VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00027
Package ID: USCOURTS-cofc-1_21-vv-00027
Petitioner: Candice Killpack
Filed: 2019-10-03
Decided: 2023-07-03
Vaccine: influenza
Vaccination date: 2019-10-03
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 73000

AI-assisted case summary:
Candice Killpack, an adult, received an influenza vaccine on October 3, 2019. She alleged that this vaccine caused a shoulder injury related to vaccine administration (SIRVA). Ms. Killpack first complained of left shoulder pain on October 24, 2019, reporting immediate onset of pain after the vaccination. Her symptoms included pain, limited range of motion, and weakness, which persisted intermittently for approximately two years. She underwent multiple medical evaluations, physical therapy sessions, and received three cortisone injections. The respondent argued that Ms. Killpack had not met the severity requirement of the Vaccine Act. However, the court found that Ms. Killpack met the criteria for a Table SIRVA, including no prior shoulder condition, onset within 48 hours of vaccination, pain limited to the affected shoulder, and no other explanatory condition. The court also found that she met the statutory six-month severity requirement. The case proceeded to damages, with Ms. Killpack requesting $90,000 and the respondent suggesting $70,000. After considering the severity and duration of her injury, the court awarded Ms. Killpack $73,000 for actual pain and suffering.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00027-0
Date issued/filed: 2023-07-03
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 06/02/2023) regarding 44 DECISION of Special Master, Ruling on Entitlement, Order on Motion for Ruling on the Record. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:21-vv-00027-UNJ Document 53 Filed 07/03/23 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-27V
UNPUBLISHED
CANDICE KILLPACK, Chief Special Master Corcoran
Petitioner, Filed: June 2, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Statutory Six Month Requirement
Respondent. Influenza (Flu); Shoulder Injury
Related to Vaccine Administration
(SIRVA)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On October 3, 2019, Candice Kilpack 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on October
3, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”). The parties disputed both compensation and the amount
to be awarded, so the matter was submitted for an SPU Motions Day hearing.
1 Because this unpublished ruling contains a reasoned explanation for the action taken in this case, it must
be made publicly accessible and will be posted on the United States Court of Federal Claims' website,
and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic
Government Services). This means the Ruling 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 1:21-vv-00027-UNJ Document 53 Filed 07/03/23 Page 2 of 11
For the reasons described below I find that Petitioner is entitled to compensation,
and I award $73,000.00 in damages, representing compensation for actual pain and
suffering.
I. Relevant Procedural History
More than a year after the case’s initiation, Petitioner filed a status report in May
2022 requesting permission to file a motion for a ruling on the record. ECF No. 31.
Petitioner filed a motion for a ruling on the record and a brief in support of damages on
June 17, 2022. Petitioner’s Motion for Ruling on the Record and Brief in Support of
Damages (“Mot.”), ECF No. 34. Petitioner argued therein that she had met the table
definition of a SIRVA (id. at 12-15), and requested an award of $90,000.00 for actual pain
and suffering. Id. at 26.
Respondent filed his opposition on September 1, 2022. Respondent’s Rule 4(c)
Report/Response to Petitioner’s Motion for Ruling on the Record and Damages Brief
(“Opp.”), ECF No. 38. Respondent argued that Petitioner had not met the severity
requirement of the Vaccine Act. Id. at 10-11. Respondent also argued that an award of
not-more-than $70,000.00 for pain and suffering is more appropriate in this case
(assuming entitlement had been determined). Id. at 23.
Petitioner filed a reply on September 15, 2022, addressing Respondent’s
arguments. Petitioner’s Reply in Support of Petitioner’s Motion for Ruling on the Record
and Brief in Support of Damages (“Reply”), ECF No. 39.
II. Petitioner’s Medical Records
A complete recitation of the facts can be found in the Petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) Report.
Petitioner received a flu vaccine on October 3, 2019. Ex. 10.3 She first complained
of left shoulder pain on October 24, 2019 to Dr. German Ellsworth at Layton WorkMed,
describing her pain level as six out of ten. Ex. 3 at 4. Dr. Ellsworth documented the date
of injury as October 3, 2019, and noted Petitioner reported immediate onset of pain. Id.
She continued to complain of shoulder pain in November and saw Dr. Ellsworth again on
November 12, 2019. At that time, she showed a limited range of motion, pain, and some
weakness. Ex. 3 at 5.
3 The vaccine record does not indicate the site of administration, and Petitioner has confirmed that her
employer did not retain a copy of the consent form. Ex. 14 at 1.
2

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On December 11, 2019, Petitioner was evaluated for physical therapy. Ex. 3 at 8.
Petitioner reported pain levels as five out of ten, and a cortisone injection was
administered. Id. at 8-9. On December 12, 2019, Petitioner had her first physical therapy
sessions, and reported numbness and tingling, loss of strength, and difficulty with daily
tasks due to her injury. Ex. 13 at 14. Petitioner attended a second physical therapy
session on December 16, 2019, reporting increased pain “for unknown reason”. Ex. 5 at
42-49.
Petitioner had a follow-up at Layton WorkMed on December 17, 2019. Ex. 3 at 8.
Her pain was described as three out of ten, and occurred with movement (especially
overhead), and sleeping. She was told to discontinue physical therapy because it was not
helpful. Id. A day later, Petitioner was evaluated at Intermountain Orthopedic for constant
left shoulder pain that started after a flu vaccine. Ex. 11 at 120. Her symptoms were
“suggestive of a frozen shoulder” and another cortisone injection was administered. Id.
Petitioner sought medical care twice in the winter of 2020. On January 14, 2020,
Petitioner presented to urgent care for vomiting, body aches, painful urination, and low
back pain. Ex. 12 at 4-5. She also had an obstetrics and gynecology appointment on
February 19, 2020. Ex. 12 at 9-19. There was no record of shoulder pain at either
appointment.
The next reference to shoulder pain in a medical record occurred six months later,
on June 30, 2020, when Petitioner returned to Intermountain Orthopedic for “steadily
increasing” shoulder pain. Ex. 11 at 70. Her pain was noted as “likely tendinopathy
related”, and a third steroid injection was administered. Id. The record notes that
Petitioner was “had not had any home exercises or physical therapy”, and that she had
three months of relief after the December 19, 2019, steroid injection. Id.
Petitioner next reported shoulder pain that had been increasing over the past few
weeks on October 6, 2020. Ex. 11 at 39. She was assessed with tendinopathy in the
biceps, supraspinatus, infraspinatus tendons, subacromial impingement, and bursa
swelling. Id. She received a third cortisone injection on October 7, 2020, and was
diagnosed with subacromial tendinitis of the left shoulder. Ex. 11 at 7. Petitioner attended
three more physical therapy sessions between October 22 and November 19, 2020,
which did not provide much relief. Ex. 1 at 233-39, Ex. 18 at 686-89. The physical therapy
records note that Petitioner’s injury resulted “from a flu shot last year.” Id. at 233. An MRI
on November 25, 2020, revealed minimal tendinosis without evidence of a focal rotator
cuff tear. Ex. 9 at 5.
3

Case 1:21-vv-00027-UNJ Document 53 Filed 07/03/23 Page 4 of 11
Her next complaint of shoulder pain was nine months later, on August 13, 2021.
Ex. 18 at 399. She reported pain levels of one or two at rest, but six to seven out of ten
when sleeping or moving her arm.
III. Affidavit Evidence
Petitioner submitted three affidavits in support of her claim. Ex. 2, 15, 16. Therein,
Petitioner describes her injury and course or treatment, and how her injury impacted her
life.
IV. Parties’ Arguments
Petitioner argues that she is entitled to compensation because she meets the six-
month severity requirement (Reply at 1-2) and the requirements for a SIRVA as described
in the Vaccine Injury Table. Mot. at 12-15. Respondent argues that Petitioner has not met
the severity requirement of the Vaccine Act. Opp. at 10-11.
V. 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,4 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).
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:
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
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).
4

Case 1:21-vv-00027-UNJ Document 53 Filed 07/03/23 Page 5 of 11
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
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, 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 &
5

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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. Petitioner Meets the Severity Requirement
The first issue to be resolved is whether Petitioner has demonstrated that she
suffered “residual effects or complications of [the injury alleged] for more than six months
after the administration of the vaccine,” as required for eligibility under the Vaccine
Program. Section 11(c)(1)(D)(i).
There is no dispute that Petitioner received the flu vaccine on October 3, 2019,
and she therefore must demonstrate by preponderant evidence that her residual
symptoms continued at least through April 3, 2020. See, e.g., Herren v. Sec'y of Health
& Human Servs., No. 13-100V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18,
2014); see also Hinnefeld v. Sec'y of Health & Human Servs., No. 11-328V, 2012 WL
1608839, at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical
history revealed that petitioner's Guillain-Barré syndrome resolved less than two months
after onset).
The record establishes that Petitioner’s initial treatment occurred between October
24 and December 18, 2019, followed by a six-month gap. However, when she returned
for additional treatment she continued to report that her shoulder pain was linked to the
vaccination, supporting the conclusion that she continued to experience the effects of her
injury even during the period of non-treatment. Ex. 1 at 233. Further, in June 2020 she
described her pain as steadily increasing, but that she had three months of relief since
the steroid injection. Ex. 1 at 109-10. It is reasonable that she delayed in seeking
treatment in early 2020 because the cortisone injection was initially successful, but after
it wore off decided to continue treating.
Respondent notes that she had two intervening medical appointments that did not
mention shoulder pain in the winter of 2020. Opp. at 10-11. The cited appointments,
however, were for unrelated medical issues, including an urgent care visit and a
gynecology exam. It is understandable that she would not mention her shoulder pain
during these visits. Accordingly, severity is established on this record.
B. 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. No Prior Left Shoulder Condition or Injury Would Explain
Petitioner’s Symptoms
6

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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 I find that she has demonstrated a lack of history of pain,
inflammation, or dysfunction of her left shoulder that would explain her symptoms.
2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of
her Vaccination
The medical records also, establish onset of her injury close-in-time to vaccination.
Petitioner first sought treatment on October 24, 2019, and reported immediate pain
following the vaccination. Ex. 3 at 4. In the subsequent timeframe, she consistently
reported to treaters that she had experienced symptoms since the vaccination. Ex. 11 at
118 (December 18, 2019 record stating that Petitioner has had constant pain since flu
shot “about 2 months ago”).
3. Petitioner’s Pain was Limited to her Left Shoulder
I also find that there is a preponderance of evidence that Petitioner’s pain was
limited to her left shoulder. Respondent does not contest this aspect of Petitioner’s claim,
and the records consistently report shoulder pain and loss of range of motion in her left
shoulder, which is consistent with other SIRVA cases. Petitioner’s medical procedures
were also limited to her left shoulder. Accordingly, preponderant evidence establishes
that Petitioner’s pain was limited to her left shoulder.
4. There is No Evidence of Another Condition or Abnormality
The last criteria for a Table SIRVA state 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 does not contest this aspect of Petitioner’s claim, and there
is nothing in the records to suggest that any such condition or abnormality exists.
C. 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.
7

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The record shows that Petitioner received a flu vaccine intramuscularly on October
3, 2019, in the United States. Ex. 2 at 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 her injury. Ex. 2 at 2; Section 11(c)(1)(E) (lack of prior civil award).
As stated above 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). I have also
found that there is no other condition which would explain Petitioner’s current symptoms.
42 C.F.R. § 100.3(a)(XIV)(B). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the duration of his
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his or her left shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement). As
discussed above, the records demonstrate that Petitioner suffered the residual effects of
her shoulder injury for more than six months. Thus, this requirement is also met.
Based upon all of the above, Petitioner has established that she suffered a Table
SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
VI. Damages
The parties have also briefed damages in this case. Petitioner requests an award
of $90,000.00 for actual pain and suffering. Mot. at 27; Reply at 10. Respondent argues
that the record only supports an award of $70,000.00 for past pain and suffering. Opp. at
22.
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 in 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).
8

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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.5
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of that injury to be considered. In determining appropriate compensation for pain
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.
Ms. Killpack asserts that the severity of her injury is comparable to six cases
awarding between $85,000.00 and $100,000.00 for pain and suffering.6 In particular,
Petitioner emphasizes that she suffered a moderate to severe SIRVA with significant pain
for over two years, and treated through physical therapy, x-rays, numerous medical visits,
and cortisone injections. Mot. at 25-26. She thus deems $90,000.00 a fair sum for actual
pain and suffering.
5 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)).
6Young v. Sec’y of Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4,
2019) (awarding $100,000 in pain and suffering); Gentile v. Sec’y of Health & Human Servs., No. 16-980V,
2020 WL 3618909, at 1–2 (Fed. Cl. June 5, 2020) (awarding $85,000 for pain and suffering, and $500/year
in future pain and suffering); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922
(Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000 for pain and suffering, and $10,000 in future pain
and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-399V, 2019 WL 2521540 (Fed. Cl. Apr.
9, 2019) (awarding $85,000 for pain and suffering); Harper v. Sec’y of Health & Human Servs., No. 18-
202V, 2021 WL 5231980 (Fed. Cl. Spec. Mstr. Oct. 8, 2021) (awarding $92,000 for pain and suffering);
Accetta v. Sec’y of Health & Human Servs., No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec. Mstr. Mar.
31, 2021) (awarding $95,000 for pain and suffering).
9

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Respondent, by contrast, submits that an award of $70,000.00 is appropriate. Opp.
at 19-23. Petitioner suffered a comparatively minor injury, and received intermittent
treatment with several large gaps between medical care. Respondent cites to Knauss v.
Sec’y of Health & Hum. Servs. in support of his argument. No. 16-1372V, 2018 WL
3432906 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000.00 for past pain and
suffering).
Based on the medical records, I conclude that Ms. Killpack suffered a mild-to-
moderate SIRVA for approximately twenty-four months. She sought treatment soon after
her vaccination, and initially her pain was mostly reported as moderate to severe (three-
to-eight out of ten) for the first three months. Further, while she treated for over two years,
there were significant periods of little to no pain following steroid injections. For example,
following the first steroid injection in 2019 she reported no pain for three months and did
not seek treatment for six months. There was another significant gap in treatment
between November 2020 and August 2021, indicating that she did not experience much
pain during that time. Further, Petitioner’s treatment was not very extensive, consisting of
three cortisone injections, an MRI, X-rays, but only six physical therapy sessions. And
she never obtained any surgical treatment either.
The overall severity of the injury at issue herein is thus not high enough to warrant
the $90,000.00 requested by Petitioner in her motion. I note that the SIRVA cases cited
by Petitioner involved more significant treatment over longer periods of time. For example,
in Cooper, the petitioner’s treatment consisted of thirty-five physical therapy session over
two years, and moderate pain reported for that time. Cooper, 2018 WL 6288181 at *12.
In contrast, here Petitioner attended only two physical therapy sessions and reported
significantly lower pain levels throughout her treatment period.
By contrast, I agree with Respondent that this case is more comparable to cases
that awarded below-median amounts for a SIRVA. Opp. at 22-23. Further, I find this case
most analogous to Allner v. Sec’y of Health & Hum. Serv., No. 19-1048, 2022 WL
6962656 (Fed. Cl. Spec. Mstr. Sept. 9, 2022) (awarding $60,000.00 for actual pain and
suffering). Both Petitioner and the injured in Allner experienced a mild SIRVA, underwent
treatment over several years, and exhibited a good recovery. Id. at *5-6. However, while
Allner involved a longer treatment period, the petitioner there delayed in seeking
treatment.
I also note that, like in Allner, Petitioner required minimal treatment or medical
intervention for significant periods of time. Notably, there are multiple, lengthy gaps in
Petitioner's treatment, suggesting that her pain was not so severe as to require frequent
10

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medical attention. The fact that Petitioner could cope with her injury during these periods
counsels in favor of a lower pain and suffering award.
Taking all of the above into account, I find that $73,000.00 for pain and suffering
is fair compensation.
VII. Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that Petitioner has satisfied the Table requirements for a SIRVA and 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, $73,000.00 represents a fair and appropriate amount of
compensation for Ms. Killpack actual pain and suffering.7 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.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 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)).
8 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.
11