VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00072
Package ID: USCOURTS-cofc-1_21-vv-00072
Petitioner: Jane Hutton
Filed: 2021-01-05
Decided: 2024-03-18
Vaccine: influenza
Vaccination date: 2019-09-17
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 37500

AI-assisted case summary:
Jane Hutton filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine administered on September 17, 2019. The respondent initially contested compensation, arguing that the petitioner could not meet the severity requirement, establish onset within 48 hours, or demonstrate reduced range of motion. The petitioner sought a ruling on the record, which included briefing on damages. Medical records indicated that Hutton received the flu vaccine in her left shoulder on September 17, 2019. She first complained of left shoulder pain to an orthopedist two months later, attributing it to the flu shot. Subsequent medical records noted tendinosis, impingement, and mild bursitis, with a history of limited range of motion. The Chief Special Master found that Hutton is entitled to compensation, awarding her $37,500.00 for pain and suffering. The decision determined that Hutton met the criteria for a Table SIRVA, including no prior shoulder condition, onset within 48 hours of vaccination, pain limited to the left shoulder, and no other explanatory condition. The severity and duration of the injury were considered mild to moderate, leading to the awarded amount, which was less than initially requested by the petitioner but aligned with respondent's valuation and other reasoned SIRVA awards.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00072-0
Date issued/filed: 2024-03-18
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/15/2024) regarding 35 DECISION of Special Master, Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:21-vv-00072-UNJ Document 40 Filed 03/18/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-72V
UNPUBLISHED
JANE MCGRAW, Chief Special Master Corcoran
Petitioner, Filed: February 15, 2024
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Influenza (“Flu”); Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA);
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On January 5, 2021, Jane Hutton 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
September 17, 2019. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters. For the reasons set forth below, I find that Petitioner is
entitled to compensation, and award her $37,500.00 in damages for actual pain and
suffering.
1 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-00072-UNJ Document 40 Filed 03/18/24 Page 2 of 11
I. Relevant Procedural History
Following the filing of the Petition, Respondent filed a Rule 4(c) Report on June
21, 2021, contesting compensation. Respondent’s Rule 4(c) Report (“Report”), ECF No.
26. Respondent maintained that Petitioner could not meet the severity requirement of the
Vaccine Act, nor could she establish onset of her injury occurred within forty-eight hours
of vaccination, or that she ever experienced reduced range of motion. Report at 6-10.
Petitioner filed a motion for a ruling on the record on December 2, 2022, which
also included briefing on appropriate damages. Motion for a Ruling on the Record (“Mot.”),
ECF No. 31. Respondent filed a response on January 4, 2023, reiterating the arguments
set forth in the Rule 4(c) Report and setting forth his damages arguments. Respondent’s
Response to Petitioner’s Motion for a Ruling on the Record (“Opp.”), ECF No. 32.
Petitioner filed a reply on January 11, 2023. Petitioner’s Reply to Respondent’s Response
to Petitioner’s Motion for a Ruling on the Record (“Reply”), ECF No. 33. The matter is ripe
for resolution.
II. Petitioner’s Medical Records
Petitioner received a flu vaccine in her left shoulder on September 17, 2019. Ex. 1
at 8. Thereafter, she had a mammogram on September 18th, and a gynecological exam
on September 30th, with no record of shoulder pain. Ex. 3 at 26, 7-11.
Two months after vaccination, on November 14, 2019, Petitioner first complained
of left shoulder pain to orthopedist doctor Travis Van Dyke. 22, 2018. Ex. 4 at 9-10. Dr.
Van Dyke noted that Petitioner’s shoulder pain had been present for two months “ever
since she got the flu shot in her left shoulder….” Id. at 9. An examination showed a good
range of motion, strength, with mild tenderness and positive impingement tests. Id.
However, x-rays were unremarkable. Id. at 10. Petitioner was diagnosed with left shoulder
pain and post-injection syndrome. Id.
Petitioner underwent an MRI on December 4, 2019, that showed tendinosis,
impingement, and likely mild subdeltoid bursitis. Ex. 8 at 18-19. The history section of the
record states “LEFT shoulder pain, limited range of motion, flu shot September 2019”. Id.
Later that month, on December 12, 2019, Petitioner returned to Dr. Van Dyke. Ex. 4 at 7-
8. Her examination, diagnosis, and impression were unchanged from the previous visit.
Id. at 7.
Petitioner began treating at Orlando Sports Chiropractic with Acupuncturist
Charlene Wall for left shoulder pain on January 8, 2020. Ex. 5 at 6. She reported that she
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had received a “flu shot” and “has since had pain in her L[eft] shoulder.” Id. The notes
also stated that she will recover in “6-12 months.” Id. An examination showed “positive
muscle inhibition” in her left shoulder, adhesion in some muscles, and pain on abduction.
Id. Her pain was rated as seven out of ten, and described as constant since its onset. Id.
She continued to treat throughout the winter of 2020, reporting some relief in February
(rating her pain as five out of ten on February 5, 2020), and slow progress. Id. at 10-11.
Her treatments consisted of acupuncture and Traumeel injections. Id. at 14-15. By
February 25, 2020 (approximately five months post-vaccination), Petitioner reported that
she experienced “a lot of pain” when raising or bringing her left arm across her chest. Id.
at 13.
On October 1, 2020, Petitioner established care with internist Truc T. Tran, D.O.
Ex. 10 at 21-23. Petitioner did not note any shoulder problems (chronic or otherwise) at
that time, and reported that her exercise consisted of weight training, cardio, and yoga
five to six days a week. Id. at 10. Petitioner now received her annual flu vaccine (in her
right arm). Id. at 11.
Petitioner has submitted an affidavit in support of her claim. Ex. 11. She states
therein that she had immediate pain following her vaccination, but delayed in seeking
treatment based on the recommendation of her husband, and orthopedic surgeon. Id.
Further, she stated that “[w]ith 202 shut down and COVID, I did not go back to Orlando
Sports Chiropractic clinic or seek out other treatment”, however the pain continued. Id.
Additionally, Petitioner asserts that she mentioned to Dr. Tran that she was nervous to
received a flu vaccine due to what happened in 2019. She ultimately received another
vaccination, however in her right arm. Id.
Dr. Brian McGraw, Petitioner’s husband, also submitted an affidavit. Ex. 12. Dr.
McGraw stated that Petitioner sought treatment until the Covid-19 Pandemic forced her
to stop. Id.
III. Fact Findings and Ruling on Entitlement
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
3 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
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Case 1:21-vv-00072-UNJ Document 40 Filed 03/18/24 Page 4 of 11
petitioner must establish that she suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
she received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(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-
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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 &
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. 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 September 17, 2019,
and she therefore must demonstrate by preponderant evidence that her residual
symptoms continued at least through March 17, 2020 (assuming onset of pain the day of
vaccination). See, e.g., Herren v. Sec'y of Health & Hum. Servs., No. 13-100V, 2014 WL
3889070, at *2 (Fed. Cl. Spec. Mstr. July 18, 2014); see also Hinnefeld v. Sec'y of Health
& Hum. 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 injury resolved
less than two months after onset).
The record establishes that Petitioner’s initial treatment occurred over
approximately five months, ending February 25, 2020. This is roughly three weeks shy of
six months post-vaccination. On February 5th, however, she reported moderate to severe
pain (five out of ten) and slow progress in healing. Further, on February 25, 2020, she
continued to report “a lot of pain” in her shoulder. Ex. 5 at 13. Given her slow rate or
progress, and reports of significant pain as late as February of 2020, it is more likely than
not that her pain continued through at least March 17, 2020.
Respondent observes that Petitioner did not seek treatment for her shoulder after
February 25, and that when she did seek in-person treatment in the fall of 2020 with Dr.
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Tran, no mention of her shoulder injury was made. Opp. at 8. However, the affidavits of
her and her husband explain that COVID-19 Pandemic restrictions halted her treatment.
Ex. 11, 12. This is a reasonable explanation for why treatment visits may have ceased for
at least some of this time. Further, Petitioner contends that she reported shoulder issues
to Dr. Tran in the fall of 2020, but which were unreported in the medical record. Ex. 11.
Adding weight to her argument is the fact that she received a flu vaccination on October
1, 2020 in her right arm, instead of her left. Ex. 10 at 11.
Thus, the overall record constitutes a sufficient showing of severity (if just barely)
to meet the preponderance evidentiary standard. It is likely that Petitioner’s symptoms
persisted into March of 2020, despite the cessation of treatment and subsequent gap
However, the light history of treatment also suggests a mild injury - which will impact
damages in this case, as noted below.
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. Petitioner Had No Prior Left Shoulder Condition or Injury that
would Explain her Symptoms
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 does not dispute 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 preponderantly establish onset of injury close-in-time to
vaccination. Petitioner first reported left shoulder pain to Dr. Van Dyke on November 14,
2019. Ex. 4 at 9-10. While Petitioner delayed nearly two months in seeking treatment, she
consistently and continually linked her shoulder pain temporally to the date of vaccination.
See Ex. 4 at 9 (record from November 14, 2019 stating that her shoulder pain was present
for two months “ever since she got the flu shot”); Ex. 5 at 6 (record from January 8, 2020
stating she had a flu shot and “has since had pain in her L[eft] shoulder”).
Respondent argues that Petitioner’s statements are vague and fail to identify a
specific onset date for his shoulder symptoms. Opp. at 12. Even so, a finding of Table-
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consistent onset can be made based on such a record. Program petitioners are not
required to marshal records setting forth with chronographic specificity the precise day
and hour that their onset manifested. As noted above, Petitioner consistently linked her
shoulder pain to the September flu vaccine – whereas there are no records suggesting
an onset outside of 48-hours post-vaccination.
Further, while Petitioner did delay nearly two months before seeking treatment, the
relevant medical records show that she did not attribute her pain to any other injury or
cause. In fact, it is common for SIRVA petitioners to delay seeking treatment, thinking the
injury will resolve on its own, especially since patients are often told by medical providers
at the time of vaccination to expect some soreness and pain for a period of time after.
3. Range of Motion Limits Evidence
A Table SIRVA injury does require that a petitioner establish limited or reduced
range of motion. Bolick v. Sec'y of Health & Hum. Servs., No. 20-893V, 2023 WL
8187307, at *6 (Fed. Cl. Oct. 19, 2023). Respondent also argues that Petitioner did not
exhibit reduced range of motion, and thus cannot meet this requirement. Opp. at 13.
Respondent cites to records that do not affirmatively report reduced range of motion, and
more specifically to Dr. Van Dyke’s records that stated Petitioner had a “good” range of
motion. Ex. 4 at 9-10.
Here, although Dr. Van Dyke did not note range of motion limitations, other records
do. For example, Petitioner’s MRI affirmatively states a history of limited range of motion.
Ex. 8 at 18. Further, the chiropractic records note muscle inhibition and adhesion. Ex. 5
at 6. While Respondent has a valid point, when the record is viewed in its entirety, there
is preponderant evidence that establishes Petitioner experienced reduced range of
motion in her left shoulder.
Accordingly, there is preponderant evidence that establishes the onset of
Petitioner’s left shoulder pain more likely than not occurred within 48-hours of vaccination.
4. Petitioner’s Pain was Limited to her Left Shoulder
Petitioner’s pain was limited to her left shoulder. Respondent does not contest this
aspect of Petitioner’s claim, and there is nothing in the records to suggest otherwise.
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5. 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.
The record shows that Petitioner received a flu vaccine intramuscularly on
September 17, 2019, in the United States. Ex. 1 at 8; 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 collected a civil award
for her injury. Ex. 2; Section 11(c)(1)(E) (lack of prior civil award).
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.
IV. Damages
The parties also briefed damages in this matter. Petitioner is seeking $68,000.00
for pain and suffering. Mot. at 13-14, Reply at 4-5. Respondent argues that if entitlement
is found in favor of Petitioner, an award of $37,500.00 is an appropriate amount for pain
and suffering. Opp. at 19.
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).
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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.4
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed, leaving only the severity and
duration of 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, affidavits, 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.
Mrs. McGraw asserts that the severity of her injury is most similar to what the
petitioner experienced in Russo v. Sec’y of Health & Hum. Servs., No. 20-1491V (Fed.
Cl. Spec. Mstr. August 31, 2022) (awarding $63,000.00 for pain and suffering); Knauss v.
Sec’y of Health & Hum. Servs., No. 16-137V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr.
May 23, 2018) (awarding $60,000.00 for pain and suffering); and Dagen v. Sec’y of Health
& Hum. Servs., No. 18-0442V, 2018 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2018)
(awarding $65,000.00 for pain and suffering). In particular, she emphasizes that she
underwent an MRI, numerous chiropractic appointments, and five Traumeel injections
over five months. Mot. at 13. Further, she would have continued treating but for the
COVID 19 Pandemic. Id.
Respondent, by contrast, submits that the lesser award of $37,500.00 is
appropriate. Opp. at 15-18-14. Respondent argues that Petitioner’s injury was mild, short-
lived, and required very little treatment. Opp. at 16-17. Respondent cites to three
conceded cases wherein Petitioner was awarded between $25,000.00 and $40,000.00
for a SIRVA. Siefker v. Sec’y of Health & Hum. Servs., No. 19-951V, 2021 WL 2433299
4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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(Fed. Cl. Spec. Mstr. May 14, 2021) (pain and suffering proffer of $25,000.00); Hutchens
v. Sec’y of Health & Hum. Servs., No. 17-797V, 2022 WL 782313 (Fed. Cl. Spec. Mstr.
Feb. 28, 2022) (pain and suffering proffer of $32,500.00); Tell v. Sec’y of Health & Hum.
Servs., No. 19-1057V, 2021 WL 829515 (Fed. Cl. Spec. Mstr. Jan. 19, 2021) (pain and
suffering proffer of $40,000.00).
Based on the medical records, I conclude that Mrs. McGraw suffered a mild SIRVA
for approximately six months. She sought treatment two months after her vaccination,
and her pain was mostly reported as moderate (five to seven out of ten). However, her
course of treatment was very conservative, consisting of x-rays, an MRI, chiropractic
sessions, Traumeel injections, and orthopedic visits. Further, the diagnostic testing
revealed a mild injury: Petitioner’s MRI showed only tendinosis a likely mild bursitis.
The overall severity of the injury at issue herein is thus not high enough to justify
the $68,000.00 requested by Petitioner. I note that the SIRVA cases cited by Petitioner
otherwise involved more extensive treatment over longer periods. For example, in Russo,
petitioner underwent twelve physical therapy sessions, had two iontophoresis treatments
over eight months. 2022 WL 4717927 at *4. The petitioner in Knauss treated for over a
year, and had two MRIs, one cortisone injection, and fourteen physical therapy sessions.
2018 WL 3432906 at *7. However, I also agree with Petitioner that proffered cases, such
as those cited by Respondent, do not provide reasoned analyses supporting their awards,
rendering them of little use in determining the appropriate pain and suffering amount to
be awarded. Reply at 4-5.
Nevertheless, Respondent’s valuation of this case better fits the extent of
Petitioner’s pain and suffering, given what the medical records show. In fact, it is more in
line with other SIRVA awards from reasoned decisions, in cases that involved mild SIRVA
injuries with limited conservative treatment, no cortisone injections or surgery, few
physical therapy sessions, and treatment gaps or delays. See, e.g., Mejias v. Sec'y of
Health & Hum. Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov. 10,
2021) (awarding $45,000.00 for pain and suffering) and Ramos v. Sec'y of Health & Hum.
Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021) (awarding
$40,000.00 for pain and suffering).
In both Mejias and Ramos, the relevant petitioners treated for relatively short
periods of time, reported mild or moderate pain levels, had moderate range of motion
limitations, and little-to-no physical therapy. Mejias, 2021 WL 5895622 (treating for over
ten months with no physical therapy and pain levels ranging from three to six out of ten);
Ramos, 2021 WL 688576 (delayed seeking treatment for approximately four months,
treated for thirteen months, had eleven physical therapy sessions, and reported pain
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levels ranging from zero to ten out of ten). In fact, both cases involved longer treatment
and moderate limitations on range of motion, unlike Mrs. McGraw – suggesting even
these amounts are too high.
Overall, this SIRVA was barely severe enough to cross the six month “line,” and
did not involve surgery or other considerations that would render it a case in which a large
award is appropriate. Taking all of the above into account, I find that $37,500.00 for pain
and suffering is fair compensation.
Conclusion
In view of the evidence of record, I find that there is preponderant evidence
that Petitioner satisfies the QAI requirements for a Table SIRVA. Further, based on
the evidence of record, I find that Petitioner is entitled to compensation.
For all the reasons discussed above, and based on consideration of the
records as a whole, I award Petitioner $37,500.00 in damages for past pain and
suffering.
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.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 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