VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00071
Package ID: USCOURTS-cofc-1_21-vv-00071
Petitioner: Elsie McKay
Filed: 2021-01-05
Decided: 2024-01-12
Vaccine: Tdap
Vaccination date: 2018-04-26
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 128176

AI-assisted case summary:
Elsie McKay filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a right shoulder injury related to vaccine administration (SIRVA) resulting from a tetanus diphtheria and acellular pertussis (Tdap) vaccine received on April 26, 2018. The respondent conceded that Ms. McKay was entitled to compensation, agreeing that she had no prior history of shoulder pain, that pain occurred within 48 hours after vaccination, and that the pain and reduced range of motion were limited to the injection site. The case proceeded to a damages award. Ms. McKay's medical records indicate that she experienced right shoulder pain and limited range of motion starting within eleven days of her vaccination, which worsened over time. She underwent conservative treatment, including medication, rest, and a steroid injection, with minimal relief. Ultimately, she had surgery twenty months after her injury. Her recovery involved physical therapy, and while she showed improvement, she continued to experience residual symptoms. The court awarded Ms. McKay $127,500.00 for actual pain and suffering and $676.71 in actual unreimbursable expenses, for a total award of $128,176.71.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00071-0
Date issued/filed: 2022-09-12
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/12/2022) regarding 27 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (ke) Service on parties made.
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Case 1:21-vv-00071-UNJ Document 30 Filed 09/12/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0071V
UNPUBLISHED
ELSIE MCKAY, Chief Special Master Corcoran
Petitioner, Filed: August 12, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 5, 2021, Elsie McKay 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 right shoulder injury related to
vaccine administration (“SIRVA”) resulting from a tetanus diphtheria and acellular
pertussis (“Tdap”) vaccine received on April 26, 2018. Petition at 1. Petitioner further
alleges that the Tdap vaccine was received in the United States, her symptoms have
lasted for more than six months, and neither Petitioner nor any other party has filed an
action or received compensation in the form of an award or settlement for Petitioner’s
vaccine-related injury. Petition at ¶¶ 2, 21-23. 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-00071-UNJ Document 30 Filed 09/12/22 Page 2 of 2
On August 12, 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
1. Specifically, Respondent agrees that “petitioner had no history of pain or dysfunction
in her right shoulder prior to the Tdap vaccine; pain occurred within 48 hours after receipt
of an intramuscular vaccination; the pain and reduced range of motion were limited to the
shoulder in which the vaccine was administered; and no other condition or abnormality
would explain petitioner’s symptoms.” Id. at 10. Respondent further agrees that “given the
medical records outlined [in the Rule 4(c) Report], the statutory six month sequelae
requirement has been satisfied . . . . [and] petitioner has satisfied all legal prerequisites
for compensation under the Act.” Id.
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-00071-1
Date issued/filed: 2024-01-12
Pages: 14
Docket text: PUBLIC DECISION (Originally filed: 12/11/2023) regarding 38 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:21-vv-00071-UNJ Document 42 Filed 01/12/24 Page 1 of 14
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0071V
ELSIE MCKAY, Chief Special Master Corcoran
Petitioner, Filed: December 11, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 5, 2021, Elsie McKay 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 that she suffered a right shoulder injury related to
vaccine administration (“SIRVA”) resulting from a tetanus diphtheria acellular pertussis
(“Tdap”) vaccine received on April 26, 2018. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters (the “SPU”), and although
entitlement was conceded, the parties could not agree to a damages sum.
For the reasons set forth below, I find that Petitioner is entitled to a damages award
in the amount of $127,500.00 for actual pain and suffering, plus $676.71 in actual
unreimbursable expenses.
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).

Case 1:21-vv-00071-UNJ Document 42 Filed 01/12/24 Page 2 of 14
I. Relevant Procedural History
Respondent conceded that Petitioner is entitled to damages (ECF No. 27), and the
parties began damages negotiations. However, they reached an impasse (ECF No. 33).
Accordingly, Petitioner filed a damages brief on March 2, 2023 (ECF No. 35). Respondent
responded on April 24, 2023 (ECF No. 37). The matter of damages is now ripe for
resolution.
II. Relevant Medical History
Petitioner received a Tdap vaccine in her right deltoid on April 26, 2018, during an
appointment with her primary care provider (“PCP”) Dr. Rose Miller. Ex. 1 at 118-123.
Eleven days later (May 7, 2018), she called her PCP noting that since the April 26th
vaccination, she could now “hardly lift her arm.” Id. at 141. She was offered, but declined,
a same day appointment. Id. Less than a month later (May 29, 2018), she again called
her PCP, reporting that her right arm was now losing range of motion (“ROM”), and that
she was having difficulty sleeping due to pain. Id. at 148. Ibuprofen did not help. Id. An
appointment with Dr. Miller was scheduled for June 21st. Id. Petitioner was advised to go
to urgent care or call back if she wished to be seen sooner by another provider. Id.
Ten days after her second call to her PCP, and 43 days after vaccination (on June
8, 2018), Petitioner went to Samaritan Urgent Care complaining of right shoulder pain for
the past six weeks. Exs. 2 at 69; 5 at 1107. She reported that she had received a Tdap
vaccine in the upper deltoid and was having moderate aching pain that was worsening,
along with limited ROM and stiffness. Ex. 2 at 69. She had tried non-steroidal anti-
inflammatory drugs (“NSAIDs”), acetaminophen, movement, and rest, with no relief. Id.
She was advised to continue taking NSAIDs, use heat and ROM exercises, and follow up
with her PCP if she did not improve over the next two weeks. Id. at 70.
Two weeks later (June 21, 2018), Petitioner saw Dr. Miller for “severe right
shoulder pain” that started shortly after her tetanus booster on April 26th. Ex. 1 at 155-
56. She had been taking ibuprofen regularly, with minimal relief, and was having difficulty
sleeping due to pain. Id. at 156. On examination, her right shoulder was tender over the
bursa and along the biceps tendon, with some mild tenderness through the trapezius. Id.
at 157. She had limited active ROM due to pain, with 120 degrees in abduction and flexion
and 60 degrees in extension.3 Id. She was assessed with acute pain and bursitis of the
right shoulder, as well as lumbar radiculopathy. Id. Petitioner was directed to start
3 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in
abduction, and 50 to 60 degrees in extension. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF
JOINT MOTION: A GUIDE TO GONIOMETRY 72, 76, 80 (F. A. Davis Co., 5th ed. 2016).
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Case 1:21-vv-00071-UNJ Document 42 Filed 01/12/24 Page 3 of 14
Meloxicam and continue ROM exercises, ice, and heat, and referred to an orthopedist.
Id.
Two weeks later (July 5, 2018), Petitioner saw orthopedic physician assistant
(“PA”) Stephen Bennett for her right shoulder pain related to a tetanus injection on April
26, 2018. Ex. 3 at 9. She stated that her arm became painful immediately after the
injection, and she complained of severe pain, limited ROM, dysfunction, and inability to
sleep. Id. On examination, her right shoulder ROM was 90 degrees in abduction
(compared to 180 degrees on the left), 120 degrees in forward flexion (compared to 180
degrees on the left), 45 degrees in extension, 70 degrees in external rotation, and 45
degrees in internal rotation. Id. at 10. She was assessed with a right shoulder rotator cuff
injury, and PA Stephens recommended an MRI. Id.
Petitioner had a right shoulder MRI on July 16, 2018. Ex. 1 at 191. The MRI showed
evidence of a full-thickness tear of the supraspinatus, fluid within the
subacromial/subdeltoid bursa possibly reflecting findings of bursitis, suggested
intraarticular rupture of the biceps tendon with proximal retraction, and hypertrophic
changes of the acromioclavicular joint with inferior osteophytosis. Id.
A week later (July 23, 2018), Petitioner returned to PA Stephens to review the MRI
results. Ex. 3 at 5. PA Stephens determined that Petitioner had a right shoulder rotator
cuff tear, long head biceps tear, and hypertrophic changes. Id. He discussed both
operative and non-operative treatment options. Id. Petitioner considered, but was
apprehensive about, surgery. Id. PT and a local injection were also discussed. Id.
Two months later (October 1, 2018), Petitioner returned to her PCP to follow up on
her right shoulder pain and other concerns. Ex. 1 at 212. Dr. Miller advised that surgery
was her best option given the severity of the tear, though Petitioner remained nervous
about surgery. Id. at 213-14. A week later, Petitioner called her PCP, reporting that the
tramadol prescribed for her back pain was not helping, and that she was having shoulder
pain as well. Id. at 235.
Petitioner was seen by her PCP on December 6, 2018, to follow up on a number
of unrelated health concerns. Ex. 1 at 278-80. The record does not mention any shoulder
concerns. Id.
Two and a half months later (February 26, 2019), Petitioner called her PCP
requesting a referral to Dr. Richard Stanley for her right shoulder pain. Ex. 1 at 383.
Petitioner saw Dr. Miller the next day, reporting that her right shoulder continued to disturb
her sleep and affect her ability to function, but she was afraid of surgery because it would
prevent her from using her upper extremity even more for several weeks. Id. at 398.
On March 18, 2019, Petitioner saw orthopedist Dr. Richard Stanley for progressive
right shoulder pain. Ex. 8 at 25. On examination, both shoulders had similar active and
passive ROM. Id. at 27. Hawkins impingement testing was “markedly positive” on the right
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Case 1:21-vv-00071-UNJ Document 42 Filed 01/12/24 Page 4 of 14
side, with tenderness to palpation over the right shoulder joint. Id. Dr. Stanley assessed
Petitioner with a full thickness rotator cuff tear. Id. at 27-28. Petitioner remained
apprehensive about surgery and opted for conservative treatment including a steroid
injection, which was administered that day. Id.
Petitioner followed up with Dr. Stanley two months later (May 13, 2019). Ex. 8 at
22. She reported “marked improvement” in her right shoulder pain following the steroid
injection, but that she had experienced a “mild recurrence” of her symptoms starting about
a week earlier. Id. at 24. Her physical examination findings were unchanged. Id. Based
on her favorable response to the steroid injection, Petitioner elected to continue
conservative treatment and begin a rotator cuff strengthening program. Id.
Petitioner returned to Dr. Stanley on July 8, 2019, reporting persistent shoulder
symptoms and mild activity-related right shoulder pain with occasional crepitus with
motion. Ex. 8 at 19-21. Her physical examination remained unchanged. Id. at 21.
Petitioner elected to continue conservative treatment. Id. Dr. Stanley recommended a
repeat MRI. Id.
Petitioner’s second MRI (July 25, 2019) again showed a full-thickness tear of the
supraspinatus that “appear[ed] to be stable to slightly increase[d] in size when compared
to prior exam,” stable intra-articular rupture of the biceps tendon, and degenerative
changes. Ex. 5 at 1419.
Petitioner followed up with Dr. Miller on September 9, 2019. Ex. 5 at 1434. Her
right shoulder continued to be painful and disturb her sleep, and she had increased
weakness in her right upper extremity as well. Id. On examination, she had posterior
tenderness of the shoulder as well as a soft tissue mass at the right elbow. Id. at 1439.
Dr. Miller had some concern that she had experienced “further disruption of her rotator
cuff.” Id. Three days later (September 12, 2019), Petitioner saw orthopedic PA John
Navarro, reporting increased swelling/fullness in her right elbow and increasing pain along
the anterior shoulder consistent with biceps pathology. Ex. 8 at 15-18. She was more
open to surgery than she had been in the past, but remained apprehensive and chose to
continue conservative treatment. Id. at 18.
Petitioner returned to Dr. Stanley on October 28, 2019, at which time she elected
to pursue surgery for her progressive right shoulder symptoms to prevent additional
tearing and functional loss. Ex. 8 at 15. She had a pre-operative evaluation on December
17, 2019. Id. at 9.
On January 16, 2020, Petitioner underwent right shoulder arthroscopic rotator cuff
repair of the supraspinatus and infraspinatus, arthroscopic Mumford procedure, and
subacromial decompression with partial acromioplasty. Exs. 4 at 22-25; 5 at 1540-42.
She saw Dr. Stanley for a post-operative follow up on February 3, 2020, reporting
continued improvement in her pain and swelling since surgery. Ex. 4 at 15-18. The
arthroscopy portals were clean, dry, and intact, with no erythema or drainage and minimal
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edema. Id. at 18. She was directed to continue daily exercises and follow up in four weeks.
Id. On March 2, 2020, PA Navarro found her right shoulder passive ROM to be 110
degrees of forward elevation, 90 degrees of abduction, and 40 degrees of external
rotation. Id. at 14. Petitioner was advised to do home exercises three times daily. Id.
The following month (April 13, 2020), Petitioner followed up with Dr. Stanley, noting
recent improvement in overhead ROM and minimal residual shoulder pain. Ex. 4 at 9-10.
On examination, her right shoulder passive ROM was 150 degrees in forward elevation,
110 degrees in abduction, and 30 degrees in external rotation. Id. at 10. Dr. Stanley
recommended strengthening exercises using Thera-Bands every other day and ROM
exercises three times daily. Id.
On May 14, 2020, Petitioner underwent a Medicare Annual Wellness visit. Ex. 5 at
1730. She reported that she continued to do ROM exercises at home following her right
shoulder rotator cuff repair surgery. Id. at 1731.
On June 22, 2020, Petitioner returned to Dr. Stanley. Ex. 4 at 3-7. She had
continued home exercises and resumed the majority of her activities of daily living, with
minimal residual shoulder symptoms. Id. at 6. On examination, her right shoulder passive
ROM was “nearly symmetric” to the left shoulder. Id. Petitioner was advised to continue
every other day strengthening, and progress weight bearing to facilitate activities of daily
living, but cautioned not to perform heavy lifting overhead or above chest level until six to
nine months after surgery. Id. She was to return in three months for a “likely final” recheck.
Id. Three days later, Dr. Stanley issued a physical therapy (“PT”) referral for “ROM,
strengthen,” and a home exercise program. Ex. 11 at 13.
The following month (July 16, 2020), Petitioner attended the PT evaluation for right
shoulder stiffness. Ex. 11 at 8. She was unable to reach above shoulder height, and
reported pain that was “very mild” currently but ranged to five out of ten at worst. Id. at 8,
39. Her right shoulder ROM was 100 degrees in flexion (compared to 165 degrees on the
left), 90 degrees in abduction (compared to 160 degrees on the left), and 60 degrees in
extension. Id. at 9. She also exhibited reduced right shoulder strength. Id. at 9-10.
Petitioner did not schedule follow up visits and was therefore discharged from PT on
August 31, 2020. Id. at 7.
On September 21, 2020, Petitioner underwent a second PT evaluation for
persistent right shoulder pain and stiffness. Ex. 11 at 47. She was not currently in any
pain, but reported pain reaching a level of four out of ten at worst. Id. Her right shoulder
active ROM was 95 degrees in flexion, 60 degrees in extension, 100 degrees in
abduction, 60 degrees in internal rotation, and 40 degrees in internal rotation. Id. at 48-
49. She was assessed as having “significant restrictions” in right shoulder flexibility, with
likely secondary impingement. Id. at 50.
Petitioner attended five more PT sessions through December 10, 2020, for an
overall total of seven PT sessions. Ex. 11 at 75-99. At her September 28th session, she
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requested that her treatment frequency be reduced to every other week. Id. at 75. On
October 12th, she reported that she could only reach to about shoulder height. Id. at 79.
Later that month (October 29, 2020), the physical therapist noted that her right shoulder
flexion was limited to 90 degrees and that it “appears to be a muscle deficiency as
AAROM [active assisted ROM] flexion [she could] easily achieve 150 degrees.” Id. at 87.
At Petitioner’s final PT session on December 10, 2020, she reported that her
shoulder was getting better. Ex. 11 at 99. She stated that she had been “working on it,”
but the therapist noted that “[w]ith further questioning, it is clear that she is not really
following her HEP [home exercise program] or handouts, though does appear to be
engaging in some of the exercises.” Id. Her right shoulder flexion continued to be limited
but improving slowly. Id. She had shown “moderate improvement” since intake. Id. The
therapist stated, “[d]ischarge is not yet clinically indicated, but this patient declined to
schedule any further treatment. During the course of treatment she also declined the
recommended frequency of treatment.” Id. For these reasons and the fact that she did
not start PT promptly after surgery, her long term goals were not met. Id. Petitioner was
“strongly encouraged” to continue her exercises at home. Id. The record does not indicate
that Petitioner sought additional care for her right shoulder after this time.
III. Affidavit Evidence and Personal Statement
Petitioner filed an affidavit (Ex. 7) and an undated, unsigned, and unsworn
personal statement (Ex. 13) in support of her claim. The affidavit addresses statutory
requirements and indicates that she suffered residual effects of her injuries for more than
six months, but does not provide further details about her injury. Ex. 7.
In her personal statement, Petitioner states that she told the nurses she did not
want a Tdap vaccine, but they said it had been ten years and insisted that she receive it.
Ex. 13 at 1. Petitioner recalled that when the vaccine was injected, she felt “excruciating
pain.” Id. She knew something was different than other shots she had received in the
past. Id. By the time she got to her car, she could not even lift her arm to shift the gears
of the car. Id. She recalls intense pain that interfered with her sleep “night after night.” Id.
When it didn’t improve, she called her PCP and was told to move her arm to help with the
pain. Id.
When she went to urgent care, she expected to get a cortisone injection for the
pain, but was told to see her doctor. Ex. 13 at 1. When she saw Dr. Miller a couple of
weeks later, Dr. Miller said she did not give cortisone shots. Id. She was referred to PA
Bennett, who declined to give her an injection for the pain, recommending surgery
instead. Id. She viewed surgery as a last resort and waited for months thinking it would
improve, but it did not. Id. Ultimately, Dr. Stanley gave her a cortisone shot, which helped
for several months but then wore off. Id. When a second MRI showed more tearing, Dr.
Stanley said she should have surgery, and she agreed. Id.
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Petitioner states that her shoulder surgery was “[v]ery very painful. So painful if I
had known how painful I probably wouldn’t have gotten it.” Ex. 13 at 1. Her recovery was
“long and painful. Very agonizing.” Id. She has not been able to sleep without pain for a
couple of years, and constant pain and lack of sleep have made her depressed and very
stressed. Id. Family members have had to stay with and help her through her recovery.
Id.
Her arm still makes clicking noises, and she now has a “popeye deformity” that
looks “awful,” with her bicep having dropped down in her elbow. Ex. 13 at 2. She is a
retired hairstylist, and would like to work part time but cannot do so. Id. She does her PT
exercises every day and hopes for improvement. Id. Her pain level stays at about two or
three unless she uses her arm a lot, at which point in increases to six to eight. Id. She
cannot lift her arm overhead like she used to, and her shoulder feels stiff. Id.
IV. The Parties’ Arguments
Petitioner proposes a pain and suffering award of $130,000.00. Petitioner’s Brief
in Support of Damages, filed March 2, 2023, at *1 (ECF No. 35) (“Br.”). Petitioner relies
on Blanco, Wilson, and Rafferty, in which the petitioners were awarded $135,000.00,
$130,000.00, and $127,500.00, respectively.4 Petitioner argues that she suffered a
moderately severe SIRVA that ultimately required surgical intervention. Br. at *9. Her pain
was relatively severe immediately, resulting in a call to her PCP less than two weeks after
vaccination. Id. She called her PCP again later that month, then went to urgent care. Id.
She continued to follow up with her PCP and orthopedist hoping that her shoulder would
improve with conservative care, but unfortunately, it did not. Id. at *9-10. She tried a
cortisone injection, which helped for several months. Id.
Petitioner later underwent surgery. Br. at *11. Initially, she had improved pain and
ROM after surgery, but her pain and reduced ROM returned. Id. Petitioner argues that
her injury, treatment, and the impact on her quality of life are comparable to Blanco,
Wilson, and Rafferty, all of which involve moderately severe injuries that required surgery.
Br. at *11.
Respondent counters that Petitioner experienced a mild to moderate SIRVA, albeit
one that required surgical intervention, and proposes an award of $87,500.00.
Respondent’s Brief on Damages, filed April 24, 2023, at *6,10 (ECF No. 6) (“Resp.”).
Respondent emphasizes gaps in Petitioner’s treatment and delay in pursuing surgery.
Resp. at *6, 9. Once Petitioner had surgery in January 2020, she had an excellent
4 Blanco v. Sec’y of Health & Human Servs., No. 18-1361V, 2020 WL 4523473 (Fed. Cl. Spec. Mstr. July
6, 2020); Wilson v. Sec’y of Health & Human Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec.
Mstr. Mar. 18, 2021); and Rafferty v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956
(Fed. Cl. Spec. Mstr. May 21, 2020).
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recovery by June 2020. Id. at *6. After reporting minimal pain at a PT evaluation, she did
not follow up and was discharged, which Respondent interprets as “indicating that any
residual pain was likely very mild in nature.” Id. at *6-7. Petitioner later attended six
additional PT sessions, but then declined to schedule further treatment. Id. at *7.
In support of his proposed award, Respondent cites Hunt and Shelton, in which
petitioners were awarded $95,000.00 and $97,500.00 in pain and suffering, respectively.5
Resp. at *7-8. Respondent argues that the facts of Hunt reflect more extensive care
spanning a 15 month period. Id. at *7. The Hunt petitioner pursued more extensive PT
and more cortisone injections, with continued pain after surgery. Id. Thus, Respondent
argues that Petitioner’s award should be less than that awarded in Hunt. Id. Respondent
acknowledges that the Shelton petitioner delayed seeking treatment until five months
after vaccination, but asserts that thereafter she sought more consistent care including
three steroid injections, significant PT before and after surgery, and fluctuating levels of
pain. Id. at *7-8.
Further, Respondent contends that the cases Petitioner cites are distinguishable,
all involving “far more extensive treatment.” Resp. at *8. For example, the Blanco
petitioner had immediate severe pain, and underwent significant treatment for over two
years. Id. And the petitioners in Wilson and Rafferty both attended more PT sessions. Id.
at *9. In contrast, Ms. McKay did not pursue aggressive treatment as soon after
vaccination, or attend as many PT sessions. Id. While Ms. McKay’s treatment course
spanned a longer time, there were gaps with no treatment, or “periods where her pain
was clearly mild,” suggesting a lower award is warranted. Id. Thus, Respondent argues
that Petitioner “should not be awarded more than other petitioners whose courses were
shorter because they sought care more regularly and received more extensive treatment.”
Id. Respondent concludes that Petitioner received less treatment than any of the cited
cases, warranting a lower award than any of them. Id. at *9-10.
V. 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
5 Hunt v. Sec’y of Health & Human Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June
16, 2022), and Shelton v. Sec’y of Health & Human Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl.
Spec. Mstr. May 21, 2021).
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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 & Human 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 & Human 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 & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
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 & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.6 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
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 & Human 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.
6 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.
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Although Graves is not controlling of the outcome in this case, it provides reasoned
guidance in calculating pain and suffering awards.
VI. Prior SIRVA Compensation Within SPU7
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).8
In only 173 of these cases, however, was the amount of damages also determined by a
special master in a reasoned decision.9 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.10
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
7 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.
8 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.
9 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.
10 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 & Human
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).
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Damages Proffered Stipulated Stipulated11
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 $1,500.00.12
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
11 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
12 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
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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.
VII. 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 her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
The record reflects that Petitioner suffered a moderate SIRVA that continued for
over 31 months, with fluctuating pain levels and ROM restrictions. Her pain ranged from
mild to severe, with the most intense pain lasting for the first three months of her injury
(when she reported that she could hardly lift her arm). At worst she had relatively severe
ROM restrictions. She attempted conservative care, including a steroid injection,
medication, and rest, without relief. Ultimately, she underwent surgery twenty months
after her injury. She subsequently improved, and by five months after surgery she had
minimal symptoms and her ROM was nearly symmetrical in both shoulders, although her
ROM again worsened later. She participated in seven PT sessions, showing moderate
improvement after, but continued to display limited ROM and was unable to meet her
treatment goals.
Respondent suggests that there are gaps in Petitioner’s treatment that should
reduce her award. But review of the record reveals that over the course of more than 31
months Petitioner consistently sought care without significant gaps. Throughout, she
reported pain, though of varying intensities, and as well as reduced ROM and sleep
disturbances. Thus, this is not a case where gaps in treatment counsel against a larger
pain and suffering award.
Because Petitioner’s personal statement is unsigned and unsworn, it is entitled to
little weight. See, e.g., Buck v. Sec’y of Health & Human Servs., No. 19-1301V, 2023 WL
6213423, at *7 n.6 (Fed. Cl. Spec. Mstr. Aug. 23, 2023) (declining to place substantial
weight on an unsigned and unsworn letter). However, it provides some support to
Petitioner’s claim to the extent that it is corroborated by other records. Id.
Petitioner’s injury was of a similar duration to Blanco and Wilson, though less
severe. Hunt and Shelton, by contrast, involved injuries of a much shorter duration, and
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the evident treatment gaps in Shelton were a factor in a lower award.13 Petitioner’s injury
is similar to Rafferty, with somewhat less severe pain and ROM limitations but a much
longer duration.14 Petitioner and the Rafferty petitioner both first sought treatment
approximately six weeks after vaccination, although Ms. McKay made two calls to her
PCP prior to going to urgent care. Both underwent surgery and PT, with the Rafferty
petitioner attending more PT. Petitioner had one steroid injection, while the Rafferty
petitioner did not. And both were left with residual symptoms after treatment. I find that
Rafferty is the best comparable, and the same award is warranted in this case.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $127,500.00.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 15 I also find that Petitioner
is entitled to $676.71 in actual unreimbursable expenses.16
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum payment of $128,176.71, in the form of a check payable
to Petitioner. This amount represents compensation for all damages that would be
available under Section 15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.17
13 In Hunt, the petitioner had “largely returned to her baseline condition” by 15 months after vaccination.
Hunt, 2022 WL 2826662, at *9. In Shelton, the petitioner’s five month delay in seeking care, followed by
another three month gap immediately thereafter, showing that she “could cope with injury for such a long
period of time counsel[ing] in favor of a lower pain and suffering award.” Shelton, 2021 WL 2550093, at *7.
14 The Rafferty petitioner treated for eleven months, while Ms. McKay treated for over 31 months.
15 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 & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994))..
16 The parties agree to this sum. Pet. at 1; Resp. at 10.
17 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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