VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00030
Package ID: USCOURTS-cofc-1_21-vv-00030
Petitioner: Shawn McKenna
Filed: 2021-01-04
Decided: 2023-08-08
Vaccine: influenza
Vaccination date: 2019-12-24
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 65000

AI-assisted case summary:
Shawn McKenna filed a petition for compensation under the National Vaccine Injury Compensation Program on January 4, 2021, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on December 24, 2019. Petitioner, who was 34 years old at the time of vaccination, reported left shoulder pain nine days after receiving the vaccine. While Mr. McKenna had a history of left shoulder issues, including a significant injury from a fall in 2017 involving a labral tear and rotator cuff tear for which he opted for conservative treatment, the respondent conceded entitlement. The respondent determined that Mr. McKenna's current complaints were not adequately explained by the prior injury and that SIRVA is a "Table" injury. The case proceeded to a damages decision. Mr. McKenna's medical records indicated he experienced left shoulder pain and limited range of motion following vaccination. He received multiple steroid injections and underwent physical therapy. An MRI in November 2020 showed thinning and partial-thickness tearing of the supraspinatus and infraspinatus tendons, an extensive labral tear with partial detachment, and mild subacromial subdeltoid bursitis. The public decision does not describe the specific mechanism of injury or name any medical experts. Chief Special Master Brian H. Corcoran presided over the case. After reviewing the medical records, declarations, and arguments from both parties, Chief Special Master Corcoran found that Mr. McKenna suffered a moderate to mild SIRVA injury for approximately thirteen months. The Special Master noted a significant gap in treatment for nearly 21 months, from January 2021 until October 2022, which undermined the claim of persistent severity. Considering the severity, duration, treatment history, and comparing it to prior SIRVA cases, the court awarded Mr. McKenna $65,000.00 for actual pain and suffering. The award was issued on August 8, 2023.

Theory of causation field:
Petitioner Shawn McKenna filed a petition alleging a Shoulder Injury Related to Vaccine Administration (SIRVA) following an influenza vaccine on December 24, 2019. SIRVA is a "Table" injury under the National Vaccine Injury Compensation Program. The respondent conceded entitlement, agreeing that Petitioner met the criteria for SIRVA and that his pre-vaccination left shoulder complaints did not adequately explain his post-vaccination symptoms. The case proceeded to a damages determination. Petitioner's medical records indicated left shoulder pain and limited range of motion post-vaccination, with treatment including multiple steroid injections and physical therapy. An MRI showed tendon and labral tears. Chief Special Master Brian H. Corcoran presided. The Special Master found the injury to be moderate to mild, lasting approximately thirteen months, with a significant 21-month gap in treatment. The Special Master awarded $65,000.00 for actual pain and suffering on August 8, 2023. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Amanda Pasciuto of the U.S. Department of Justice. The public decision does not detail the specific mechanism of injury or name medical experts.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00030-0
Date issued/filed: 2022-11-23
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/24/2022) regarding 36 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00030-UNJ Document 38 Filed 11/23/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0030V
UNPUBLISHED
SHAWN MCKENNA, Chief Special Master Corcoran
Petitioner, Filed: October 24, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 4, 2021, Shawn McKenna 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”), a defined Table injury, after receiving the influenza (“flu”)
vaccine he received on December 24, 2019. Petition at 1, ¶¶ 3, 15. Petitioner further
alleges he received the vaccine within the United States, that he continues to suffer the
residual effects of his injury more than six months post-vaccination, and that neither he
nor any other party has filed a civil action or received compensation for his injury. Petition
at ¶¶ 3, 16-17. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:21-vv-00030-UNJ Document 38 Filed 11/23/22 Page 2 of 2
On October 21, 2022, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
6. Specifically, Respondent believes that “[P]etitioner has satisfied the criteria set forth in
the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”)
for SIRVA.” Id. Regarding Petitioner’s prior left shoulder pain, he notes that Petitioner had
been pain free for two and a half years and states that he “do[es] not consider
[P]etitioner’s pre-vaccination left shoulder complaints to be an adequate explanation for
his alleged symptoms and examination findings following his flu vaccine.” Id. at 7 n.10.
Respondent further agrees that “[P]etitioner has satisfied all legal prerequisites for
compensation under the Act.” Id. at 7.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00030-1
Date issued/filed: 2023-08-08
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 07/07/2023) regarding 44 DECISION of Special Master, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 1 of 12
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0030V
SHAWN MCKENNA, Chief Special Master Corcoran
Petitioner, Filed: July 7, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 4, 2021, Shawn McKenna filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”)
vaccine administered on December 24, 2019. Petition at 1, ¶¶ 3, 19. Because the parties
reached an impasse in their settlement discussions,3 I ordered briefing on entitlement and
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
3 After approximately two months of settlement discussions, the parties requested that I determine
entitlement. Status Report, filed Aug. 29, 2022, ECF No. 28. Petitioner also asked that I determine the
appropriate amount of damages. Id.; see Petitioner’s Motion for Ruling on the Record and Brief in Support
of Damages (“Brief”), filed Oct. 18, 2022, ECF No. 33.

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 2 of 12
damages together. Thereafter, Respondent conceded entitlement, and the parties
completed their briefing on damages.4
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $65,000.00 for actual pain and suffering.
I. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
4 Respondent’s Rule 4(c) Report, filed Oct. 21, 2022, ECF No. 34; Respondent’s Brief on Damages (“Opp.”),
filed Feb. 1, 2023, ECF No. 42; Petitioner’s Reply in Support of Brief (“Reply”), filed Feb. 13, 2023, ECF
No. 43.
2

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 3 of 12
predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by a decision of the
Court of Federal Claims several years ago. Graves v. Sec’y of Health & Hum. Servs., 109
Fed. Cl. 579 (Fed. Cl. 2013). Graves instead emphasized the importance of assessing
pain and suffering by looking to the record evidence specific to the injured individual, prior
pain and suffering awards within the Vaccine Program, and a survey of similar injury
claims outside of the Vaccine Program. Id. at 595. Under this approach, the statutory cap
merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all
possible awards as falling within a spectrum that ends at the cap. Although Graves is not
controlling of the outcome in this case, it provides reasoned guidance in calculating pain
and suffering awards.
II. Prior SIRVA Compensation Within SPU6
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2023, 3,304 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 3,211 of these cases, with the remaining 93
cases dismissed.
1,834 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that petitioner was entitled to compensation (as opposed to a settlement or concession).7
5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
6 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
7 The remaining 1,377 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
3

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 4 of 12
In only 173 of these cases, however, was the amount of damages also determined by a
special master in a reasoned decision.8 As I have previously stated, the written decisions
setting forth such determinations, prepared by neutral judicial officers (the special masters
themselves), provide the most reliable precedent setting forth what similarly-situated
claimants should also receive.9
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated10
Decisions by Damages Damages Agreement
Special Master
Total Cases 173 1,632 29 1,377
Lowest $40,757.91 $22,500.00 $45,000.00 $5,000.00
1st Quartile $70,203.12 $62,825.18 $90,000.00 $38,134.81
Median $92,299.83 $83,039.25 $130,000.00 $55,000.00
3rd Quartile $125,000.00 $111,475.61 $162,500.00 $80,803.17
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 173 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$40,000.00 to $215,000.00, with $90,000.00 as the median amount. Only seven of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.11
8 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (1,632 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
9 Of course, even though any such informally-resolved case must still be approved by a special master,
these determinations do not provide the same judicial guidance or insight obtained from a reasoned
decision. But given the aggregate number of such cases, these determinations nevertheless “provide some
evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Hum.
Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the
difference between cases in which damages are agreed upon by the parties and cases in which damages
are determined by a special master).
10 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
11 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
4

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 5 of 12
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In six cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
III. Factual History
The medical records reveal that prior to vaccination, Petitioner (34 years old at the
time) suffered knee, left shoulder, and neck pain. Exhibits 4, 7, 10-11. Despite these
conditions, Petitioner remained active, participating in triathlons – running and swimming.
E.g., Exhibit 7 at 11.
Notably, in March 2017, Petitioner sustained a fall while shoveling snow which
resulted in an injury to his left shoulder causing “l[eft] shoulder pain with large labral tear,
including SLAP[12] and AIGHL[13], small focal full thickness supraspinatus tear.” Exhibit 7
at 6. Despite his orthopedist’s recommendation of arthroscopic surgery, Petitioner opted
12 SLAP stands for “superior labral anteroposterior.” MEDICAL ABBREVIATIONS at 552 (16th ed. 2020).
13 AIGHL stands for “anterior band of the inferior glenohumeral ligament.” MEDICAL ABBREVIATIONS at 46.
5

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 6 of 12
for more conservative treatment. Id. He attended PT from April through July 2017, and
underwent an ultrasound-guided steroid injection on June 16th. Id. at 12; Exhibit 11 at 7-
17.
In March 2018, Petitioner complained of neck pain. Exhibit 4 at 23. X-rays were
taken, and Petitioner was diagnosed with cervicalgia and muscle spasms. Id. at 24. He
was prescribed oral steroids and PT. Id.; Exhibit 10 at 3-113. Later in 2018, he also
received treatment for right knee pain. Exhibit 4 at 18-21; Exhibit 10 at 114-71.
On December 24, 2019, Petitioner received the flu vaccine, administered
intramuscularly in his left deltoid. Exhibit 1. Nine days later on January 2nd, he sought
treatment for left shoulder pain, described as “aching in quality and moderate in intensity.”
Exhibit 14 at 9.
At his next appointment on January 31, 2020, Petitioner exhibited “[m]arkedly
limited range of motion due to pain raising the possibility of adhesive capsulitis.” Exhibit
3 at 32. During the administration of an ultrasound-guided steroid injection into the
subdeltoid bursal, Petitioner was observed as having normal biceps, subscapularis,
supraspinatus, and infraspinatus tendons; supraspinatus, infraspinatus, and teres minor
muscles; and AC joint and no subdeltoid bursa fluid or glenohumeral joint effusion. Id.
Obtaining good relief from the January injection, Petitioner did not return for further
treatment until four months later on June 2, 2020. Exhibit 4 at 6. Describing a “burning
deep ache,” he reported a return of “discomfort” for the last month. Id. He was assessed
as having “suspected subdeltoid bursitis following flu vaccination” and “capsulitis of [the]
left shoulder.” Id. at 7. When Petitioner was seen in person on June 18th, however, the
orthopedist observed that he “demonstrate[d] good, pain-free ROM.” Exhibit 4 at 4.
Although not ultrasound-guided, a second steroid injection was administered into
Petitioner’s bursa. Id. at 5.
At his next orthopedic appointment on October 12, 2020, Petitioner reported that
“[h]e derived no benefit from the last subacromial injection that he received.” Exhibit 5 at
3. He exhibited 170 degrees of forward flexion with “pain through the impingement zone”
and internal and external arm rotation of sixty degrees, as opposed to the normal range
of 90 degrees. Id. The orthopedist ordered an MRI (id. at 4), performed on November 5th,
which showed “[t]hinning and partial-thickness bursal surface and interstitial tearing of the
supraspinatus and infraspinatus tendons, [n]o full thickness rotator cuff tear, [e]xtensive
labral tear with partial detachment, [f]ocal bone marrow edema at the greater tuberosity,
. . . [f]ocal subacromial spur, [and] [m]ild subacromial subdeltoid bursitis” (Exhibit 5 at 7).
6

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On January 8, 2021, Petitioner visited a different orthopedist, seeking treatment
for his left shoulder pain. Exhibit 18 at 6. Indicating he had undergone therapy and multiple
injections, and had also been prescribed a Medro Dosepak,14 Petitioner reported pain
since receiving a flu vaccine on Christmas Eve of 2019. An entry included in this medical
record mentions Petitioner’s “history of a partial cuff and SLAP tear after he fell shoveling
snow.” Id. Upon examination, Petitioner exhibited normal ROM and strength with no
scapular winging, deformities, or point tenderness. Id. at 6-7.
The orthopedist informed Petitioner that the next step would be arthroscopic repair
of Petitioner’s labral repair and rotator cuff debridement, and ordered another ultrasound-
guided steroid injection. Exhibit 18 at 7. During the injection (performed on January 29,
2021), Petitioner was again observed to have a normal biceps tendon; subscapularis,
supraspinatus, and infraspinatus tendons; supraspinatus, infraspinatus, and teres minor
muscles; and AC joint and no subdeltoid bursitis or shoulder joint effusion. Id. at 8; see
also Exhibit 13 at 8 (facility’s record of ultrasound-guided injection).
In his first declaration,15 signed on February 18, 2021, Petitioner described
numerous limitations in his abilities to perform daily tasks such as driving and taking out
the trash, to exercise as he previously had, and to perform his job. Exhibit 2 at ¶¶ 9-16.
He also indicated that his PCP prescribed a round of oral steroids on January 2, 2020, an
assertion not supported by the medical records. Compare id. at ¶ 12 with Exhibit 3 at 19-
28 (showing only an order for x-rays and no additional medication).
Petitioner did not seek treatment again until October 18, 2022, when he returned
to his PCP, complaining of “increased pain with movement and decreased ROM.” Exhibit
16 at 1 (no capitalized letters in the original). Petitioner again reported undergoing PT,
adding that he “[w]as most helped by ultrasound guided injections.” Id. Providing a referral
to the orthopedist who treated Petitioner in January 2021, the PCP recommended PT and
another ultrasound-guided steroid injection, expected to be administered on October 22nd.
Id. at 2. It is not clear whether Petitioner underwent this further treatment as no additional
medical records were filed.
On October 18th, Petitioner also signed and filed a supplement declaration,
maintaining that “the pain in [his] shoulder ha[d] not subsided and [he] continues[d] to
suffer from physical limitations because of the injury.” Exhibit 15 at ¶ 7. He also provided
additional details regarding his 2017 fall and shoulder injury, maintaining that he suffered
14 There is no evidence in the medical records indicating Petitioner attended PT or was prescribed oral
steroids.
15 Petitioner’s declaration was signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Exhibit
2.
7

Case 1:21-vv-00030-UNJ Document 49 Filed 08/08/23 Page 8 of 12
only “a slight labrum tear [which] . . . never stopped [him] from doing activities of daily
living, tasks in and around the house, competing in athletic events, and doing any of the
things [he] wanted in a pain free manner.” Id. at ¶ 4. Indicating his doctor had
recommended against any surgery in 2017, he underwent only limited PT and
experienced no pain after August 2017. Id.
IV. The Parties’ Arguments
Emphasizing his swift report of shoulder pain and the overall duration of his injury
(charactered as ongoing more than three years post-vaccination), Petitioner seeks
$85,000.00 for past and future pain and suffering. Brief at 1, 20. He favorably compares
the facts and circumstances in his case with those suffered by the petitioners in T.E,
Hartman, Decoretz, Bergstrom, Russano, and Accetta16 - decisions featuring awards
ranging from $70,000.00 to $95,000.00. Brief at 17-23. Arguing that the overall duration
of his injury was longer than those suffered by the petitioners in T.E., Hartman, and
Decoretz, - listed as “just under six months, five months, and approximately ten months,
respectively,” Petitioner maintains that his pain and suffering award should be greater. Id.
at 23. When comparing the facts and circumstances in his case to those in Bergstrom, he
highlights the Bergstrom petitioner’s three-month delay before seeking treatment and
insists that he “did not have breaks in his treatment and treated more consistently than
the petitioner in Bergstrom.” Id. (underlining rather than italics in the original).
Respondent, by contrast, deems Petitioner’s injury as mild and his treatment as
limited, and thus proposes the lesser sum of $65,000.00 for actual/past pain and
suffering. Opp. at 1, 6-7. Mentioning the lack of prescribed PT or pain medication, several
gaps in treatment, and the temporary relief provided by multiple steroid injections, he
portrays Petitioner’s condition as “manageable”. Id. at 6. Respondent further notes that,
subsequent to a report of moderate and aching pain one-month post-vaccination, the
record is devoid of any information related to the severity of Petitioner’s pain and that “the
majority of [P]etitioner’s 2021 MRI findings correspond to his unrepaired, pre-vaccination
left shoulder injury, which included an [sic] extensive Petitioner’s labral tears (SLAP and
AIFHL) and a small focal supraspinatus tear.” Id. at 6-7 (emphasis in the original).
16 T.E. v. Sec’y of Health & Hum. Servs., No. 19-0633V, 2021 WL 2935751 (Fed. Cl. Spec. Mstr. May 7,
2021) (awarding $70,000 for past pain and suffering); Hartman v. Sec’y of Health & Hum. Servs., No. 19-
1106V, 2022 WL 444456 (Fed. Cl. Spec. Mstr. Jan. 14, 2022) (awarding $75,000 for past pain and
suffering); Decoretz v. Sec’y of Health & Hum. Servs., No. 19-0391V, 2021 WL 2346468 (Fed. Cl. Spec.
Mstr. May 7, 2021) (awarding $75,000 for past pain and suffering); Bergstrom v. Sec’y of Health & Hum.
Servs., No. 19-0784V, 2021 WL 5754968 (Fed. Cl. Spec. Mstr. Nov. 2, 2021) (awarding $80,000 for past
pain and suffering); Russano v. Sec’y of Health & Hum. Servs., No. 18-0392V, 2020 WL 3639804 (Fed. Cl.
Spec. Mstr. June 4, 2020) (awarding $80,000 for past pain and suffering); Accetta v. Sec’y of Health &
Hum. Servs., No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec. Mstr. Mar. 31, 2021) (awarding $95,000 for
past pain and suffering).
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Respondent insists Petitioner has not provided sufficient evidence linking his later
treatment (which followed a twenty-month gap, and coincided with the filing of his motion
for a ruling on the record) to his earlier SIRVA injury, rather than the result of a pre-existing
labral tear. Id. at 9.
Respondent also questions the relevance of Petitioner’s comparable cases, noting
that they involved more extensive treatment, such as PT, that was not required in this
case. Opp. at 7-8. Respondent instead proposes Clendaniel and Edens,17 in which
petitioners received pain and suffering awards of $60,000.00 and $70,000.00,
respectively, as more accurate comparable cases. Id. at 8.
In his reply brief, Petitioner repeats the assertions made in his initial brief regarding
the timing of his treatment and duration of his injury. Reply at 2. He insists that his injury
was more severe than those experienced by the petitioners in the two comparable cases
cited by Respondent. The Clendaniel petitioner, for example, waited three months before
seeking treatment, with a course of only 14 months, while the Edens petitioner’s limited
number of appointments (seven) and relief obtained from steroid injections also make
that case distinguishable. Id. at 2-3. He argues that his proposed comparable cases are
more analogous to Petitioner’s circumstances. Id. at 4-5.
V. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact his
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing the analysis in this case, I review the record as a whole to include
the medical records, declarations, affidavits, and all other filed evidence, plus the parties’
briefs and other pleadings. I consider prior awards for pain and suffering in both SPU and
non-SPU SIRVA cases and rely upon my experience adjudicating these cases. However,
I base my determination on the circumstances of this case.
A thorough review of the medical records reveals that Mr. McKenna suffered a
moderate to mild SIRVA injury for approximately thirteen months. He experienced the
most significant pain and limited ROM during the first month post-vaccination, but
obtained good relief for approximately three months from the first ultrasound-guided
17 Clendaniel v. Sec’y of Health & Hum. Servs., No. 20-0213V, 2021 WL 4258775 (Fed. Cl. Spec. Mstr.
Aug. 18, 2021); Edens v. Sec’y of Health & Hum. Servs., No. 19-1110V, 2021 WL 2182720 (Fed. Cl. Spec.
Mstr. Apr. 26, 2021).
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steroid injection he received. Although his pain returned, and continued for approximately
nine months with no benefit obtained by a second injection,18 his symptoms did not
appear to be as severe. On several occasions, Petitioner was observed as having full
ROM. Exhibit 4 at 4; Exhibit 18 at 6-7. And he did not undergo surgery as part of his
treatment.
Although Petitioner maintains that he continued to experience symptoms beyond
late January 2021, when he received his third steroid injection,19 the record does not
support his assertion. The gap in treatment especially undermines his contention. He
sought no additional treatment until October 2022, almost 21 months after his last
treatment, and after the filing of the Petition in this case. Although the worldwide COVID
Pandemic offers some explanation for the minimal amount of treatment pursued by
Petitioner in 2020, it would not explain a lack of treatment during the remainder of 2021
and 2022, especially if the injury was as severe and persistent as alleged.
Given the significant relief Petitioner obtained from the first steroid injection he
received, it is logical to believe he obtained good relief from the third steroid injection,
which was also administered with the assistance of ultrasound imaging. Furthermore, any
symptoms experienced following the 21-month gap in treatment thereafter could be
attributed to the still existing and considerable left shoulder damage sustained during
Petitioner’s 2017 fall.
It is important to note as well that Petitioner’s filings contain substantial
mischaracterizations and errors which undercut the arguments he presents. For example,
in his supplemental declaration he indicated that his 2017 fall resulted in only “a slight
labrum tear,” and maintained that his “doctor advised against surgery because the injury
was so minor.” Exhibit 15 at 4 (emphasis added). But the MRI performed in early May
2017 revealed significant damage, including “a 5 mm full-thickness partial width tear of
the anterior leading edge fibers of the supraspinatus tendon, . . . [a] [l]ongitudinal split tear
of the intra-articular portion of the biceps tendon just proximal to the biceps labral anchor,
. . . [and] labral tearing with SLAP tear from 12:00 to 5:00 positions posteriorly and at the
anterior/inferior labrum from the 6:00 to 9:00 positions with posterior labral detachment at
the labral chondral junction.” Exhibit 7 at 6. And there is no evidence indicating the
orthopedist recommended against surgery at this time – certainly not for that reason
Petitioner cited. Rather, the medical records indicate it was Mr. McKenna who rejected a
surgical option. Id.; see, e.g., Exhibit 7 at 6.
18 Unlike the first steroid injection he received which offered temporary relief, this second steroid injection
was not administered with the help of ultrasound imaging. Exhibit 4 at 5.
19 Like the first steroid injection he received, this injection was administered with the help of ultrasound
imaging. Exhibit 18 at 7-8.
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Petitioner makes similar mischaracterizations and errors in his briefing. As
evidence that he was experiencing significant symptoms in late January 2021, more than
a year post-vaccination, Petitioner mistakenly cited his orthopedist’s observations of
markedly limited range of motion seen during the first ultrasound-guided injection he
received in January 2020, approximately one-month post-vaccination. Brief at 6 (quoting
Exhibit 13 at 3). If accurate, this information would challenge the accounts of only slightly
limited or full ROM provided after the May 2021 return of Petitioner’s pain. Given that it is
clearly erroneous, this further undercuts Petitioner’s claims.
Additionally, I find Petitioner’s discussion of comparable cases to be flawed. When
arguing for a greater amount than the pain and suffering award in Edens, he slightly
overstated the Edens award, indicating it was $75,000.00, rather than the correct amount
of $70,000.00. Reply at 3-4; see Edens, 2021 WL 2182720, at *1, 7. And when asserting
he sought treatment sooner (seven days post-vaccination), he ignores the shorter time
frame in Edens – six days post-vaccination. Reply at 4; Edens, 2021 WL 2182720, at *6.
Petitioner’s claim that he should receive a greater award than the Bergstrom
petitioner is especially unconvincing. Although he correctly observes that the Bergstrom
petitioner “waited over three months to report her injury” (Brief at 23; accord. Reply at 4),
he does not also take note of the more severe pain and limitations in ROM the Bergstrom
petitioner experienced. See Bergstrom, 2021 WL 5754968, at *5-6. And when
emphasizing the breaks in treatment in the Bergstrom case (Brief at 23; Reply at 5), he
overlooked similar months-long periods between his own appointments (see supra
Section III), as well as the 21 PT sessions attended by the Bergstrom petitioner (see
Bergstrom, 2021 WL 5754968, at *5-6).
By contrast, the cases proposed by Respondent, Edens and Clendaniel, offer
better comparisons to the nature and character of SIRVA injury Petitioner suffered. Both
involved petitioners who required multiple steroid injections before obtaining complete
relief. Edens, 2021 WL 2182720, at *6-7; Clendaniel, 2021 WL 4258775, at *8. The Edens
petitioner actually received four cortisone injections over a 20-month period. Edens, 2021
WL 2182720, at *6-7. But despite the temporary relief provided by the injections, the
Edens petitioner’s injury still spanned more than two years. Id. at *6. And unlike Petitioner,
she was prescribed medication. Id.
Although the Clendaniel petitioner often suffered more severe pains levels, he (like
Petitioner herein) obtained some relief from the steroid injections he received. Clendaniel,
2021 WL 4258775, at *8. And he delayed seeking treatment until 26 days post-
vaccination – a period more than three times longer than in this case. Id.
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Thus, I find $65,000.00 (as Respondent proposed) – a figure falling between the
pain and suffering awards in Clendaniel and Edens - to be appropriate.
Conclusion
For all of the reasons discussed above, and based on consideration of the record
as a whole, I award Petitioner a lump sum payment of $65,000.00, representing
compensation for actual pain and suffering,20 in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be available
under Section 15(a) of the Vaccine Act. Id.
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.21
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
20 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
21 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12