VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00647
Package ID: USCOURTS-cofc-1_21-vv-00647
Petitioner: Marie Foster
Filed: 2021-01-12
Decided: 2024-03-12
Vaccine: influenza
Vaccination date: 2019-11-12
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 60875

AI-assisted case summary:
Marie Foster, an adult, received an influenza vaccine on November 12, 2019. Within 27 days, she developed left shoulder pain that worsened over time, diagnosed as shoulder injury related to vaccine administration (SIRVA). She sought treatment including a steroid injection and physical therapy, reporting significant pain initially that improved over several months. Her physical therapy concluded with her being without pain and having regained significant range of motion, though she noted fear of pain with certain activities like coaching volleyball. Respondent conceded entitlement to compensation, acknowledging no prior shoulder issues, onset within 48 hours, localized pain, and no other explanatory conditions. The case proceeded to a damages decision. The court awarded Marie Foster $60,875.02, comprising $60,000.00 for pain and suffering and $875.02 for past unreimbursed medical expenses. Her claim for lost wages was denied as too speculative, as she did not sufficiently prove that her injury prevented her from coaching volleyball or that she would have earned wages but for the injury, also noting the potential impact of the COVID-19 pandemic. The injury was classified as a Table injury, and the compensation was awarded based on the severity and duration of her symptoms, considering prior SIRVA cases.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00647-0
Date issued/filed: 2022-08-23
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/19/2022) regarding 24 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
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Case 1:21-vv-00647-UNJ Document 27 Filed 08/23/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0647V
UNPUBLISHED
MARIE FOSTER, Chief Special Master Corcoran
Petitioner, Filed: July 19, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
RULING ON ENTITLEMENT1
On January 12, 2021, Marie Foster 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 left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine she received on November
12, 2019. Petition at 1. Petitioner further alleges that her vaccine-related injury has lasted
longer than six months. Petition at ¶7. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On July 18, 2022, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:21-vv-00647-UNJ Document 27 Filed 08/23/22 Page 2 of 2
Specifically, Respondent states that “Petitioner’s records show that she had no history of
left shoulder pain or dysfunction, that the onset of left shoulder pain occurred within forty-
eight hours of vaccination, that the pain was limited to her left shoulder, and that there
were no other conditions or abnormalities identified that would explain her post-
vaccination symptoms.” Id. at 4. Respondent further agrees that Petitioner “received the
flu vaccination in the United States, and that she has satisfied the statutory severity
requirement by suffering the residual effects or complications of her injury for more than
six months after vaccine administration.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00647-1
Date issued/filed: 2024-03-12
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 02/06/2024) regarding 40 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0647V
MARIE FOSTER, Chief Special Master Corcoran
Petitioner, Filed: February 6, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On January 12, 2021, Marie Foster 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 from a shoulder injury related to
vaccine administration (“SIRVA”) following an influenza vaccine she received on
November 12, 2019. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to compensation in the amount of $60,875.02, representing
$60,000.00 for actual pain and suffering, plus $875.02 for past unreimbursed expenses.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 2 of 11
I. Relevant Procedural History
Approximately 18 months after this case was initiated, Respondent filed his Rule
4(c) report on July 18, 2022, conceding that Petitioner was entitled to compensation. ECF
No. 23. A ruling on entitlement was issued on July 19, 2022. ECF No. 24. After a period
of negotiation, the parties reached an impasse in their damages discussions in January
2023. ECF No. 32. The parties accordingly filed briefs setting forth their respective
positions on the disputed pain and suffering. ECF Nos. 33 (“Br. on P&S”), 34 (“Resp. on
P&S”). Later, each party filed a second brief addressing Petitioner’s out-of-pocket
expense and lost wages claims. ECF Nos. 38 (“Br. on Wages”), 39 (“Resp. on Wages”).
I subsequently proposed that the parties be given the opportunity to argue their positions
at a motions hearing, at which time I would decide the disputed damages issues. That
hearing was held on January 29, 2024,3 and the case is now ripe for a determination.
II. Relevant Facts
Petitioner’s Medical History
A complete recitation of the facts can be found in the Petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) report.
Petitioner received a flu vaccine in her left arm on November 12, 2019. Ex. 1 at 2.
At the time of her vaccination, she was a very active mother of four children, regularly
playing and coaching volleyball, training horses (as a profession), fishing, hiking, hunting,
playing basketball, and doing yoga. See Ex. 6 at 71.
On December 9, 2019 (27 days post-vaccination), Petitioner visited an orthopedic
clinic with complaints of left shoulder pain that began after her flu shot and continually
worsened. Ex. 5 at 12. She reported pain of 6/10. Id. On exam, Petitioner had tenderness
to palpation, full strength, some guarding with ROM, and a positive impingement testing.
Id. at 13. X-rays were normal. Id. She received a steroid injection and was referred to
physical therapy. Id. at 12-13.
Petitioner returned to the orthopedic clinic on January 3, 2020. Ex. 5 at 9. She
reported that her symptoms had not improved with the steroid injection and reported
increased pain at 9/10. Id. On exam, Petitioner had limited range of motion in both
3 At the end of the hearing held on January 29, 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-00647-UNJ Document 41 Filed 03/12/24 Page 3 of 11
abduction and forward flexion. Id. She was diagnosed with acute bursitis secondary to
influenza vaccination, prescribed Meloxicam, and referred, again, to physical therapy. Id.
Petitioner began a course of physical therapy on February 24, 2020. Ex. 6 at 71-
74. She reported that her flu shot had been painful and that the “pain didn’t stop since
that moment.” Id. at 71. She described her pain as “constant but dull” at 2/10, and difficulty
with reaching back to reach her pocket, tucking her shirt into her pants in the back,
sleeping on her shoulder, and picking her baby up off the floor. Id. Petitioner had a total
of 14 physical therapy sessions between February 24 and July 9, 2020. By her 8th session,
she was “without complaints of pain.” Id. at 34. Upon discharge, Petitioner had an 11%
impaired function rating, had regained significant range of motion, had full strength, and
had met all of her goals except for one. Id. at 5-6. For the goal of returning to full work
duties as a horse trainer and volleyball coach – the physical therapist noted: “Pt returned
to horse training but not coaching volleyball due more to ‘fear of pain.’” Id. at 6. She was
able to perform her duties as a horse trainer, pick up her infant son without pain, and
perform ADLs. Id. The progress summary stated that Petitioner was unable “to do yoga
or return to coaching volleyball due to the increased load with these activities.” Id.
There are no additional medical records.
Petitioner’s Statements
Petitioner filed an “impact statement” as Exhibit A to her memorandum in support
of her pain and suffering request. ECF No. 33. She described her difficulty in caring for
her infant son, and how she felt “robbed of the experiences she would have had with her
last-born son.” She described “sorrow, anger, regret, and helplessness.” She also
described lack of sleep and pain that made her cry from her initial physical therapy
sessions. She said she had to miss a lot of work at what used to be her seasonal job
coaching volleyball – which caused distress and caused her to regress in position (to
assistant vs. supervisor). She notes that covid caused a “temporary pause on her road to
recovery.”
Petitioner also set forth her ongoing symptoms – including weakness and
moderate pain on days she does “too much.” She notes that she had not yet gone back
to volleyball and claims she would have progressed to a full-time coach but for her injury.
She claims the loss of this income caused her medical bills to go to collections and her
credit to be ruined. She stated that she cannot play volleyball, even recreationally, without
“complete fear of pain, numbness, and deep fear of shoulder surgery.”
3

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 4 of 11
III. The Parties’ Arguments
a. Petitioner
Ms. Foster seeks a total award in the total amount of $93,495.39, consisting of
$80,000.00 as compensation for her pain and suffering, plus $875.024 for past
unreimbursed medical expenses, and $12,620.37 in lost wages. Br. on Wages at 1.
Petitioner argues that her SIRVA injury was “moderate to severe,” causing high
levels of pain and requiring a cortisone injection and substantial physical therapy. Br. on
P&S at 5. Further, she highlights the impact of her injury on her personal and professional
life, including interfering with her ability to care of her youngest son, who was an infant at
the time of her treatment, and destroying her ability to coach and play volleyball. Id. at 6.
Petitioner also argues that she lost coaching wages during the 2019-20 volleyball
season due to her SIRVA injury, and seeks reimbursement for $12,620.37 in lost wages.
Br. on Wages at 2-3. She claims she was “unable to keep up with the demands of [her]
position” and only coached for one team due to her “debilitating shoulder pain.” Id.
During the hearing and in her brief, Petitioner discussed prior SIRVA cases that
involved injured claimants with similar fact patterns, and thus argued that an award of
$80,000.00 in pain and suffering was reasonable and appropriate given that her
circumstances were comparable. Br. on P&S at 4-6.
b. Respondent
Respondent argues that a pain and suffering award of $52,500.00 is appropriate,
considering that Ms. Foster underwent an “entirely conservative” treatment course. Resp.
on P&S at 6. He highlights that Petitioner received only one prescription medication, one
cortisone injection, and treatment with physical therapy over an eight-month period. Id.
Respondent opposes an award of lost wages to Petitioner. Resp. on Wages at 7.
He argues first that the Covid-19 Pandemic “likely would have” interrupted the volleyball
season in 2020. Id. at 7. Further, Respondent further argues that Petitioner’s medical
records suggest that her decision not to return to coaching was based on her fear, rather
than medical necessity. Id. at 8.
4 Petitioner sought a higher amount in her brief, but the parties reached an agreement on the amount of
out-of-pocket expenses to be awarded at the hearing on January 29, 2024.
4

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 5 of 11
During the hearing and in his brief, Respondent discussed prior SIRVA cases that
involved injured claimants with similar fact patterns, and thus argued that an award of
$52,500.00 in pain and suffering was reasonable and appropriate. Resp. on P&S at 9-11.
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)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of
5 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.
5

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 6 of 11
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by 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.
I. Prior SIRVA Compensation Within SPU6
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2024, 3,696 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 3,588 of these cases, with the remaining
108 cases dismissed.
2,075 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that petitioner was entitled to compensation (as opposed to an informal settlement or
concession).7 In only 200 of these cases, however, was the amount of damages also
6 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.
7 The remaining 1,513 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.
6

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 7 of 11
determined by a special master in a reasoned decision.8 As I have previously stated, the
written decisions setting forth such determinations, prepared by neutral judicial officers
(the special masters themselves), provide the most reliable precedent setting forth what
similarly-situated claimants should also receive.9
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated10
Decisions by Damages Damages Agreement
Special Master
Total Cases 200 1,846 29 1,513
Lowest $40,757.91 $10,000.00 $45,000.00 $2,500.00
1st Quartile $70,000.00 $61,338.13 $90,000.00 $36,000.00
Median $88,974.23 $81,049.85 $130,000.00 $53,500.00
3rd Quartile $125,007.45 $110,000.00 $162,500.00 $80,000.00
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 200 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$40,000.00 to $210,000.00, with $85,000.00 as the median amount. Only nine of these
cases involved an award for future pain and suffering, with yearly awards ranging from
$250.00 to $1,500.00.11
8 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (1,846 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.
9 Of course, even though any such informally-resolved case must still be approved by a special master,
these determinations do not provide the same judicial guidance or insight obtained from a reasoned
decision. But given the aggregate number of such cases, these determinations nevertheless “provide some
evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & 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).
10 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
11 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).
7

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 8 of 11
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.
V. Appropriate Compensation in this SIRVA Case
a. Awareness of Suffering
Awareness of suffering is not typically a disputed issue in cases involving SIRVA
– and it does not appear to be herein either. Thus, based on the circumstances of this
case, I find that Ms. Foster had full awareness of her suffering, and proceed to analyze
the severity and duration of the injury.
b. Severity and Duration of Pain and Suffering
With respect to the severity and duration of the injury, Petitioner’s medical records
reveal a fairly mild SIRVA injury requiring limited treatment. Petitioner sought treatment
for her pain 27 days after her vaccination, following up with her orthopedist only once with
8

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 9 of 11
continued complaints. Ex. 5 at 9, 12. She received a prescription for meloxicam, had one
steroid injection, and completed 14 physical therapy treatments, after which she had met
the vast majority of her treatment goals. Id.; Ex. 6 at 5-74. For the first two months of her
injury, Petitioner reported significant pain, up to 9/10. Ex. 5 at 5, 12. In addition to her
course of treatment, I consider the impact of an injury on one’s employment and on the
enjoyment of daily life activities in awarding an amount for pain and suffering. Ms. Foster
described her difficulty in caring for her infant son, including being unable to pick him up
off the floor. See Ex. 6 at 71. She also described the impact her injury had on her athletic
activities, including yoga and volleyball, which she had previously enjoyed. See id. at 6;
Ex. A.
After reviewing the record in this case and considering the parties’ arguments
during the hearing, I find that this is a fairly mild SIRVA injury – and thus Petitioner’s
demand for pain and suffering is a bit high. At best, she references Dagen v. Sec’y of
Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6,
2019), which is very factually similar to Ms. Foster’s case. Br. on P&S at 5. That petitioner
sought treatment within six weeks of vaccination, was prescribed prednisone, had one
steroid injection, participated in nine physical therapy treatments, and was awarded
$65,000 in pain and suffering. Id. at *2, 10. The degree of factual similarity between the
course of the Dagen petitioner and Ms. Foster’s course suggest an award of pain and
suffering in the same range.
. Although Respondent cited several comparable prior SIRVA cases to support his
proposed lower award, those cases generally involved petitioners who delayed initial
treatment, which is a strong indicator of lower levels of pain and suffering, at least at the
beginning of an injury. See Rayborn v. Sec’y of Health & Human Servs., No. 18-0226V,
2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug. 14, 2020); Ramos v. Sec’y of Health &
Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021),
Couch v. Sec’y of Health & Human Servs., No. 20-1246V, 2022 WL 4453921 (Fed. Cl.
Spec. Mstr. Aug. 24, 2022), and Merwitz v. Sec’y of Health & Human Servs., No. 20-
1141V, 2022 WL 17820768 (Fed. Cl. Spec. Mstr. Nov. 14, 2022). But there was no such
delay in this case, rendering these comparables of lesser utility.
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 $60,000.00 in
compensation for past pain and suffering (slightly lower than the outcome in Dagen) is
reasonable and appropriate in this case.
9

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c. Award for Past Unreimbursed Expenses
The parties have agreed that Petitioner is entitled to the sum of $875.02 in past
unreimbursed expenses, and therefore Petitioner is awarded this sum without adjustment.
d. Award for Lost Wages
Ms. Foster requests an award of $12,620.37 for lost wages during the 2019-20
volleyball season. Br. on Wages at 1. She relies primarily on the record of her final
physical therapy treatment record, in which the physical therapist noted that she had an
“inability to do yoga or return to coaching volleyball due to the increased load with these
activities.” Id. at 3; Ex. 6 at 6. She explained that prior to her injury she coached volleyball
for “up to five (5) teams in one season,” but that she served as only an “assistant coach
for one (1) team for the 2019-2020 volleyball season,” due to her injury. Br. on Wages at
3.
Respondent notes that the physical therapy record is “internally inconsistent,” in
that the language cited by Petitioner is contradicted by other notes stating that Petitioner
“had made excellent progress with recovery of ROM” and that Petitioner had “no pain
during objective testing of her left shoulder.” Resp. on Wages at 8. He further highlights
that the record also states that “Petitioner had stopped coaching volleyball due to fear of
pain, not due to physical inability to perform her coaching duties.” Id. Finally, Respondent
argues that the Covid-19 Pandemic likely impacted the relevant season (as perhaps few
to no games were played in this timeframe, when numerous group activities, like sports
events, were curtailed). Id. at 7-8.
While Petitioner can point to a medical record that suggests she could not return
to coaching volleyball, she has not provided preponderant evidence that her SIRVA injury
actually prevented her from doing so – or was the predominant reason she did not receive
wages for coaching in the relevant time period. Primarily, Petitioner has not shown that in
fact she would have received coaching wages but for the SIRVA – that games were
played, and that she could not coach regardless. She also has not provided any evidence
from her employer, or any other person or entity, to bulwark her wage demands for the
relevant time period. Accordingly, the lost wage claim is too speculative, and Petitioner’s
request for reimbursement for her lost wages is denied.
10

Case 1:21-vv-00647-UNJ Document 41 Filed 03/12/24 Page 11 of 11
CONCLUSION
In light of all of the above, the I award Petitioner a lump sum payment of
$60,875.02, (representing $60,000.00 for Petitioner’s actual pain and suffering, plus
$875.02 for unreimbursable medical expenses) in the form of a check payable to
Petitioner, Marie Foster. This amount represents compensation for all damages that
would be available under Section 15(a) of the Vaccine Act. Id.
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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.
11