VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00091
Package ID: USCOURTS-cofc-1_21-vv-00091
Petitioner: Matthew Huber
Filed: 2021-01-05
Decided: 2023-11-27
Vaccine: influenza
Vaccination date: 2020-09-18
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 71248

AI-assisted case summary:
Matthew Huber filed a petition for compensation under the National Vaccine Injury Compensation Program on January 5, 2021, alleging that he suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 18, 2020. He alleged that the vaccine was administered in the United States, his symptoms continued for more than six months, and he had not received prior compensation for this injury. On February 21, 2023, the Respondent, Secretary of Health and Human Services, filed a report conceding entitlement to compensation. The Respondent agreed that Mr. Huber had no prior history of left shoulder pain or dysfunction, that his pain began within 48 hours of vaccination, was localized to the injection site, and that no other condition explained his symptoms. The Respondent also agreed that Mr. Huber timely filed his claim, received the vaccine in the United States, and met the statutory severity requirement. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on February 22, 2023, finding Petitioner entitled to compensation. Subsequently, the parties were unable to agree on the amount of damages, leading to a decision on damages issued on November 27, 2023. Mr. Huber, a 36-year-old adult, received the influenza vaccine in his dominant left arm on September 18, 2020. Approximately 18 days later, on October 6, 2020, he presented to his primary care physician with a chief complaint of acute left shoulder pain, describing it as progressively worsening since the day after vaccination, moderate in severity, and aggravated by movement. His primary care physician tentatively assessed tendinitis aggravated by the flu shot and prescribed oral steroids and home exercises. Two weeks later, Mr. Huber reported no relief from the steroids, and an X-ray was unremarkable. He then saw an orthopedist on October 30, 2020, reporting moderate to severe, fluctuating, and intermittent pain, difficulty sleeping, and relief with ice, over-the-counter medications, rest, and stretching. The orthopedist assessed an inflammatory reaction from the flu shot and impingement-like symptoms, recommending medication, home exercises, and follow-up. By November 25, 2020, his shoulder pain had improved but was still present, with no tenderness or pain on examination. He received a Tdap vaccine on this date in anticipation of his wife's first child, due in February. On December 10, 2020, he reported unchanged pain despite mild temporary relief from Meloxicam, and his range of motion was improved but still painful. He was unable to play tennis due to the injury to his dominant side. The orthopedist administered a subacromial steroid injection and recommended formal physical therapy (PT). Mr. Huber began PT on December 14, 2020, reporting pain of 3/10, ranging from 0-5/10, with functional limitations including pain with sleeping, inability to play tennis, and pain with reaching behind. His goals were to return to tennis and activities of daily living without pain. He underwent 29 PT sessions over approximately three months. By January 21, 2021, he reported his shoulder was "definitely getting better" but still had pain with certain movements. On January 22, 2021, he reported no relief from the steroid injection but mild relief from Meloxicam, and PT was improving function. He received another steroid injection on March 18, 2021, after which the orthopedist noted he was "dramatically better" and it was "a matter of time." He continued PT until March 29, 2021, after which he discontinued PT. He sought no further treatment. In February 2023, Mr. Huber stated his injury did not impact his job performance but disrupted his sleep, personal relationships, and recreational activities like tennis. He also noted the PT and steroid injections were painful. Chief Special Master Corcoran awarded Mr. Huber a total of $71,247.78, comprising $70,000.00 for actual pain and suffering and $1,247.78 for actual unreimbursable expenses. The decision noted that while the injury caused some disruptions, it did not involve confounding variables such as significant family caretaking obligations during the primary treatment course, and the overall SIRVA was considered mild.

Theory of causation field:
Petitioner Matthew Huber, age 36, received an influenza vaccine on September 18, 2020. He alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) with onset approximately 18 days post-vaccination. Respondent conceded entitlement, agreeing that Petitioner had no prior shoulder issues, pain occurred within 48 hours of vaccination, was localized to the injection site, and no other condition explained the symptoms. The case proceeded as a Table claim for SIRVA. Following entitlement, the parties could not agree on damages. Chief Special Master Brian H. Corcoran issued a decision awarding Petitioner $71,247.78, consisting of $70,000.00 for pain and suffering and $1,247.78 for unreimbursable expenses. The medical records indicated mild overall SIRVA, with conservative treatment including NSAIDs, two steroid injections, and approximately three months of physical therapy. The injury caused disruptions in sleep, personal relationships, and recreational activities, but did not impact his job performance. No specific medical experts were named in the provided text, and the mechanism of injury was presumed under the Table for SIRVA.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00091-0
Date issued/filed: 2023-03-24
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 0/2/22/2023) regarding 31 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00091-UNJ Document 35 Filed 03/24/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0091V
UNPUBLISHED
MATTHEW HUBER, Chief Special Master Corcoran
Petitioner, Filed: February 22, 2023
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)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 5, 2021, Matthew Huber filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). On May 17, 2021, Petitioner filed an amended petition. Petitioner alleges
that he suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a
result of an influenza (“flu”) vaccine received on September 18, 2020. Amended Petition
at 1. Petitioner further alleges that the vaccine was administered in the United States, his
symptoms have continued for more than six months, and he has never received
compensation in the form of an award or settlement, or filed a civil suit before filing the
petition in this case, for his vaccine-related injury. Amended Petition at ¶¶ 1, 32, 33. 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-00091-UNJ Document 35 Filed 03/24/23 Page 2 of 2
On February 21, 2023, 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, inflammation,
or dysfunction of his left shoulder that would explain his symptoms after vaccination; pain
occurred within forty-eight hours after receipt of an intramuscular vaccination; pain was
limited to the shoulder in which the vaccine was administered; and no other condition or
abnormality has been identified to explain petitioner’s pain.” Id. at 4-5. Respondent further
agrees that “the records show that petitioner timely filed his claim, that he received the flu
vaccine in the United States, and that he satisfies the statutory severity requirement by
suffering the residual effects or complications of his injury for more than six months after
vaccine administration.” Id. at 5.
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-00091-1
Date issued/filed: 2023-11-27
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 10/26/2023) regarding 39 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-00091-UNJ Document 46 Filed 11/27/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0091V
MATTHEW HUBER, Chief Special Master Corcoran
Petitioner,
v. Filed: October 26, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 5, 2021, Matthew Huber 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 left shoulder injury related to vaccine
administration (“SIRVA”) following his receipt of an influenza (“flu”) vaccine on September
18, 2020. While Respondent conceded entitlement, the parties were unable to resolve
the appropriate award of damages, so I ordered briefing on the subject.
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-00091-UNJ Document 46 Filed 11/27/23 Page 2 of 10
For the reasons described below, I find that Petitioner is entitled to an award of
$71,247.78 (representing $70,000.00 for actual pain and suffering, plus $1,247.78
for actual unreimbursable expenses).
I. Relevant Procedural History
Four months after initiating the claim, Petitioner filed an Amended Petition (ECF
No. 8) incorporating the required medical records and his first sworn statement, filed as
Exs. 1 – 9 (ECF No. 9). In October 2021, the case was activated and assigned to SPU.
ECF No. 15. In May 2022, Petitioner submitted a demand. ECF No. 22.
On February 22, 2023, Petitioner was found entitled to compensation for a Table
SIRVA, consistent with Respondent’s recommendation. ECF Nos. 30 – 31. But one week
earlier, Petitioner had filed a second sworn statement as Ex. 11 (ECF No. 28), and a
motion for a ruling on the record regarding damages (ECF No. 29) (hereinafter “Brief”).
Petitioner reported that he had rejected Respondent’s “non-negotiable proffer.” ECF No.
34. On April 27, 2023, Respondent filed a Response. ECF No. 36. On May 12, 2023,
Petitioner filed a Reply. ECF No. 37. The matter is ripe for adjudication.
II. Authority
Under the Vaccine Act, 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).
Compensation 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).
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)).
2

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 3 of 10
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
predecessor Chief Special Masters) adjudicating similar claims.3 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.
I have periodically provided (in other published decisions) statistical data on pain
and suffering for SIRVA claims resolved in SPU. See, e.g., McKenna v. Sec’y of Health
& Human Servs., No. 21-0030V, 2023 WL 5045121, at *2-3 (Fed. Cl. Spec. Mstr. July 7,
2023). As noted in McKenna, as of July 1, 2023, in 173 SPU SIRVA cases that required
reasoned damages determinations, compensation for past pain and suffering ranged from
$40,000.00 to $215,000.00. Id. at *3. Cases with higher pain and suffering awards
involved prompt medical attention; high subjective pain ratings; moderate to severe
limitations in range of motion; significant findings on MRI; surgery or significant
conservative treatment; and evidence of permanent injury. Id. at *3.
3 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.
3

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 4 of 10
III. Appropriate Compensation for Petitioner’s Pain and Suffering
A. Consideration of the Evidence
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 to his mental faculties or
capacity. I therefore analyze principally the severity and duration of Petitioner’s injury. In
performing this analysis, I have reviewed the record as a whole, including all medical
records, declarations, affidavits, and all other filed evidence, plus the parties’ briefs and
other pleadings. I also have taken into account 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 ultimate determination on the specific circumstances of this case.
The medical records establish that Mr. Huber was 36 years old and in good health
upon receiving the subject vaccine in his dominant left arm on September 18, 2020. Ex.
2 at 1.
Eighteen (18) days later, on October 6, 2020, Petitioner saw his primary care
physician (“PCP”) for a chief complaint of acute left shoulder pain. Ex. 5 at 9. He described
normal stiffness the day after receiving his vaccination, which had gotten progressively
worse, although no redness or swelling was noted. Id. The pain was currently “moderate,”
and “really hurt[ing] with movement of the left shoulder/ upper arm, specifically lifting
overhead. Id. He had been taking Tylenol and Advil, which didn’t really help. Id. The
positive exam findings were: “Pain with ext[ernal] rot[ation] and flexion but full ROM in
those directions; pain with abduction with decreased motion to approx. 160 2/2 pain,” as
well as positive Hawkins-Kennedy and Neers impingement tests. Id. at 10. The PCP’s
tentative assessment was tendinitis aggravated by the flu shot. Id. The PCP prescribed
oral steroids (a Medrol dose pack) and instructed Petitioner on home exercises. Id.
Petitioner declined formal physical therapy (“PT”) at that time. Id.
Two weeks later, Petitioner reported that the steroids had delivered no relief. Ex.
5 at 38. An x-ray revealed an “unremarkable” left shoulder. Id. The PCP recorded that
Petitioner had “declined [a referral to PT] … to [instead] see ortho and MRI.” Id. at 11 –
12.4, 5
At the October 30, 2020, orthopedics initial evaluation, Petitioner reported an
4 While the primary care records list two “encounters” on October 22, no updated history, review of systems,
or examination are recorded. Ex. 5 at 11 – 12.
5 Petitioner never underwent an MRI. Brief at 21.
4

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 5 of 10
“ach[iness”] after the September 18th vaccination which had not let up. Ex. 7 at 3. He
described the pain as “moderate to severe,” but also as “fluctuating” and “intermittent.” Id.
The pain was aggravated by bending, lifting, and pushing – and relieved with ice, over-
the-counter medications (specifically Advil), rest, and stretching. Id. Petitioner also
reported difficulty sleeping. Id. On exam, his left shoulder had normal strength and
reflexes, essentially normal range of motion,6 but positive Hawkins-Kennedy and Neers
impingement tests. Id. at 4. The orthopedist assessed an inflammatory reaction from the
flu shot and “impingement-like symptoms,” to be treated initially with Meloxicam for 7 –
10 days, home exercises, and a reevaluation in 6 – 8 weeks. Id. In formulating this
treatment plan, the orthopedist “discussed sometimes this can stiffen up over time.” Id.
(emphasis added).
On November 25, 2020, the PCP recorded that Petitioner’s shoulder pain was
improved but still present; he had been doing home exercises and taking non-steroidal
anti-inflammatory drugs (“NSAIDs”) as needed. Ex. 5 at 13. The PCP specifically noted
that an exam of the left shoulder revealed no tenderness, no pain, and intact range of
motion. Id. at 15. The PCP recommended continuing home exercises and following up
with the orthopedist. Id.
The November 25, 2020, PCP encounter was for an annual evaluation. The PCP
recorded that Petitioner had a good energy level, was sleeping 8 hours per night, and
was exercising 3 – 4 times per week. Ex. 5 at 13. The PCP also recorded that Petitioner’s
wife was “having first baby in Feb,” id. at 13, and accordingly, Petitioner received a
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine. Id. at 15.7, 8
At a December 10, 2020, orthopedics follow-up, Petitioner reported that Meloxicam
had delivered “mild temporary relief,” he was not taking additional pain medications, his
pain was unchanged; and his ROM was improved but still painful. Ex. 7 at 5. He also
reported left shoulder “soreness,” pain with overactivity, and pain at night. Id. at 6. He was
not able to play tennis, noting that the injury was to his left dominant side. Id. The exam
findings were unchanged. Id. The orthopedist administered a subacromial steroid
injection, and recommended formal PT followed by a reevaluation in 7 – 8 weeks. Id.
6 Except for a slight difference in active external rotation and flexion – documented as 160 degrees in the
left shoulder, compared to 165 degrees in the right. Ex. 7 at 4 (noted in Petitioner’s Brief at 6).
7 The Centers for Disease Control and Prevention (“CDC”) encourages vaccination against pertussis (also
known as whooping cough) for individuals who plan to be around babies, who are particularly vulnerable to
this disease. CDC, Pertussis (Whooping Cough), https://www.cdc.gov/pertussis/vaccines.html (last
accessed Oct. 24, 2023).
8 The Tdap vaccine’s administration site is not recorded. See generally Ex. 5 at 13 – 16.
5

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 6 of 10
At the December 14, 2020, PT initial evaluation, Petitioner reported that his left
shoulder “ache[d] in the morning when [he woke] up on that side.” Ex. 8 at 8.9 The steroid
course had helped for a while, Meloxicam made no difference, and the steroid injection
“may have helped.” Id. His pain was currently 3/10 and ranged from 0 – 5/10. Id. His
functional limitations were pain with sleeping, an inability to play tennis, and pain with
reaching behind. Id. His goals were to return to tennis and activities of daily living (“ADLs”)
without pain. Id. The PT initial examination found that the left shoulder had mildly
decreased and painful active ROM and gross muscle testing, and positive Hawkins-
Kennedy and Neers impingement tests. Id. at 9. The therapist’s assessment was left
rotator cuff impingement and tendinitis, for which she recommended formal PT sessions
twice a week for 8 weeks – which began that day – and adherence to a home exercise
program. Ex. 8 at 10; see also id. at 16 – 37.
By January 21, 2021 (at the 12th PT session), Petitioner reported that his left
shoulder was “definitely getting better, but still ha[d] pain with reaching out to the side and
behind with certain activities like washing my back.” Ex. 8 at 38. His pain was currently
2/10 and ranged from 0 – 4/10. Id.
At an orthopedics follow-up the next day, Petitioner reported “no relief” from the
steroid injection, “mild relief” from the Meloxicam – which prescription had run out. Ex. 9
at 4. He was not taking any other pain medications. Id. PT was improving his shoulder
function, specifically ROM, but he continued to have pain with certain movements. Id. The
orthopedist’s exam findings were unchanged, but he recorded that Petitioner was “slightly
better” and did “not appear to be freezing up.” Id. at 4 – 5. The orthopedist ordered
additional PT, Naproxen “at night periodically,” and reevaluation in two months. Id.
Petitioner continued to report pain relief from taking Naproxen at subsequent PT
sessions. See, e.g., Ex. 8 at 41. He progressed with decreased frequency and intensity
of symptoms, improved mobility, and increased weight on resistance exercises. At his
19th PT session on February 25, 2021, Petitioner reported: “My wife had our baby on
Monday. The shoulder feels okay after trying to hold the baby.” Id. at 56.
At a March 18, 2021, orthopedics follow-up, Petitioner confirmed that Naproxen
relieved his pain and that his ROM was better, but he continued to work on external
rotation in PT. Ex. 9 at 6. The orthopedist’s exam findings were unchanged, but he noted
“some stiffness in abduction external rotation,” for which he administered an intra-articular
steroid injection and recommended further PT. Id. at 7. The orthopedist assessed that
9 Petitioner attended a total of 27 PT sessions – beginning on December 14, 17, 21, 22, 28, and 30, 2020.
In the following year, further sessions occurred on January 4, 7, 11, 14, 18, 21, 25, 28; February 4, 8, 11,
15, and 25; and March 1, 4, 8, 15, 18, 23, 25, and 29, 2021. See generally Ex. 8.
6

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 7 of 10
“Overall, [Petitioner] is doing dramatically better, it is a matter of time.” Ex. 9 at 7; see also
Ex. 8 at 68 (orthopedist’s order for additional PT 2 times per week for 6 weeks); Ex.
By a PT session a few days later, Petitioner still had pain at night, with reaching
overhead, out to the side, and behind his back. Ex. 8 at 69. The pain was currently 1/10
and ranged from 0 – 3/10. Id. After attending two more sessions on March 25 and 29,
2021 (representing 27 sessions total), see id. at 74 – 78, Petitioner discontinued PT. No
formal discharge summary appears in the record.
Petitioner sought no further treatment after the end of March 2021 – although he
has alleged ongoing pain and adherence to a home exercise program. See Status Report
filed Jan. 3, 2022, ECF No. 19. In February 2023, Petitioner represented10 that his left
shoulder injury did not impact his ability to perform his job,11 but he had been compelled
to adjust his schedule while attending formal PT, which took a few hours each week. Ex.
11 at ¶ 4. In addition, his formal PT and the two steroid injections intended to treat his
shoulder were themselves significantly painful. Id. at ¶¶ 4 -5. The shoulder injury also
disrupted his sleep, personal relationships, and recreational activities specifically tennis.
Id. at ¶¶ 4 – 8.
B. Analysis
The above-summarized medical records establish that Petitioner’s SIRVA was
mild overall. While he sought prompt medical attention, his early pain was moderate to
mild, and intermittent. His initial ROM and strength deficits were mild. He was assessed
with an inflammatory reaction to the flu shot, tendinitis, and impingement. He did not
develop adhesive capsulitis. No imaging or surgical intervention occurred. His formal
treatment course was conservative – centering on primary care and orthopedics consults,
prescription and OTC NSAIDs, two steroid injections, and 29 PT sessions over
approximately three months. PT helped his pain levels and function, and he self-
discharged from PT just over six months post-vaccination – meaning his treatment course
lasted barely more than six month from onset.
10 Previously in May 2020, Petitioner addressed the treatment course for his left shoulder injury, but he did
not address any personal circumstances (apart from the PT initial evaluation note of his inability to play
tennis). See generally Ex. 1.
11 Petitioner was employed full-time as an environmental consultant, which involved sedentary desk work.
Ex. 8 at 8.
7

Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 8 of 10
Petitioner requests a pain and suffering award of $77,500.00 – slightly more than
what was awarded in Bordelon, Attig, and Kim.12 But Respondent maintains that in each
of those cases, the SIRVA was established to have disrupted family caretaking
obligations. Response at 7 – 10 (citing George v. Sec’y of Health & Hum. Servs., No. 18-
0426V, 2020 WL 4692451, at *3 (Fed. Cl. Spec. Mstr. July 10, 2020) (reasoning that the
pain and suffering award may be adjusted upwards in light of “confounding variables…
e.g., greater pain, increased length of symptoms, difficulty caring for very young children
and an elderly parent”)).
In reply, Petitioner suggests that in fact such a variable (disruption of family life)
exists, since his wife had given birth to their child “several months prior to his SIRVA.”
Reply at 4 (emphasis added), citing Ex. 11 at ¶ 6 (Petitioner’s recollections of caring for
his child before versus after the SIRVA). However, the medical records establish a
different, more logical chronology. To reiterate, Petitioner’s SIRVA onset was in
September 2020. In November 2020, he received a pertussis vaccine in anticipation of
his child’s birth. His injury improved over the subsequent months, and on February 25,
2021, he denied difficulty holding his newborn child. Accord Ex. 11 at ¶ 6 (listing a 2021
date of birth).13Within the next month, the orthopedist assessed that his shoulder was
“dramatically” improved, and he self-discharged from PT. Thus, Petitioner’s asserted
“confounding variable” was not present at the injury outset or during the majority of the
active treatment course – unlike in Bordelon, Attig, and Kim.14 Those cases are also
difficult comparisons in light of the noted gaps in treatment – which meant shorter active
treatment courses, but also longer total documented injury courses.
12 Citing Bordelon v. Sec’y of Health & Hum. Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr.
Apr. 24, 2019); Attig v. Sec’y of Health & Hum. Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec.
Mstr. Feb. 19, 2019); Kim v. Sec’y of Health & Hum. Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl.
Spec. Mstr. July 20, 2018).
13 The Reply Brief states that Petitioner’s statement at Ex. 11 contains a “typographical error” in listing his
child’s birth in 2021. But the medical records are detailed and specific in establishing the child’s birth in that
year. It appears more likely than not that Petitioner was instead incorrect in recalling caring for his child
prior to the SIRVA onset.
14 Petitioner – like many other individuals who have sustained SIRVAs – has established that his injury
caused some disruptions in ADLs (including sleep, self-care, personal relationships, and recreational
activities). He had to adjust his work schedule to accommodate medical appointments, particularly PT
approximately twice a week for 3.5 months – but the injury did not impact his ability to perform his desk job.
I find that these circumstances are not particularly “confounding” either.
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Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 9 of 10
Respondent supports a lower award - $67,500.00 - on the grounds that this case
is comparable to Sakovits, George, Dagen, and Johnson. Response at 9.15 Not all of
these comparables are in fact helpful for Respondent. For example, Petitioner
persuasively distinguishes his own prompt presentation for medical treatment (just 18
days post-vaccination) from the Sakovitz petitioner’s initial 3.5-month delay in seeking
medical treatment, which suggested that the pain for the claimant in that latter case was
initially manageable (not “notably severe”). Sakovitz, 2020 WL 3729420, at *3. And unlike
Petitioner, the Sakovitz petitioner declined a second steroid injection. Id.
Nevertheless, Respondent’s other cited cases are indeed similar, in that each
featured early medical attention, prescription pain medications, and physical therapy;
acceptance of one steroid injection several months into the course; and pain and suffering
documented for approximately six months. Only the fact of Petitioner’s receipt of a second
steroid injection warrants a slight upward adjustment in the award from Respondent’s
comparable cases. Reply at 3 (citing Ex. 11 – Petitioner’s Second Sworn Statement at ¶
5 (stating that each injection was “extremely painful” for several days). Overall, I find that
Petitioner’s actual pain and suffering warrants an award of $70,000.00.
Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $71,247.78, representing $70,000.00 for actual pain and
suffering,16 plus $1,247.78 for actual unreimbursable expenses.17 This amount
represents compensation for all damages that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this Decision.18
15 Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420 (Fed. Cl. Spec. Mstr. June
4, 2020) (awarding $68,000.00 for actual pain and suffering); George v. Sec’y of Health & Hum. Servs., No.
18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July 10, 2020) ($67,000.00); Johnson v. Sec’y of Health
& Hum. Servs., No. 18-1486V, 2021 WL 836891 (Fed. Cl. Spec. Mstr. Jan. 25, 2021) ($65,000.00); Dagen
v. Sec’y of Health & Hum. Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2019)
($65,000.00).
16 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)).
17 Both parties have stipulated to the expenses. Brief at 28; Response at 2, 10.
18 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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Case 1:21-vv-00091-UNJ Document 46 Filed 11/27/23 Page 10 of 10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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