VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00396
Package ID: USCOURTS-cofc-1_21-vv-00396
Petitioner: Will Gallaway
Filed: 2021-01-08
Decided: 2025-05-29
Vaccine: influenza
Vaccination date: 2019-10-25
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 58000

AI-assisted case summary:
On January 8, 2021, Will Gallaway filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a right shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on October 25, 2019. Mr. Gallaway was 61 years old at the time of vaccination. The respondent is the Secretary of Health and Human Services. Initially, medical records indicated the vaccine was administered in his left arm, and Mr. Gallaway did not report right shoulder pain until approximately seven weeks post-vaccination. However, through subsequent affidavits and medical records, Mr. Gallaway established that the vaccine was likely administered in his right arm and that his shoulder pain began immediately or within 48 hours of the vaccination, meeting the criteria for a Table SIRVA claim. Chief Special Master Brian H. Corcoran found it more likely than not that the vaccination was administered in Petitioner’s right deltoid and that the onset of his shoulder pain occurred within 48 hours of vaccination. The Special Master found Petitioner entitled to compensation and awarded $58,000.00 for actual pain and suffering. The decision noted that Petitioner's medical history included osteoarthritis, bilateral knee problems, left shoulder pain, and neck and back pain. Contemporaneous medical records from October 25, 2019, indicated the flu vaccine was given in his left deltoid, with a handwritten "L" circled on the vaccine consent form. Mr. Gallaway did not complain of shoulder symptoms in subsequent visits until December 13, 2019, when he reported right shoulder pain, believing the influenza vaccine was administered in his right shoulder. His PCP noted mild tendonopathy but was unsure of its correlation to the vaccine. Petitioner attended physical therapy for right shoulder pain starting December 18, 2019, with the "injury/onset date" listed as "10/18/2019 new injury, flu shot," and reported pain beginning immediately after the flu shot. In February 2020, he reported persistent right shoulder pain despite PT, and received a cortisone injection. An MRI in July 2020 showed a complete rotator cuff tear. An orthopedist assessed him with a complete rotator cuff tear, impingement syndrome, localized osteoarthritis, and a SLAP lesion of the right shoulder, recommending surgery, which Mr. Gallaway declined. Petitioner's affidavits detailed his recollection of the vaccine being administered in his right arm due to room setup, and that he initially delayed reporting pain, believing it to be normal post-vaccination soreness. Affidavits from his sister and coworker also supported his account of receiving the vaccine in his right arm and experiencing pain shortly thereafter. The Special Master found that while the initial vaccine record indicated the left arm, Petitioner's subsequent reports to treaters, diagnostic testing, and exclusive treatment for right shoulder symptoms preponderantly supported a right arm administration. The Special Master also found that Petitioner met the criteria for a Table SIRVA, including no prior right shoulder issues, onset within 48 hours of vaccination, pain limited to the right shoulder, and no other condition explaining the symptoms. The award of $58,000.00 for actual pain and suffering was determined to be reasonable, considering factors such as the delay in seeking treatment, the relatively mild nature of the injury compared to other SIRVA cases, and the presence of a comorbid rotator cuff tear. Petitioner requested $65,000.00 for pain and suffering. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Austin Joel Egan of the U.S. Department of Justice. The decision was issued by Chief Special Master Brian H. Corcoran on May 29, 2025.

Theory of causation field:
Petitioner Will Gallaway, age 61, received an influenza vaccine on October 25, 2019. He alleged a right shoulder injury related to vaccine administration (SIRVA). The Special Master found that the vaccine was administered in Petitioner's right arm and that the onset of pain occurred within 48 hours of vaccination, satisfying the criteria for a Table SIRVA. This finding was based on Petitioner's consistent reports to treaters of right shoulder pain linked to the vaccination, despite an initial medical record indicating administration in the left arm. Petitioner's affidavits provided specific details about the vaccination circumstances, supporting the right arm administration. The Special Master determined that the delay in seeking treatment (approximately seven weeks) and the presence of a comorbid rotator cuff tear, among other factors, supported an award of $58,000.00 for actual pain and suffering, which was less than the requested $65,000.00. The decision was issued by Chief Special Master Brian H. Corcoran on May 29, 2025. Petitioner was represented by David John Carney, and Respondent by Austin Joel Egan.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_21-vv-00396-0
Date issued/filed: 2025-05-29
Pages: 18
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/28/2025) regarding 45 Ruling on Entitlement,, DECISION of Special Master,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 1 of 18
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-396V
WILL GALLAWAY, Chief Special Master Corcoran
Petitioner,
v. Filed: April 28, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On January 8, 2021, Will Gallaway filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that he suffered a right shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to him on
October 25, 2019. See Pet. at 1, ECF No. 1; see also Am. Pet., ECF No. 6. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
For the reasons discussed below, I find it more likely than not that the subject
vaccination was administered in Petitioner’s right deltoid, and the onset of his shoulder
pain occurred within 48 hours of vaccination, as alleged. I therefore find Petitioner entitled
to compensation, and award $58,000.00 in actual pain and suffering.
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 2 of 18
I. Relevant Procedural History
Following a medical review of this case, the parties attempted unsuccessfully to
come to a settlement agreement. See ECF Nos. 23-29. Petitioner subsequently filed a
motion for a ruling on the record and brief in support of damages on December 30, 2022.
ECF No. 32. Respondent filed a response and brief in support of damages on February
1, 2023. ECF No. 34. On February 16, 2023, Petitioner filed a supplemental affidavit and
a reply brief. ECF Nos. 35-36.
Before ruling on Petitioner’s motion, I issued an Order to Show Cause stating that
the record lacked preponderant support for Petitioner’s allegation that he received the flu
vaccine in his right, rather than left, arm. ECF No. 38. Additionally, I explained that
Petitioner needed to further substantiate that his alleged SIRVA occurred in the timeframe
specified for a Table SIRVA claim. Id. I ordered Petitioner to file any evidence pertaining
to these issues before I rule on the pending motion for entitlement. Id.
In response to my Order to Show Cause, Petitioner filed several supplemental
witness affidavits and a written brief addressing these critical issues. ECF Nos. 40-41.
Petitioner’s updated filings did not alter Respondent’s position, however, and he filed a
memorandum addressing Petitioner’s newly filed evidence in March 2024. ECF No. 42.
Petitioner filed a supplemental response thereafter. ECF No. 44. This matter is now ripe
for consideration.
II. Relevant Factual Evidence3
A. Contemporaneous Medical Records
Petitioner’s medical history is relevant for osteoarthritis, bilateral knee problems,
left shoulder pain, and neck and back pain, for which he regularly attended physical
therapy (“PT”). See, e.g., Ex. 3 at 16. On October 25, 2019, during a visit with his primary
care provider (“PCP”), Petitioner (then 61 years old) received a flu vaccine in his left
deltoid. Ex. 5 at 7. The vaccine consent form includes a sticker with the vaccine lot
number, expiration date, and a handwritten “L” that is circled. Id. The entry appears as
follows:
3 Only those facts relevant to site of vaccination and onset will be discussed herein, although other facts
may be included as necessary.
2

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 3 of 18
Petitioner thereafter had a number of medical visits over the next two months –
during which he did not complain of shoulder-related symptoms. For instance, on October
30, 2019, Petitioner underwent an endoscopy with gastric biopsy. Ex. 1 at 60-61.
Petitioner followed up with his PCP for depression on November 14, 2019. Id. at 48. He
also had a bone density examination for his osteopenia on November 19, 2019. Id. at 41.
More so, Petitioner visited his dermatologist on December 3, 2019, for a rash. Id. at 36.
During the musculoskeletal review of systems, Petitioner reported “joint pain, but no
weakness[.]” Id. Petitioner did not specify the site of this joint pain. See id.
On December 13, 2019 (now approximately seven weeks post-vaccination),
Petitioner visited his PCP complaining of “right shoulder pain.” Ex. 1 at 31. Petitioner
reported that “[h]e got an influenza vaccine in October he believes in his right shoulder.
Chart note says left shoulder.” Id. And, “since that time[,] his right shoulder has been
bothering him.” Id. Petitioner described pain with movement but “no actual loss of range
of motion [(“ROM)].” Id. A physical examination showed that the right shoulder was
“symmetric” to the left on palpation and the PCP could not “elicit any areas of tenderness.”
Id. at 32. Petitioner’s right shoulder ROM was also “symmetric to the left.” Id. The PCP
opined that Petitioner had a “mild tendonopathy [sic]” but the treater was “not sure how
or if it even correlates at all to the influenza vaccine.” Id. at 31. The PCP recommended
PT and a cortisone injection if PT was unsuccessful. Id.
Petitioner attended an initial PT evaluation for right shoulder pain on December
18, 2019. Ex. 3 at 13. The “injury/onset date” was listed as “10/18/2019 new injury, flu
shot[.]” Id. Specifically, Petitioner reported “R [sic] shoulder pain that began immediately
after getting a flu shot in Oct. [sic].” Id. He noted the “location of pain” as being in the right
shoulder. Id. Petitioner rated his pain at a 0-8/10, with a current rating of 1/10. Id. The visit
notes also reflect that Petitioner was right-handed. Id. An examination showed decreased
active ROM, normal passive ROM, and slightly diminished right shoulder strength
compared to the left. Id. at 13-14. Petitioner attended a total of four PT visits for his right
shoulder (through January 13, 2020). See id. at 1-18.
After the conclusion of his treatment with PT, Petitioner returned to his PCP in
February 2020 for evaluation of “right shoulder pain since October[.]” Ex. 1 at 9. Petitioner
reported that his PT treatment “made no difference,” and that he still experienced right
shoulder pain. Id. A physical examination of the right shoulder was consistent with a
positive empty can test and a grinding sensation “when his shoulder is just rotated through
simple [ROM].” Id. at 10. The PCP noted that “surgery should be avoided” based on
Petitioner’s “other medical problems[;]” Petitioner received a cortisone injection in his right
shoulder. Id. at 9.
3

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 4 of 18
During a June 1, 2020 visit with a treater in his PCP’s office for an unrelated
ailment, Petitioner reported that he “[h]ad received [an] intramuscular vaccine for
influenza on 10/25/19 and subsequently developed ipsilateral shoulder pain.” Ex. 4 at 45-
46. The situs of the shoulder pain was not specified. See id. at 46. Likewise, Petitioner
endorsed joint pain on examination, but he did not specify the site of this pain. Id. at 45.
Petitioner underwent an MRI of the right shoulder on July 15, 2020. Ex. 4 at 38-
39. Petitioner’s PCP contacted him regarding the results and stated that it showed a
complete rotator cuff tear, for which additional PT was recommended. Id. at 38.
On July 29, 2020, Petitioner saw an orthopedist for “right shoulder pain.” Ex. 4 at
24. He reported that “this started in October 2019 after receiving his flu shot.” Id. He
described the pain as “intermittent,” worse with movement, and rated as an 8/10. Id.
Petitioner did not endorse improvement of his pain with PT or his steroid injection. Id.
Upon examination of his right shoulder, Petitioner showed tenderness on palpation,
positive impingement signs, slightly diminished strength, and reduced ROM. Id. at 26. An
examination of the left shoulder was largely normal. See id. Petitioner was assessed with
a complete rotator cuff tear, impingement syndrome, localized osteoarthritis, and a SLAP
lesion – all of the right shoulder. Id. at 27. The orthopedist recommended surgery to repair
his rotator cuff tear. Id.
Petitioner followed up with his PCP for his right rotator cuff tear on August 21,
2020. Ex. 4 at 13. The PCP noted that it was likely safe (from a cardiovascular standpoint)
for Petitioner to undergo surgery, and that if he did not he might face permanent deficits,
although “he may be able to learn to live with out [sic] typical [ROM] or strength that he
had before the injury.” Id. After reading about the surgery and recovery, Petitioner was
“not sure at all that he want[ed] to have surgery” and noted that “[t]he shoulder pain has
been decreasing.” Id. An examination was consistent with mild pain with palpation and
limited abduction. Id. at 14. Petitioner did not opt for surgery and no other medical records
have been filed.
B. Affidavit Evidence
In his first affidavit (authored on April 6, 2021), Petitioner generally attested that he
received the vaccine in his right shoulder. Ex. 2 ¶ 2. He explained that “[u]pon receiving
the influenza vaccine,” he felt “sudden” pain at the injection site. Id. ¶ 10. The pain
extended through the shoulder, “and the injection site was incredibly tender and painful
to touch.” Id. He “believed at the time that this pain was normal post-vaccination side
effects and that it would be temporary” so he “decided to wait it out to see if the pain
continued” but instead it worsened “[o]ver the next several weeks.” Id. ¶¶ 10-11. Petitioner
4

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 5 of 18
stated that his ROM became “restricted and painful” during those weeks, and he therefore
knew it was time to seek care. Id. ¶ 11.
In his supplemental affidavit, drafted in February 2023 (after Respondent had
questioned situs and onset), Petitioner then “specifically remember[ed] getting the flu
vaccine in [his] right arm on October 25, 2019.” Ex. 6 ¶ 5. He described the circumstances
of his receipt of the vaccine, and recalled that he was seated in a chair in the corner of
the room, “so [his] left side was against the wall[.]” Id. The nurse then told Petitioner “that
the paperwork she had marked [said] that [he] would get the vaccine in the left shoulder
but asked if it mattered [] if she gave the shot in the right arm instead because of how the
room was set up[;]” Petitioner agreed. Id. Additionally, Petitioner addressed his initial post-
vaccination visits and explained that he did not mention right shoulder pain at these
appointments because he “thought the pain was typical vaccine pain and was hopeful
that it would go away on its own.” Id. ¶ 6.
Petitioner submitted a second supplemental affidavit – drafted in January 2024 and
in direct response to my Order to Show Cause (outlining the specific deficiencies in the
record related to situs and onset). Ex. 7. Petitioner attested that he has “always known
the vaccination was given in [his] right shoulder, however, [he] wasn’t ever asked to
address the specifics of what [he] remember[ed] regarding which arm was vaccinated.”
Id. ¶ 2. Regarding the onset of his injury, Petitioner stated that he did not mention right
shoulder complaints at his October 30 and November 19, 2019 visits, for example,
because they were for his liver issues and “this doctor was not the type that could help
with [his] shoulder.” Id. ¶¶ 4, 6. He stated the same reason for not bringing up shoulder
complaints during his December 3, 2019 dermatology visit. Id. ¶ 7. And, Petitioner
contended that he mentioned right shoulder complaints during his November 14th PCP
visit but that his PCP “brushed it off and told [Petitioner] it would feel better with time and
there was nothing he could do[;]” Petitioner trusted his medical opinion and hoped it would
heal on its own. Id. ¶¶ 5, 9. Petitioner did not know why this conversation was not
contained in the visit notes for that appointment. Id. ¶ 5.
Finally, Petitioner described general limitations in activities of daily living (“ADLs”)
caused by his right shoulder pain, including with sleeping and with his work as a
maintenance engineer – which requires lifting heavy objects and resulted in modification
of tasks. Ex. 2 ¶¶ 7, 11, 15-16, 20. He also explained that he can no longer pursue hobbies
such as hunting and archery, which brought him joy and a connection to nature. Id. ¶ 17.
Petitioner’s sister, with whom he works, also drafted an affidavit in 2024 (in
response to my Order to Show Cause). Ex. 8 ¶¶ 2-3. She noted that she “was aware” that
Petitioner had “a right shoulder injury after his October 2019 flu vaccine because when
5

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 6 of 18
he returned to work after getting it[,] he was holding his right arm weirdly.” Id. ¶ 5.
According to his sister, Petitioner told her that he received the vaccine in the right arm
and that he experienced pain the same day. Id. She explained that “[o]ver the next few
days,” Petitioner was still experiencing pain in his right shoulder, and she witnessed him
having difficulties performing tasks with his right arm thereafter. Id. ¶¶ 6-7.
Another one of Petitioner’s coworkers submitted an affidavit in response to my
Order to Show Cause. Ex. 9. According to this coworker, “after [Petitioner] got the vaccine
he told [the coworker] how he shouldn’t have gotten it in his right arm because it was
hurting him so badly.” Id. ¶ 5. This coworker attested that Petitioner told him how the
administrator was “supposed to give his vaccine in his left arm but they ended up giving
it to him in his right arm and he was upset about that since he was in so much pain.” Id.
Based on conversations with Petitioner regarding the pain he experienced “since” getting
the vaccine, this coworker “chose not to get [his] flu vaccine that year[.]” Id. ¶ 6.
Finally, Petitioner’s partner submitted an affidavit on his behalf (also drafted after
issuance of my Order to Show Cause). Ex. 10. She explained that when Petitioner
returned home from receiving the subject vaccine, he “started complaining about his pain
right away.” Id. ¶ 5. Petitioner described the circumstances of the shot to her and that he
was “sitting against the wall in the exam room, so the nurse just quickly put it in his right
arm instead of his left like he wanted[.]” Id. Petitioner’s partner stated that he was “in a lot
of pain that day that he got the vaccine, and his pain never went away.” Id. She also
described limitations in the use of Petitioner’s right arm after his receipt of the subject
vaccine, in that he “slowed down with basically everything[,]” including yardwork and
crossbow hunting. Id. ¶¶ 6-7. No other affidavit evidence has been submitted.
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,4 a
petitioner must establish that he suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
she received. Section 11(c)(1)(C).
4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
6

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 7 of 18
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
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).
7

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 8 of 18
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381 at 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 special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (holding that it is within the special master’s discretion to determine whether to
afford greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational).
I am resolving the fact disputes in question on the filed record. The Vaccine Act
and Rules not only contemplate but encourage special masters to decide many matters
on the papers where, in the exercise of their discretion, they conclude that doing so will
properly and fairly resolve the issue. See 42 U.S.C. § 12(d)(2)(D); Vaccine Rule 8(d).
Indeed, the decision to rule on the record in lieu of a hearing has been affirmed on appeal.
Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020);
8

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 9 of 18
Hooker v. Sec’y of Health & Hum. Servs., No. 02-472V, 2016 WL 3456435, at *21 n.19
(Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where special masters
decided cases on the papers in lieu of hearing and those decisions were upheld).
A. Factual Findings Regarding Situs
The record preponderantly supports the conclusion that the flu vaccine was likely
administered in Petitioner’s right shoulder, as alleged. The record of his December 13,
2019 PCP visit for right shoulder pain present ever since receiving a vaccination in his
right arm (Ex. 1 at 31), is particularly persuasive. This record was generated within seven
weeks of the subject vaccination, and is the most contemporaneous record other than the
vaccine administration record itself. Moreover, the record from this visit shows that
Petitioner’s PCP acknowledged that the vaccination “chart note says left shoulder” but
the PCP proceeded to document right shoulder complaints – suggesting that the treater
found Petitioner’s right shoulder symptoms credible. And as the above-referenced
medical records further establish, when seeking medical treatment on every occasion
thereafter, Petitioner consistently reported right shoulder pain attributable to his flu
vaccination. See, e.g., Ex. 1 at 9-10; Ex. 3 at 13; Ex. 4 at 24.
It is true that the vaccine administration record itself memorializes the site of the
administration of Petitioner’s flu vaccine as the left arm – with a handwritten circle of the
notation “L.” Ex. 5 at 7. While I routinely afford weight to a handwritten vaccination record,5
it is not unusual for the information regarding situs of vaccination set forth in this kind of
document to be incorrect – even if handwritten.6 In many instances, the information
regarding situs has been recorded prior to vaccination, but is not subsequently corrected
to conform with the actual situs of vaccine administration.7 Thus, although such records
are unquestionably the first-generated documents bearing on the issue of site (and merit
5 Rizvi v. Sec’y of Health & Hum. Servs., No. 21-881V, 2022 WL 2284311, at *4 (Fed. Cl. Spec. Mstr. May
13, 2022); Rodgers v. Sec’y of Health & Hum. Servs., No. 18-0559V, 2020 WL 1870268, at *5 (Fed. Cl.
Spec. Mstr. Mar. 11, 2020).
6 See, e.g., Arnold v. Sec’y of Health & Hum. Servs., No. 20-1038V 2021 WL 2908519, at *4 (Fed. CL.
Spec. Mstr. June 9, 2021); Syed v. Sec’y of Health & Hum. Servs., No. 19-1364V, 2021 WL 2229829, at
*4-5 (Fed. Cl. Spec. Mstr. Apr. 28, 2021); Ruddy v. Sec’y of Health & Hum. Servs., No 19-1998V, 2021 WL
1291777, at *5 (Fed. Cl. Spec. Mstr. Mar. 5, 2021); Desai v. Sec’y of Health & Hum. Servs., No 14-0811V,
2020 WL 4919777, at *14 (Fed. Cl. Spec. Mstr. July 30, 2020); Rodgers v. Sec’y of Health & Hum. Servs.,
No. 18-0559V, 2020 WL 1870268, at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2020); Stoliker v. Sec’y of Health &
Hum. Servs., No. 17-0990V, 2018 WL 6718629, at *4 (Fed. Cl. Spec. Mstr. Nov. 9, 2018).
7 In a recent ruling by another special master, the pharmacist who had administered the relevant vaccination
actually testified that she inputs “left deltoid” into the computer system as a matter of course, without
confirming the actual site of vaccination, based upon the assumption that most vaccinees are right-handed.
Mezzacapo v. Sec’y of Health & Hum. Servs., No. 18-1977V, 2021 WL 1940435, at *4 (Fed. Cl. Spec. Mstr.
Apr. 19, 2021).
9

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 10 of 18
some weight as a result), they are not per se reliable simply because they come first. In
fact, I have previously determined that the very nature of vaccination record creation
provides some basis for not accepting them as the evidence worthy of highest probative
weight. See, e.g., Rizvi v. Sec’y of Health & Hum. Servs., No. 21-881V, 2022 WL
2284311, at *4 (Fed. Cl. Spec. Mstr. May 13, 2022).
Indeed, the vaccine administration record at issue here is a handwritten entry as
to situs only, with typed entries for the other pertinent information (i.e., lot number,
expiration date). While it is not so ambiguous as to completely undermine what it suggests
about situs,8 it is the only evidence in this case that supports a finding of left arm situs.
When weighed against Petitioner’s clear, consistent, and close-in-time reports to treaters
of right shoulder pain following his receipt of a flu vaccine in that arm, his diagnostic
testing, and his exclusive treatment for right shoulder symptoms, it does not defeat a
finding that Petitioner received his October 25, 2019 flu vaccine in his right arm, as
alleged. To rule otherwise, the overall record would need to contain more instances in
which the counter-situs was suggested or supported.
Furthermore, Petitioner’s affidavits provide some additional support for right arm
situs. This is so even though most of the affidavit evidence submitted in this case was
drafted after situs became a disputed issue (and my Order to Show Cause) – thus giving
a reason to doubt the affiants’ credibility. However, Petitioner’s affidavit evidence bearing
on situs contains a specific recounting of the circumstances of his vaccination that is
consistent with what is known generally about vaccination records in the Program – that
such entries are often recorded prior to vaccination and not corrected even if the vaccine
was given in the opposing arm. See Mezzacapo v. Sec’y of Health & Hum. Servs., No.
18-1977V, 2021 WL 1940435, at *4 (Fed. Cl. Spec. Mstr. Apr. 19, 2021). Indeed,
Petitioner has attested that the nurse administering the subject vaccine told him “that the
paperwork she had marked [said] that [he] would get the vaccine in the left shoulder but
asked if it mattered [] if she gave the shot in the right arm instead because of how the
room was set up.” Ex. 6 ¶ 5. Thus, to the extent that Petitioner’s affidavit is consistent
with what is known about vaccination records in the Program, I will give such assertions
some weight.
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.
8 Compare Toothman v. Sec’y of Health & Hum. Servs., No. 22-207V, 2024 WL 2698520 (Fed. Cl. Spec.
Mstr. Apr. 19, 2024) (finding the vaccine administration record – supporting a contrary situs finding – was
haphazardly completed, thus providing a reason to afford it less weight when compared to the bulk of the
evidence).
10

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 11 of 18
1. Petitioner Has No Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise.9
2. Onset of Petitioner’s Injury Occurred Within 48 Hours of His
Vaccination
A petitioner alleging a SIRVA claim must show that he experienced the first
symptom or onset within 48 hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)), and that
her pain began within that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI
criteria)). The aforementioned medical records, coupled with Petitioner’s affidavits,
establish that Petitioner consistently reported to treaters onset close-in-time to
vaccination, that he sought treatment within a month and a half of his October 25, 2019
vaccination, and that he indeed was experiencing symptoms in the relevant timeframe.
See, e.g., Ex. 1 at 31; Ex. 3 at 13; Ex. 4 at 45-46; see also Exs. 2, 6.
Respondent argues Petitioner cannot establish onset, in part because his earliest
post-vaccination visit for shoulder symptoms occurred approximately seven weeks post
vaccination, on December 13, 2019. ECF No. 34 at 8-9. More so, even though Petitioner
described his shoulder pain as being “incredibly tender” since immediately post
vaccination in his affidavit, that attestation is inconsistent with his initial physical
examination (which failed to reveal shoulder tenderness), and his failure to report
shoulder symptoms at his first four intervening post vaccination visits. Id. (citing Ex. 1 at
32; Ex. 3 at 14; Ex. 2).
The fact that Petitioner did not seek treatment for over one and a half months post
vaccination (on December 13, 2019 – 49 days post vaccination), however, is not alone a
basis for finding Table onset not to have been established. I have found in other cases
that even greater delays did not undermine an otherwise-preponderantly-established
onset showing consistent with the Table. See, e.g., Tenneson v. Sec’y of Health & Hum.
Servs., No. 16-1664V, 2018 WL 3083140, at *5 (Fed. Cl. Spec. Mstr. Mar. 30, 2018), mot.
for rev. denied, 142 Fed. Cl. 329 (2019) (finding a 48-hour onset of shoulder pain despite
a nearly six-month delay in seeking treatment); Williams v. Sec’y of Health & Hum. Servs.,
No. 17-830V, 2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2019) (noting a delay
9 Although Petitioner appears to have attended PT for several ailments pre vaccination (including left
shoulder pain associated with osteoarthritis), I do not consider this pre-vaccination history detrimental to
Petitioner as a result of my finding of right arm situs, here. See, e.g., Ex. 3 at 16 (a July 26, 2018 report of
“pain through his left shoulder and also his low back over the years”).
11

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 12 of 18
in seeking treatment for five-and-a-half months because a petitioner underestimated the
severity of her shoulder injury). And it is common for SIRVA petitioners to delay seeking
treatment, thinking the injury will resolve on its own, 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. Also, the delay was not appreciably long – and the fact that treatment was
sought in a relatively short timeframe is supportive of a close-in-time onset.
Likewise, the fact that Petitioner sought care on four occasions between the date
of his vaccination and the December 13, 2019 visit (without mentioning shoulder
symptoms) does not prevent a favorable onset finding. See Ex. 1 at 36, 41, 48, 60-61.
Some of those appointments were with specialists or were for specific testing (i.e., an
October 30, 2019 endoscopy and a November 19, 2019 bone density examination), and
thus did not present occasions for Petitioner to report an unrelated problem. See id. at
41, 60-61. Admittedly, one of these visits (on November 14, 2019), was with his PCP –
with whom it would have been reasonable for Petitioner to have complained of shoulder
pain (especially if the pain was as severe as Petitioner alleges in his affidavit at that time).
But I do not find Petitioner’s omission of shoulder complaints at this visit to completely
undermine his Table onset claim when considered against the bulk of the evidence. Id. at
48; Ex. 2 ¶¶ 10-11; Ex. 6.
Petitioner’s December 3, 2019 dermatology visit – during which Petitioner
mentioned general joint pain without describing right shoulder pain, specifically – also
does not ultimately preclude a showing of 48-hour onset. See Ex. 1 at 36. Again, this visit
was with a specialist, and Petitioner has offered some credible explanation for not
mentioning shoulder-related complaints at this and other intervening visits (i.e., that he
did not think this type of doctor could help, and he was hopeful that the pain would resolve
on its own). See, e.g., Ex. 2 ¶¶ 10-11; Ex. 6 ¶ 6; Ex. 7 ¶ 7. I will note, however, Petitioner’s
ability to seek care for non-shoulder related issues during this time is somewhat
inconsistent with his affidavit, wherein he describes shoulder pain affecting his ADLs and
worsening by this time. Ex. 2 ¶ 7. This evidence is thus further supportive of the
conclusion that Petitioner’s SIRVA was mild – an issue that will go to damages.
Petitioner affirmatively and repeatedly linked his shoulder pain to the flu vaccine –
beginning with the December 13th treatment encounter, at which time he noted that “[h]e
got an influenza vaccine in October” and “since that time[,] his right shoulder has been
bothering him.” Ex. 1 at 31 (emphasis added). Other subsequent medical records also
corroborate the contention made in Petitioner’s affidavit that his pain likely began within
48 hours of vaccination. See, e.g., Ex. 3 at 13 (a December 18, 2019 PT report of
12

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 13 of 18
“shoulder pain that began immediately after getting a flu shot in Oct. [sic].”)10; Ex. 1 at 9
(a February 20, 2020 PCP follow-up note of “right shoulder pain since October[.]”); Ex. 4
at 45-46 (a June 1, 2020 report that he “[h]ad received [an] intramuscular vaccine for
influenza on 10/25/19 and subsequently developed ipsilateral shoulder pain.”); Ex. 4 at
24 (a July 29, 2020 report of right shoulder that “started in October 2019 after receiving
his flu shot.”). Some of these medical entries include only a general temporal relationship
between onset of his injury and his October vaccination. Yet, Petitioner consistently linked
the two events. Petitioner’s medical records thus provide preponderant support for a
close-in-time onset.
Accordingly, and based upon the above, I find there is preponderant evidence that
establishes the onset of Petitioner’s right shoulder pain more likely than not occurred
within 48 hours of vaccination, and thus within the Table timeframe.
3. Petitioner’s Pain Was Limited to His Right Shoulder
The third requirement for a Table SIRVA is that the pain and limited ROM are
limited to the shoulder in which the subject vaccination was administered. 42 C.F.R. §
100.3(c)(10)(iii). Respondent has disputed that Petitioner meets this criterion in so much
as he had failed to show he received the subject vaccination in the injured, right arm. See
ECF No. 34 at 7-8. I find this argument moot in light of my finding regarding situs and thus
no further discussion of this criterion is warranted.11
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states 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 contend that Petitioner fails to meet this criterion,
and there is not preponderant evidence in the filed record to suggest otherwise. I will note,
however, that evidence of Petitioner’s rotator cuff tear and osteoarthritis – while not
precluding Petitioner from establishing a Table SIRVA claim per se – speaks to a lower
10 Another entry for this visit lists the “injury/onset date” as “10/18/2019” – a week before the subject
vaccination. Ex. 3 at 13. Still, despite the incorrect vaccination date, this entry describes the onset of
Petitioner’s right shoulder pain as being a “new injury” and linked to the “flu shot” – thus providing some
added support for Table onset. See id.
11 I emphasize that the crux of Respondent’s argument regarding this criterion is situs, not the type of
“localization of pain” arguments typically litigated with respect to this QAI requirement. See, e.g., Kahler v.
Sec’y of Health & Hum. Servs., No. 19-1938V, 2024 WL 1928451 (Fed. Cl. Spec. Mstr. Mar. 27, 2024)
(addressing Respondent’s argument regarding the third QAI criterion – that the petitioner’s pain radiated to
other areas of the upper extremity, including the hand, and was thus inconsistent with a SIRVA).
13

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 14 of 18
damages award, as Petitioner’s vaccine injury was likely not the predominant factor in
causing his symptoms.
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).
As stated above, the record shows that Petitioner received a flu vaccine
intramuscularly in his right shoulder on October 25, 2019, in Oregon. See, e.g., Ex. 2; see
also Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I)
(requiring administration within the United States or its territories). There is no evidence
that Petitioner has collected a civil award for his injury. Ex. 2; Section 11(c)(1)(E) (lack of
prior civil award). As stated above, I have found that the onset of Petitioner’s left shoulder
pain was within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a
Table SIRVA. Additionally, it is not disputed that Petitioner has established the six-month
severity requirement. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
IV. Damages
The parties have also briefed damages in this case, which is limited to a request
for an actual pain and suffering award. Petitioner requests $65,000.00 for actual pain and
suffering. ECF No. 32 at 1-2; ECF No. 36 at 1. Respondent proposes an award of “less
than” Petitioner’s request. ECF No. 34 at 12.
A. Legal Standards for Damages Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining the appropriate amount of damages for SIRVA claims, based
in part on their treatment in SPU. I fully adopt and hereby incorporate my prior discussion
from 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.
14

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 15 of 18
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). See also Yodowitz v. Sec’y of Health & Hum.
Servs., No. 21-370V, 2024 WL 4284926 (Fed. Cl. Spec. Mstr. Aug. 23, 2024) (discussing
statistical data of compensation awarded in prior SIRVA cases to-date); Boyle v. Sec’y of
Health & Hum. Servs., No. 21-1257V, 2025 WL 1007393 (Fed. Cl. Spec. Mstr. Feb. 26,
2025).
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.12
B. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult, with no impairments that would impact his
awareness of his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing the analysis in this case, I review the record as a whole to include
the medical records, affidavits, witness declarations, and all other filed evidence, plus the
parties’ briefs and other pleadings. I consider prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases and rely upon my experience adjudicating these cases.
However, I base my determination on the circumstances of this case.
This is a straightforward pain and suffering determination – with the parties
disputing very little regarding Petitioner’s compensable SIRVA-related treatment and the
duration of his injury. Compare ECF No. 32 (Motion) at 24-25 (describing Petitioner’s 10-
month course of treatment including four PT sessions, an MRI, x-ray, one cortisone
injection, orthopedic and PCP visits, with surgery being a recommended option), with ECF
No. 34 (Response) at 11 (noting Petitioner delayed treatment for seven weeks, had four
PT sessions, one steroid injection, and treated for a total of 10 months before declining
12 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)).
15

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 16 of 18
surgery).
The filed record in this case establishes that Petitioner suffered a mild SIRVA
overall. Particularly probative is evidence demonstrating Petitioner delayed seeking
treatment for seven weeks post vaccination, underwent subsequent treatment with an x-
ray and an MRI, participated in only four PT sessions over a one-month span, and
received one cortisone injection – resulting in some lingering pain and effects following
treatment. In addition, Petitioner’s medical records contain descriptions of his pain on a
ten-point scale, initially ranging from a 0-8/10 (with a current rating of 1/10) just two
months post-vaccination on December 18, 2019, at the beginning of his care. See Ex. 3
at 13. When he reported severe pain rated at an 8/10 on July 29, 2020, it was only after
he had completed PT and received a steroid injection, each failing to provide relief. See
Ex. 4 at 24. But an MRI performed the same month revealed the presence of a comorbid
(but unrelated – since it could not be caused by vaccination) complete rotator cuff tear –
which could (at least partially) explain some of Petitioner’s ongoing and more severe pain
at that point. See id. at 38.
Additionally, Petitioner experienced diminished ROM, with some slight residual
limitations in abduction at the conclusion of his vaccine-related care in August 2020. See,
e.g., Ex. 3 at 13-14; Ex. 4 at 14, 26. I will note, however, that Petitioner’s failure to exhibit
reduced ROM or tenderness at his initial post-vaccination visit for vaccine-related
complaints (on December 13, 2019), is somewhat inconsistent with his assertions in his
affidavit, where he described “incredib[le]” tenderness and restricted ROM by this time –
again speaking to the overall mildness of Petitioner’s injury. Compare Ex. 1 at 31-32, with
Ex. 2 ¶¶ 10-11.
More so, while I acknowledge record evidence that surgery was considered as a
means to remedy his ongoing symptoms and limitations, and as a way to avoid modifying
his movements in the future (e.g., Ex. 4 at 13, 27), I cannot heavily rely on this
recommendation in justifying a higher award – since Petitioner chose to forego this
treatment option. But I also credit that the reason Petitioner opted against this course of
action was over concern of his other unrelated health conditions. It thus provides some
corroborative support for the degree of severity of his injury.
Turning to the parties’ cited comparable cases, Petitioner relies on four prior
decisions in making his pain and suffering demand – Magee v. Sec’y of Health & Hum.
Servs., No. 18-185V, 2020 WL 5031971 (Fed. Cl. Spec. Mstr. July 21, 2020) (awarding
$65,000.00 in pain and suffering); Kuhn v. Sec’y of Health & Hum. Servs., No. 18-91V,
2020 WL 3750994 (Fed. Cl. Spec. Mstr. June 5, 2020) (awarding $67,500.00 in pain and
suffering); Morrison-Langehough v. Sec’y of Health & Hum. Servs., No. 19-1103V, 2022
16

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 17 of 18
WL 1863924 (Fed. Cl. Spec. Mstr. Apr. 14, 2022) (awarding $70,000.00 in pain and
suffering); and T.E. v. Sec’y of Health & Hum. Servs., No. 19-633V, 2021 WL 2935751
(Fed. Cl. Spec. Mstr. May 7, 2021) (awarding $70,000.00 in pain and suffering).
Respondent, by contrast, unhelpfully provided no comparable cases (although he
endeavored to distinguish those provided by Petitioner).
Petitioner’s reliance on these cases does not advance Petitioner’s argument for
his full requested amount of $65,000.00. Indeed, as noted above, Petitioner’s delay in
seeking treatment is a factor that speaks to the ultimate amount of pain and suffering
awarded. Petitioner here delayed seeking treatment for approximately seven weeks (49)
days post vaccination, despite evident opportunity to have it treated in this timeframe.
And the petitioners in his proposed comparable cases sought care much sooner than he
did. For instance, the Morrison-Langehough petitioner delayed care the longest out of
Petitioner’s cited comparable cases: 29 days. See 2022 WL 1863924. Likewise, the
Magee petitioner waited three weeks post vaccination; the T.E. petitioner 18 days; and
the Kuhn petitioner sought care within just eight days of the subject vaccination. See 2020
WL 5031971; 2021 WL 2935751; 2020 WL 3750994. Moreover, only the Morrison-
Langehough petitioner had any intervening visits before mentioning shoulder complaints
(one versus Petitioner’s four). 2022 WL 1863924, at *9.
Similarly, the petitioners in all of these cases received more treatment than
Petitioner. For instance, Petitioner attended a total of only four PT sessions - a notably-
low number of PT sessions compared to other SIRVA claims in the Program, and even
lower than the purportedly-comparable petitioners. The Morrison-Langehough petitioner,
for example, attended 12 total PT sessions. See 2022 WL 1863924. More so, the T.E.
petitioner attended nine sessions; the Magee petitioner had seven visits; and the Kuhn
petitioner attended five sessions over a one-month period – the closest to that of
Petitioner’s circumstances of PT (four sessions over an approximate one-month
timeframe). See 2021 WL 2935751; 2020 WL 5031971; 2020 WL 3750994. In addition,
the Morrison-Langehough and Kuhn petitioners had an objectively longer treatment
course compared to Petitioner in this case (18 months - with the bulk of treatment in the
first 11 months) and 11 months, respectively, versus Petitioner’s 10-month course). See
2022 WL 1863924; 2020 WL 3750994. Petitioner’s somewhat lesser treatment thus
equates to a lower award than that awarded in his cited comparable cases.
Another factor that is considered in awarding pain and suffering is the effect of the
injury on Petitioner’s personal life. Here, while Petitioner’s SIRVA undoubtedly made it
more difficult for him to perform his job as a maintenance engineer (requiring lifting heavy
objects), I note that Petitioner did not seek a claim for lost wages, nor did he describe with
specificity the ways in which he was forced to modify his duties or otherwise explain the
17

Case 1:21-vv-00396-UNJ Document 51 Filed 05/29/25 Page 18 of 18
other implications his injury had on his work. See generally Ex. 2. This personal factor will
thus not be heavily weighed in awarding damages. At the same time, Petitioner credibly
explained (and his partner corroborated) that Petitioner had lost the enjoyment of hunting
and archery as a result of his vaccine-related injury. See, e.g., Ex. 2 ¶ 17; Ex. 10 ¶¶ 6-7.
This factor will play a small role in the amount awarded for Petitioner’s pain and suffering
but does not marshal in favor of a significantly larger award.
Under such circumstances and considering the arguments presented by both
parties, a review of the cites cases, and based on the record as a whole, I find that
$58,000.00 in compensation for past pain and suffering is reasonable and appropriate in
this case – a figure somewhat lower than what was awarded in the proposed comparable
cases, since I conclude the degree of suffering herein was somewhat diminished in
comparison.
Conclusion
In view of the evidence of record, I find that Petitioner is entitled to
compensation. I also find that, for all of the reasons discussed above and based on
consideration of the record as a whole, $58,000.00 represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.
Accordingly, Petitioner is awarded a lump sum of $58,000.00 (for actual pain
and suffering) to be paid through an ACH deposit to petitioner’s
counsel’s IOLTA account for prompt disbursement. This amount represents
compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).13
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.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
14 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.
18