunt petitioner sought treatment
for shoulder pain within roughly three weeks of vaccination, received three steroid
injections (providing relief correlating to small gaps in treatment), rated her pain ranging
from a 1-8+/10 throughout her treatment course, underwent 19 total PT sessions (pre-
and post-surgery), and underwent one arthroscopic procedure. Id. Both the Hunt
petitioner and Petitioner in this case treated for a total of 15 months and experienced
periods of little to no pain – as evidenced by some gaps in treatment. Therefore, the same
sum is properly awarded.
9 Although at SPU “Motions Day” proceedings I often chastise Respondent for over-reliance on Hunt, this
matter presents exactly the kind of circumstances where it stands as a reasonable comparable for
guidance.
16

Case 1:20-vv-01970-UNJ Document 50 Filed 12/31/24 Page 17 of 17
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that the onset of Petitioner’s injury, specifically shoulder pain, was within 48 hours
of his vaccine and he has otherwise satisfied the requirements for a Table SIRVA
claim. Further, based on the evidence of record, I find that Petitioner is entitled to
compensation.
I also find that, for all of the reasons discussed above and based on consideration
of the record as a whole, $95,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.10
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they
file notices renouncing their right to seek review.
17

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_20-vv-01970-cl-extra-10813647
Date issued/filed: 2025-02-27
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10347059
--------------------------------------------------------------------------------
    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 20-1970V


    DON SHIELDS,
                                                             Chief Special Master Corcoran
                         Petitioner,
    v.                                                       Filed: January 27, 2025


    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                        Respondent.


Sean Franks Greenwood, The Greenwood Law Firm, Houston, TX, for Petitioner.

Sarah Rifkin Black, U.S. Department of Justice, Washington, DC, for Respondent.


                       DECISION ON ATTORNEY’S FEES AND COSTS1

      On December 23, 2020, Don Shields 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”) caused by an influenza vaccine administered on October 24,
2018. Pet. at 1. On November 26, 2024, I issued a ruling finding Petitioner entitled to
compensation and decision awarding damages following briefing by the parties. ECF No.
41.


1Because 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).
       Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $21,563.81 (representing $20,859.65 for attorney’s fees and $704.16 for attorney’s
costs). Petitioner Application for Attorneys’ Fees, filed Dec. 6, 2024, ECF No. 46; Billing
Records and Receipts, filed Dec. 6, 2024, ECF No. 45. In accordance with General Order
No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket
expenses. ECF No. 47.

        Respondent reacted to the motion on December 11, 2024, representing that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring resolution of the amount to be awarded to my discretion.
Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 48. Petitioner filed no reply.

      Having considered the motion along with the invoices and other proof filed in
connection, I find a reduction in the amount of costs to be awarded appropriate, for the
reason set forth below.

                                       ANALYSIS

        The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed.
Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.
Servs., 102 Fed. Cl. 719, 729 (2011).

       The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
                                            2
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.

                                         ATTORNEY FEES

      The rates requested for work performed through the end of 2024 are reasonable
and consistent with our prior determinations, and will therefore be adopted.3

       Regarding the time billed, I note this case required additional briefing regarding
entitlement and damages. See Petitioner’s Motion for Ruling on the Record, filed Oct. 17,
2023, ECF No. 39. Petitioner’s counsel expended approximately 19.3 hours drafting the
motion and 1.9 hours reviewing Respondent’s response. ECF No. 45-2 at 9-10. I find this
amount of time to be reasonable and will award the attorney’s fees requested.

                                        ATTORNEY COSTS

       Petitioner has provided supporting documentation for all but expenses of $6.00 in
costs. ECF No. 45-2 at 11; ECF No 45-3. The $6.00 costs which lacks supporting
documentation is described appears to be a notary fee. ECF No. 45-2 at 11. There is no
additional documentation or information showing whether this was a cost paid to an
outside notary or is a portion of the cost of maintaining notary status for a member of
Petitioner’s counsel’s firm. If the later, the cost is considered overhead and not
reimbursable under the Vaccine Program. I will, however, reimburse the remainder of the
costs - $698.16.


                                                CONCLUSION

      The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). I award a total of $21,557.81 (representing
$20,859.65 for attorney’s fees and $698.16 for attorney’s costs) to be paid through
an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement.



3 Regarding this issue, I would note that the bar admission date listed for Ms. Kayleigh Smith (2015) does

not match what our internal records show, or what is publicly available (2016). Petitioner’s counsel should
check this date and clarify in future motions which year is correct.
                                                    3
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk of Court shall enter judgment in accordance with this Decision.4

IT IS SO ORDERED.

                                                      s/Brian H. Corcoran
                                                      Brian H. Corcoran
                                                      Chief Special Master




4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
                                                 4