VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00530
Package ID: USCOURTS-cofc-1_21-vv-00530
Petitioner: Vivien Cord
Filed: 2021-01-11
Decided: 2024-12-02
Vaccine: influenza
Vaccination date: 2020-08-19
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 115000

AI-assisted case summary:
Vivien Cord, a 79-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on January 11, 2021. She alleged that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccination received on August 19, 2020. The respondent filed a Rule 4(c) report on August 17, 2023, conceding that Petitioner's injury was consistent with SIRVA as defined by the Vaccine Injury Table. The respondent noted that Petitioner had no prior history of left shoulder pain, inflammation, or dysfunction; that her pain occurred within 48 hours after receiving the intramuscular vaccination; that the pain was limited to the shoulder in which the vaccine was administered; and that no other condition or abnormality was identified to explain the pain. The respondent further agreed that Petitioner suffered residual effects of her condition for more than six months. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on August 21, 2023, finding Petitioner entitled to compensation. The parties were unable to agree on a damages figure, leading to further proceedings. Petitioner sought $130,000.00 for pain and suffering, arguing her SIRVA injury was moderately severe, with immediate severe pain, inability to lift her arm, and requiring surgical intervention. Respondent argued for a lower award, noting Petitioner did not pursue conservative treatment before surgery and that her symptoms lasted slightly over six months. Petitioner received an influenza vaccination in her left arm on August 19, 2020. Eight days later, she reported intense left shoulder pain that began about half a day after the vaccination. Examination revealed tenderness, reduced strength, and severely limited range of motion. She received a cortisone injection, which provided temporary relief. She continued to experience worsening pain and difficulty sleeping. An MRI revealed supraspinatus tendinosis with a small full-thickness tear, partial thickness tear of the infraspinatus, moderate joint effusion with diffuse synovitis, moderate biceps tendinopathy, moderate AC arthrosis, and a SLAP tear. Multiple orthopedic surgeons provided opinions, with some recommending arthroscopic surgery and others recommending physical therapy. Petitioner underwent arthroscopic surgery on December 10, 2020, which included debridement, capsular release, synovectomy, and subacromial decompression. Post-operative diagnoses included inflammatory synovitis and bursitis, possible sepsis, and possible autoimmune inflammatory disease. Cultures were negative, and pathology reports indicated rheumatoid findings. Petitioner attended a limited number of physical therapy sessions post-surgery. Her condition was deemed an autoimmune inflammatory arthropathy. While bloodwork was negative for autoimmune disease, she continued to report diffuse joint pain. By January 19, 2021, her left shoulder range of motion and pain had improved by 40%. A March 9, 2021, wellness visit noted her status post SIRVA from the flu shot about a year prior and also noted new right shoulder pain after a COVID-19 vaccination. A rheumatologist visit on March 15, 2021, noted tenderness in her left shoulder but good range of motion, though she reported pain in other joints. Subsequent testing for inflammatory rheumatologic disease was negative. No further records of treatment for her shoulder pain were filed. Chief Special Master Brian H. Corcoran issued a decision awarding damages on December 2, 2024. He found Petitioner's situation most similar to a prior case where $105,000.00 was awarded, but adjusted upward due to Petitioner's more severely limited range of motion, additional specialist testing, and incomplete recovery, resulting in an award of $115,000.00 for past pain and suffering. This award was a lump sum payment.

Theory of causation field:
Vivien Cord, age 79, received an influenza vaccination on August 19, 2020. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent conceded entitlement, agreeing her injury was consistent with SIRVA on the Vaccine Injury Table, noting onset of pain within 48 hours of vaccination, localized to the injection site, with no prior shoulder issues and no other identified cause, and residual effects for more than six months. The case proceeded to damages. Petitioner sought $130,000 for pain and suffering, citing severe pain, inability to lift her arm, and need for surgery. Respondent argued for a lower award due to lack of conservative treatment prior to surgery and symptom duration slightly over six months. Medical records detail significant left shoulder pain starting approximately half a day after vaccination, leading to limited range of motion, tenderness, and subsequent MRI findings of tendinosis, tears, synovitis, and arthrosis. Petitioner underwent arthroscopic surgery. While some physicians recommended physical therapy, others recommended surgery. Petitioner attended only a few physical therapy sessions. The Special Master considered the severity of injury, duration of suffering, treatment course including surgery, and compared to prior SIRVA awards. The Special Master found Petitioner's case most similar to a prior case awarding $105,000, but awarded $115,000.00 for past pain and suffering due to more severe range of motion limitations, additional specialist testing, and incomplete recovery, despite a shorter duration of documented symptoms compared to some higher-award cases. The award was a lump sum payment. Decision by Chief Special Master Brian H. Corcoran on December 2, 2024. Petitioner's counsel: Bridget Candace McCullough, Muller Brazil, LLP. Respondent's counsel: Alexa Roggenkamp, U.S. Department of Justice.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00530-0
Date issued/filed: 2023-09-20
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/21/2023) regarding 36 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00530-UNJ Document 39 Filed 09/20/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0530V
VIVIEN CORD, Chief Special Master Corcoran
Petitioner, Filed: August 21, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Martin Conway Galvin, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 11, 2021, Vivien Cord filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
injury (“SIRVA”) as a result of influenza vaccination on August 19, 2020. Amended
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On August 17, 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 that “Petitioner’s injury is consistent with SIRVA as defined
by the Vaccine Injury Table. Specifically, Petitioner had no history of pain, inflammation,
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-00530-UNJ Document 39 Filed 09/20/23 Page 2 of 2
or dysfunction of her left shoulder prior to vaccination; pain occurred within 48 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 shoulder pain.” Id. at 4. Respondent further agrees that “Petitioner
suffered the residual effects of her condition for more than six months.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-00530-1
Date issued/filed: 2024-12-02
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 11/01/2024) regarding 51 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0530V
VIVIEN CORD, Chief Special Master Corcoran
Petitioner, Filed: November 1, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 11, 2021, Vivien Cord filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) following an influenza vaccination she received on August 19,
2020. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of the
Office of Special Masters, and although entitlement was conceded in Petitioner’s favor,
the parties could not agree to a damages figure.
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $115,000.00 for actual pain and suffering (the sole
compensation element at issue).
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-00530-UNJ Document 55 Filed 12/02/24 Page 2 of 12
I. Relevant Procedural History
Even though the matter was conceded, the parties reached an impasse in their
discussions regarding damages. ECF No. 42. Petitioner therefore filed a Brief in Support
of Damages (“Br.”) on February 7, 2024. ECF No. 45. Respondent filed a responsive brief
(“Resp.”) on March 25, 2024. ECF No. 46. I subsequently proposed that the parties be
given the opportunity to argue their positions at a “Motions Day” hearing, at which time I
would decide the disputed damages issues. ECF. No. 49. That hearing was held on
October 25, 2024,3 and the case is now ripe for a written determination.
II. Relevant Medical History
Petitioner was 79-years old when she received a flu vaccine in her left arm at a
CVS pharmacy in New York on August 19, 2020. Ex. 3 at 3. Eight days later, she visited
a physician’s assistant at her orthopedic surgeon’s office and reported “intense” left
shoulder pain that began about half a day after her flu shot. Ex. 6 at 491. On exam,
Petitioner had tenderness, reduced strength and severely limited range of motion. Id. at
492. She received a cortisone injection. Id.
Petitioner returned to her orthopedic provider on September 11, 2020, to follow up
on her left shoulder pain. Ex. 6 at 493. She now stated that the cortisone injection had
provided relief for a couple of days, then the pain returned and seemed to be getting
worse. Id. She reported difficulty sleeping. Id. At that time, the provider noted that
Petitioner could not take NSAIDs due to potential interaction with her other medications.
Id. He offered physical therapy, which Petitioner declined because she did not believe it
could work. Id. She was advised to use heating pads and/or ice compresses. Id.
An MRI on October 3, 2020 revealed (1) marked supraspinatus tendinosis with a
small full-thickness tear; (2) partial thickness tear of the infraspinatus; (3) moderate joint
effusion with diffuse synovitis; (4) moderate biceps tendinopathy; (5) moderate AC
arthrosis; and (6) a SLAP tear. Ex. 6 at 496.
Petitioner saw an orthopedic surgeon at the same practice on October 14, 2020.
Ex. 6 at 497. She reported “quite severe” pain in her left shoulder about half a day after a
flu injection in August and only three days of relief from the previous cortisone injection.
Id. On exam, she had significant pain and guarding during testing. Id. at 498. The doctor
believed the symptoms could have been precipitated by the vaccine, but he stated that
3 At the end of the hearing held on October 25, 2024, I issued an oral ruling from the bench on damages in
this case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the
case’s docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 3 of 12
he had never heard of a vaccine causing a rotator cuff tear. Id. He recommended
arthroscopic surgery. Id.
On October 19, 2020, Petitioner sought a second opinion with another orthopedic
surgeon. Ex. 6 at 500. She reported “significant pain” in her left shoulder since her flu
vaccination at CVS. Id. On exam, she had significantly reduced ROM, positive
impingement testing, and diffuse tenderness to palpation. Id. at 502. The doctor noted a
pseudosubluxation on her x-rays and recommended a course of physical therapy. Id. He
noted that if she did not respond to therapy, surgical intervention may be necessary. Id.
The following day, Petitioner had a physical therapy evaluation. Ex. 7 at 11. She
reported left shoulder pain since the day after her vaccination, with 9/10 pain at its worst.
Id. Petitioner’s examination revealed severely reduced range of motion and the “chronic,
inflammatory, and severe” pain. Id. Treatment was planned twice a week for four to six
weeks. Id. at 12. Petitioner did not have continue physical therapy at that time.
On October 28, 2020, Petitioner sought a third opinion from another orthopedic
surgeon. Ex. 4 at 5. She reported significant pain and loss of function since her flu shot
on August 19, 2020. Id. She had difficulty raising her arm above 90 degrees and difficulty
dressing and bathing. Id. The doctor opined that her MRI findings were not uncommon
for her age. Id. He felt it was reasonable to treat non-operatively with physical therapy
because rotator cuff repairs in patients her age have a high rate of failure. Id.
Petitioner next sought evaluation from a fourth orthopedic surgeon on October 30,
2020. Ex. 5 at 17. She reported worsening left shoulder pain and decreased mobility since
her immunization in August 2020. Id. The doctor reviewed Petitioner’s imaging and noted
“marked inflammatory changes” around the bursa, indicating possible infection. Id. at 20.
He recommended blood work. Id. She returned to this surgeon on November 11, 2020.
Id. at 13. Based on her blood work, he had heightened concern for septic arthritis or septic
bursitis. Id. at 15. He recommended arthroscopic surgery to take synovial biopsies and
referred her to an infectious disease specialist. Id. at 15-16.
On November 20, 2020, Petitioner saw an infectious disease specialist. Ex. 6 at
519. Although he agreed to do arthrocentesis to obtain fluid from the shoulder to test, he
thought that after three months and no fever or other infectious signs, an inflammatory
process was more likely than an infectious process. Id. at 521.
Petitioner’s exam was unchanged when she returned to the orthopedist on
December 2, 2020. Ex. 5 at 9. He recommended that Petitioner find a new infectious
disease doctor (as she did not like the first one) and recommended IV antibiotics until
infection was ruled out. Id. at 12.
3

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 4 of 12
On December 8, 2020, Petitioner saw a rheumatologist. Ex. 8 at 7. She reported
pain in the shoulder, eye pain, and dryness in her eyes and mouth, and left ankle pain
and swelling beginning November 29, 2020. Id. The doctor found that her exam was “not
consistent with a raging septic arthritis,” but agreed that testing the synovial fluid was
appropriate. Id. at 9.
On December 9, 2020, Petitioner saw a second infectious disease specialist. Ex.
8 at 12. His assessment was arthritis. Id. at 15. He noted that there was not yet proof of
infection – and her range of motion, pain levels, lack of fever were not consistent with a
typical septic joint. Id.
Petitioner underwent arthroscopic surgery on December 10, 2020. Ex. 9 at 61-62.
Surgery included extensive debridement of the glenohumeral joint with capsular release
and synovectomy and subacromial decompression. Id. at 61. Her post-operative
diagnoses were inflammatory synovitis and bursitis, possible sepsis, and possible
autoimmune inflammatory disease. Id. The operative notes indicate “cloudy yellow
synovial fluid,” “raging synovitis,” grade 3 degenerative change of the glenohumeral joint,
and degenerative tearing of the labrum. Id.
On December 18, 2020, Petitioner underwent a post-operative exam. Ex. 5 at 5.
The cultures obtained during surgery were negative and the “pathology report read as
rheumatoid.” Id. at 7. Her left shoulder condition was deemed an autoimmune
inflammatory arthropathy, with “no significant structural damage,” and she was referred
her to a rheumatologist and for physical therapy. Id.
Petitioner returned to physical therapy on December 23, 2020. Ex. 7 at 16. Her
pain level was 3/10 and she reported her worst pain as 8/10. Id. Treatment was planned
twice a week for 6-8 weeks. Id. at 17. Petitioner attended only one additional treatment
on December 28, 2020. Id. at 18.
Petitioner again saw a rheumatologist on January 11, 2021. Ex. 8 at 18. She
reported continued “diffuse joint pain,” and no change in her left shoulder. Id. Petitioner’s
repeat bloodwork was negative for autoimmune disease. Id. at 21. At a cardiologist
appointment on January 19, 2021, Petitioner reported that her left shoulder range of
motion and pain had improved by 40%. Ex. 10 at 9.
The record of Petitioner’s wellness visit on March 9, 2021, states that she was
“status post SIRVA of left shoulder from flu shot about a year ago.” Ex. 10 at 26. She
reported right shoulder pain, discomfort, and weakness that began immediately after her
4

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 5 of 12
second covid-19 vaccination on February 11, 2021. Id. was referred to an orthopedist. Id.
at 27.
Petitioner returned to her rheumatologist on March 15, 2021. Ex. 8 at 23. She
reported pain in both wrists, knees, elbows, and left shoulder. Id. On exam, she had
tenderness in her left shoulder, but “good ROM.” Id. at 26. The doctor ordered further x-
rays (knees and hands) and bloodwork due to her morning stiffness and polyarthralgia.
Id. The testing was ultimately negative for inflammatory rheumatologic disease. Id. at 33.
No further records of treatment for Petitioner’s shoulder pain were filed.
III. The Parties’ Arguments
Petitioner seeks an award of $130,000.00 for her pain and suffering. Br. at 1. She
argues that her SIRVA injury was “moderately severe,” with immediate severe pain, “a
complete inability to lift her arm,” and required surgical intervention. Id. at 10. She
highlights that her impairments were significant and her treatment extensive (if relatively
short in duration). Id. Finally, Petitioner note that after her surgery she reported only 40%
improvement in symptoms and continues to experience “residual pain” in her shoulder.
Id.
During the hearing and in her brief, Petitioner discussed prior SIRVA cases that
involved injured claimants with awards ranging from $100,000 to $130,000 and argued
that an award of $130,000.00 in pain and suffering was reasonable and appropriate in
comparison. Mot. at 7-10.
a. Respondent
Respondent argues that Petitioner’s request for $130,000 in pain and suffering is
“excessive.” Resp. at 2. He notes that her case “represents a unique circumstance where
a moderate-to-severe award is warranted, even though Petitioner received surgery on
her shoulder.” Id. at 13. Specifically, Respondent argues that Petitioner “did not choose
to pursue conservative treatment” prior to her surgery and that the duration of her
symptoms was “only slightly over six months.” Id. at 13-14.
Respondent also distinguishes Petitioner’s cited prior SIRVA cases, noting that all
of them had longer treatment courses and more treatment (including conservative
measures) in addition to surgery. Resp. at 15-16. Respondent discussed eleven prior
SIRVA cases during the hearing, which taken together suggested an appropriate range
of award between $65,000 and $97,500. Id. at 11-13.
5

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 6 of 12
IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
Special masters may also consider prior pain and suffering awards to aid in
determining the appropriate amount of compensation for pain and suffering in a 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.4 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).
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
6

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 7 of 12
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013).
The Graves court maintained that to do so resulted in “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared
to the most extreme cases and reduced accordingly.” Id. at 590. Instead, Graves
assessed pain and suffering by looking to the record evidence, 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 alternative 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.
V. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2024, 4,138 SPU SIRVA cases have resolved since the inception of SPU ten
years before. Compensation has been awarded in the vast majority of cases (4,016), with
the remaining 122 cases dismissed.
2,308 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that the petitioner was entitled to compensation (as opposed to an informal settlement or
concession).6 In only 235 of these cases, however, was the amount of damages also
determined by a special master in a reasoned decision.7 As I have previously stated, the
written decisions setting forth such determinations, prepared by neutral judicial officers
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 The remaining 1,708 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
7 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (2,044 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
7

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 8 of 12
(the special masters themselves), provide the most reliable guidance in deciding what
similarly-situated claimants should also receive.8
The data for all categories of damages decisions described above reflect the
expected differences in outcome, summarized as follows:
Damages Proffered Stipulated Stipulated9
Decisions by Damages Damages Agreement
Special Master
Total Cases 235 2,044 29 1,708
Lowest $35,000.00 $10,000.00 $45,000.00 $2,500.00
1st Quartile $67,910.00 $60,539.19 $90,000.00 $35,000.00
Median $85,920.03 $80,240.98 $130,000.00 $50,000.00
3rd Quartile $125,066.35 $109,681.54 $162,500.00 $77,500.00
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 235 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$35,000.00 to $215,000.00, with $85,000.00 as the median amount. Only ten of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.10 In one of these cases, the future pain and suffering award was
limited by the statutory pain and suffering cap.11
8 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or
proffer) must still be approved by a special master, such determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases,
these determinations nevertheless “provide some evidence of the kinds of awards received overall in
comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed
upon by the parties and cases in which damages are determined by a special master).
9 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
10 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
11 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr.
Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in
Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A));
see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the
application of the statutory cap before any projected pain and suffering award is reduced to net present
value).
8

Case 1:21-vv-00530-UNJ Document 55 Filed 12/02/24 Page 9 of 12
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who suffered
more significant levels of pain and SIRVAs of longer duration. Most of these petitioners
subjectively rated their pain within the upper half of a ten-point pain scale and sought
treatment of their SIRVAs more immediately, often within 30 days of vaccination. All
experienced moderate to severe limitations in range of motion. MRI imaging showed more
significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In eight cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
VI. Appropriate Compensation for Petitioner’s Pain and Suffering
When performing this analysis, I review the entire record, including all filed medical
records and affidavits and all assertions made by the parties in written documents and
during oral argument. I also 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.
In this case, there is no dispute of the Petitioner’s pain awareness, and the parties
generally agree on what course of treatment Petitioner experienced for her SIRVA.
Petitioner sought treatment for severe pain and range of motion deficits only eight days
after her vaccination. Ex.6 at 491. She received one cortisone injection that provided little
relief. Id. at 491, 493. She continued to treat her SIRVA symptoms consistently, seeking
additional opinions from specialists, prior to having arthroscopic surgery 3.5 months after
her vaccination. See e.g., Ex. 6 at 497, 500, 519; Ex. 8 at 7; Ex. 9 at 61-62. She attended
a total of three physical therapy sessions – one prior to and two after surgery. Ex. 7 at 11-
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12, 16-18. There are documented symptoms of just over six months, although Petitioner
alleged she continues to experience residual pain in her shoulder (which is not
uncommon). Ex. 2 at ¶13. Overall, her course of treatment suggests a serious SIRVA
injury of relatively short duration.
Petitioner argues that her SIRVA was “moderately severe” with immediate severe
pain and range of motion limitations that required “extensive” treatment including surgery.
Br. at 10. Respondent, by contrast, highlights that Petitioner “did not choose to pursue
conservative treatment” and had “some potential overlapping pathologies that likely
contributed to her shoulder pain.” Resp. at 13-14. He further argues that Petitioner’s
failure to seek conservative care, specifically physical therapy, prior to undergoing
surgery is the kind of “unique circumstance” where a petitioner undergoing surgery should
received a lower award of pain and suffering.
To support his argument, Respondent relies primarily on Shelton v. Secretary of
Health and Human Services, No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May
21, 2021) and Hunt v. Secretary of Health and Human Services, No. 19-1003V, 2022 WL
2826662f (Fed. Cl. Spec. Mstr. June 16, 2022),12 in which I awarded $97,500 and $95,000
in pain. Resp. at 13. But I have consistently deemed these decisions outliers for the
purpose of calculating pain and suffering. In Shelton, I found that a lower award was
warranted due to that petitioner’s lengthy delays in seeking treatment for her SIRVA,
indicating a less severe injury. Shelton, 2021 WL 2550093 at *7. In Hunt, the petitioner
experienced periods of little-to-no pain throughout her treatment. Hunt, 2022 WL 2826662
at *8-10. Neither of these conditions are present in this case. Ms. Cord sought treatment
within 8 days of her vaccination, treated consistently, and did not report any significant
relief of pain until after her surgery.
I also do not find that Petitioner’s choice to forego physical therapy constitutes the
kind of unique circumstance that justifies a lower pain and suffering award as in Shelton
or Hunt. Although it is true that Petitioner sought alternative opinions from four orthopedic
surgeons, only two of them recommended physical therapy,13 and one of those indicated
that if it was not helpful, surgery may be necessary. See Ex. 4 at 5; Ex. 6 at 502. The
other two surgeons recommended proceeding directly to surgery, with one of them
recommending urgent surgery due to his suspicion of an infection. See Ex. 5 at 15-16;
Ex. 6 at 497. There is no evidence in the record suggesting that Petitioner could or would
have avoided surgery if she has first tried physical therapy or other conservative
12 Respondent cited nine other cases with awards ranging from $65,000 to $85,000 in his brief, however,
none of those cases involved petitioners who had surgical intervention and thus, are less helpful to my
analysis here.
13 An orthopedic physician’s assistant also recommended physical therapy, however, that recommendation
was made prior to Petitioner’s MRI which revealed significant pathology. See Ex. 4 at 491; Ex. 6 at 496.
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treatment. Further, there is no requirement in the Vaccine Program for petitioners to
pursue any particular treatment or treatments in any recommended order. However,
Petitioner’s treatment course, including the number of physical therapy treatments she
had, remains relevant to the damages determination and is useful in comparing to
similarly situated petitioners in prior SIRVA cases. The fact that Petitioner did not require
more physical therapy after her surgery to recover is an objective indicator of her pain
and suffering.
At the same time, and although the cases cited by Petitioner are better
comparables, they too are not completely on all fours with this case. In each, the relevant
petitioner had longer durations of symptoms, plus more physical therapy and other
treatments than did Ms. Cord.
I find Petitioner’s situation to be most similar to the Petitioner in Weed v. Sec’y of
Health & Human Servs., No. 19-1684V, 2021 WL 1711800 (Fed. Cl. Spec. Mstr. Mar. 30,
2021) in which I awarded $105,000.00 in pain and suffering. The Weed petitioner sought
treatment one week after vaccination, reported severe pain, and had surgery within two
months. Id. at *3-4. She had nine physical therapy treatments after her surgery (and none
before), made a strong recovery that allowed her to return to gardening and swimming,
and concluded her treatment in six months. Id. While Ms. Cord had fewer physical therapy
treatments, she experienced more severely limited range of motion, required additional
testing from infectious disease and rheumatology specialists to rule out other conditions,
and did not experience a complete recovery, reporting only 40% improvement near the
end of her treatment which supports a slightly higher award.
Overall, considering the arguments presented by both parties at the hearing, a
review of the cited cases, and based on the record as a whole, I find that $115,000.00 in
compensation for past pain and suffering (slightly higher than the award in Weed) is
reasonable and appropriate in this case.
Conclusion
In light of all of the above, the I award Petitioner a lump sum payment of
$115,000.00, for her pain and suffering in the form of a check payable to Petitioner,
Vivien Cord. This amount represents compensation for all damages that would be
available under Section 15(a) of the Vaccine Act. Id.
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The Clerk of Court is directed to enter judgment in accordance with this Decision.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
14 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12