VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00850
Package ID: USCOURTS-cofc-1_21-vv-00850
Petitioner: Ivan Boyd
Filed: 2021-02-03
Decided: 2024-11-08
Vaccine: influenza
Vaccination date: 2019-12-12
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 90000

AI-assisted case summary:
Ivan Boyd, an adult inmate, received an influenza vaccine on December 12, 2019. Within hours, he developed severe pain and burning in his right arm, diagnosed as Shoulder Injury Related to Vaccine Administration (SIRVA). The injury caused significant pain, limited range of motion, and led to two falls from his bunk. He underwent extensive treatment over nearly four years, including a manipulation under anesthesia, four steroid injections, multiple physical therapy sessions, and various diagnostic tests. Respondent conceded entitlement to compensation, agreeing that Mr. Boyd's injury met the Table criteria for SIRVA. The parties could not agree on damages, leading to a decision by the Special Master. The court awarded Mr. Boyd $90,000.00 for pain and suffering. His claim for past lost wages was denied due to insufficient evidence, as the documentation of his employment status prior to the injury was unclear and suggested termination before the vaccination.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00850-0
Date issued/filed: 2023-06-23
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/23/2023) regarding 35 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:21-vv-00850-UNJ Document 40 Filed 06/23/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0850V
UNPUBLISHED
IVAN BOYD, Chief Special Master Corcoran
Petitioner, Filed: May 23, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 3, 2021, Ivan Boyd 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 that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine received on December 12,
2019. Petition at 1. Petitioner further alleges the vaccine was administered in the United
States, he suffered the residual effects of his condition for more than six months, and no
lawsuits have been filed, or settlements or awards accepted by anyone, including
Petitioner, due to his vaccine-related injury. Petition at ¶¶ 5-6; Ex. 7 at ¶ 8; Ex. 2 at 750.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished Ruling contains a reasoned explanation for the action 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-00850-UNJ Document 40 Filed 06/23/23 Page 2 of 2
On May 22, 2023, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Specifically, Respondent agrees that “petitioner had no apparent 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; he more likely than not
suffered the onset of pain within forty-eight hours of vaccine administration; his pain and
reduced range of motion were limited to the shoulder in which the intramuscular vaccine
was administered; and there is no other condition or abnormality present that would
explain petitioner’s symptoms.” Id. at 7. Respondent further agrees that “the records show
that the case was timely filed, that the vaccine was received in the United States, and that
petitioner satisfies the statutory severity requirement by suffering the residual effects or
complications of his injury for more than six months after vaccine administration.” Id.
Respondent also notes that Petitioner has averred that he has not filed a civil action or
received compensation in the form of an award or civil settlement for his injury. Id. at 7-8.
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-00850-1
Date issued/filed: 2024-11-08
Pages: 20
Docket text: PUBLIC DECISION (Originally filed: 10/08/2024) regarding 63 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:21-vv-00850-UNJ Document 64 Filed 11/08/24 Page 1 of 20
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0850V
IVAN BOYD,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 8, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 3, 2021, Ivan Boyd 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 that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on December
12, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters (the “SPU”), and although entitlement was conceded, the
parties could not agree on the proper amount of damages to be awarded.
For the reasons set forth below, I find that Petitioner is entitled to a damages award
of $90,000.00 for actual pain and suffering.
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-00850-UNJ Document 64 Filed 11/08/24 Page 2 of 20
I. Relevant Procedural History
Over a year after the case was activated, Respondent conceded that Petitioner
was entitled to compensation, and the parties began negotiating damages (ECF Nos. 34-
36). However, they soon reached an impasse (ECF No. 48). On October 24, 2023,
Petitioner filed a memorandum in support of damages (ECF No. 54). Respondent reacted,
and Petitioner replied (ECF Nos. 57, 62). The matter of damages is now ripe for
resolution.
II. Relevant Medical History
On December 12, 2019, Petitioner (an inmate at Redgranite Correctional Facility
in Wisconsin) received a flu vaccine in his right deltoid. Ex. 1 at 1; Ex. 7. Later that day,
he was seen by a nurse complaining of right arm pain.3 Ex. 2 at 802. He described a
“burning pain down to my elbow” since his vaccination, and rated it as five out of ten. Id.
at 803. On examination, both shoulders had normal range of motion (“ROM”). Id. at 806.
Petitioner was reassured that muscle soreness after an intramuscular injection was
normal and should resolve within a day or two, and that he could massage the area or
use cool compresses for pain relief.4 Id.
The next day (December 13, 2019), Petitioner submitted a Health Service Request
form (“HSR”).5 Ex. 2 at 3052. He explained that since his vaccination, his right arm had
burned and ached at the injection site, and hurt when he extended it. Id. A nurse
responded that soreness lasting up to a week was normal. Id. Two days later (December
15th), Petitioner submitted another HSR, this time addressed to the manager of the health
3 This record documents left arm pain and states that Petitioner’s pain was related to a flu vaccination in
his left arm. Ex. 2 at 802, 806. The record further states that Petitioner had “left arm inside his shirt and is
holding it with left sleeve of shirt hanging free.” Id. at 806. All other treatment records, however, indicate
that Petitioner reported right arm pain from a flu vaccine in his right arm, and Respondent has agreed that
the references to Petitioner’s left arm in this record appear to be an error. Respondent’s Response at *2
n.1 (ECF No. 57).
4 Petitioner states that over-the-counter pain medication was dispensed on that date, citing Ex. 2 at 3042.
The page Petitioner cites is a medication request dated December 28, 2019, not December 12th – but this
small discrepancy does not bear on damages calculations. Ex. 2 at 3042.
5 Petitioner states that the December 13th HSR is located at Ex. 2 at 3040-41 (Mem. at *2); however, it is
actually in Ex. 2 at 3052. Petitioner’s damages memorandum has several other citations that are similarly
slightly incorrect. Although Exhibit 2 contains over 3,000 pages spread out over eight volumes, with no
exhibit list or docket text detailing the pages included within each volume, I have attempted to locate records
cited by Petitioner even when the citations were inaccurate. However, in some cases the information in
Petitioner’s brief was not sufficiently detailed to determine what document he referred to. For instance,
Petitioner states that after January 7, 2020 he “continued to report his right arm pain to the HSU,” citing Ex.
2 at 1196-1197. Mem. at *4. Exhibit 2 at 1196-1197 contains lab results that are not related to Petitioner’s
arm pain, and it is not clear what records Petitioner intended to cite.
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Case 1:21-vv-00850-UNJ Document 64 Filed 11/08/24 Page 3 of 20
services unit. Id. at 3051. He stated that since his December 12th vaccination he had
been experiencing “severe pain and burning in my right arm,” and inquired if pain
continuing up to a week was normal. Id. A different nurse responded that stiffness and an
achy feeling for a short time was normal. Id.
On December 16, 2019, Petitioner was seen for a nurse sick call for vaccine-
related right arm pain that he rated as seven out of ten. Ex. 2 at 799, 800. On examination,
his right shoulder now displayed a slight decrease in ROM and limited strength. Id. at
801-02. He was given pain medication and advised to try warm compresses. Id. at 802.
Two days later (December 18, 2019), Petitioner submitted an HSR stating that he
continued to suffer “extreme pain and burning in my right arm and hand,” and now had
limited movement in his right arm and hand, causing problems getting into his upper bunk.
Id. at 3049.
Petitioner was seen by a nurse on December 19, 2019, complaining of pain he
rated as nine out of ten. Ex. 2 at 798. He described a radiating and shooting pain from his
shoulder to his elbow. Id. at 799. He was given a sling and encouraged to use Tylenol
more often. Id. That night, he lost his grip and fell from his top bunk while trying to get into
bed. Id. at 797, 1078. The nurse who responded found Petitioner unable to move his head
or back, and he complained of back and neck pain that he rated as ten out of ten. Id. at
797. The nurse placed him in a cervical collar and called an ambulance. Id. He was
evaluated in the emergency department and discharged back to Redgranite Correctional
Institution. Id. at 1078-1127.
A week later (December 26, 2019), Petitioner submitted an HSR stating that due
to his loss of right arm mobility he had fallen again, this time while exiting his top bunk,
and hurt his right knee. Ex. 2 at 3044. He saw a nurse the next day for right arm numbness
and pain following his vaccination. Id. at 729. He was advised that he may have a muscle
injury from the vaccination or his fall, and that it would need time to heal. Id. at 730. On
January 2, 2020, Petitioner was seen at the health services unit for a follow up on his
knee and shoulder issues, and was informed that x-rays of both taken that morning were
normal. Ex. 2 at 845, 1214.
On January 7, 2020, Petitioner saw a nurse for right arm, hand, and knee pain and
weakness. Ex. 2 at 788. He complained of a shooting pain in his right arm and rated his
arm pain as eight out of ten “when it occurs.” Id. at 788, 790. He continued to complain of
right arm pain and other concerns in January and February 2020. Id. at 3032-37.
On February 26, 2020, Petitioner underwent a physical therapy (“PT”) evaluation
for right arm weakness after his vaccination and other health concerns. Ex. 2 at 1076.
Over the past week, his pain had ranged from zero to seven out of ten. Id. He was noted
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Case 1:21-vv-00850-UNJ Document 64 Filed 11/08/24 Page 4 of 20
to have full active ROM in his right arm and good strength except for minor wrist flexor
weakness and grip weakness. Id. at 1077. A treatment plan was made for Petitioner to
attend PT twice a week for two weeks. Id. He attended two more sessions, on February
28 and March 2, 2020, and was discharged with instructions to continue exercises
independently. Id. at 1073-76. At the March 2nd session, the therapist noted that
Petitioner “[s]till require[d] verbal cues to do ROM and postural exercises correctly.
Compliance issues.” Id. at 1074.
Petitioner returned to PT a month and a half later (April 15, 2020). Ex. 2 at 1072.
He complained of increased pain, stiffness, and weakness in his right shoulder. Id. He
reported compliance with his home exercise plan, but the therapist noted a history of not
knowing his exercises at previous return visits, and noted that Petitioner “only signed in
one time of 8 scheduled appoint[ment]s to use PT room for hand wrist exercises as
instructed from 3/2/20 to 4/5/20.” Id. On examination, Petitioner’s right shoulder active
ROM was now 90 degrees in flexion, 80 degrees in abduction, 56 degrees in external
rotation, and 50 degrees in internal rotation.6 Id. at 1073. The therapist noted that
Petitioner had continued deltoid pain and had “developed capsular restrictions R
shoulder,” after having had full ROM in March, and this was “likely due to noncompliance”
with his home exercise plan. Id. The therapist planned to progress with light strengthening
and continue PT twice a week if Petitioner was compliant with ROM and postural
exercises. Id.
Petitioner returned to PT five days later, on April 20, 2020. Ex. 2 at 1071. He now
had full ROM in flexion and abduction, and the therapist noted he had “[p]oor
awareness/compliance” with his home exercise plan and “could only remember 3 of 9
exercises given last week.” Id. The therapist also documented “[e]vidence of symptom
magnifications with inconsistency with objective ROM of R shoulder” – in other words, the
therapist appears to have thought Petitioner had made his ROM appear much more
restricted than it actually was at his appointment five days earlier Id. Two days later (April
22nd), a PT record documented Petitioner as a “NO show” after he arrived 15 minutes
late. Id. at 1070. A corrections officer overheard the therapist and Petitioner discussing
why Petitioner was late and told Petitioner to leave “due to disrespect.” Id. Due to
Petitioner’s history of noncompliance “and no notable ROM or strength deficits R shoulder
as he was displaying on 4/15/20,” Petitioner was discharged from PT. Id.
On May 26, 2020, Petitioner submitted an HSR requesting to be seen by an outside
specialist for possible SIRVA. Ex. 2 at 2997. He was seen by a nurse on June 23, 2020
6 Normal shoulder ROM for adults ranges from 165 to 180 degrees in flexion, 170 to 180 degrees in
abduction, 90 to 100 degrees in external rotation, and 70 to 90 degrees in internal rotation. Cynthia C.
Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 84, 88 (F. A.
Davis Co., 5th ed. 2016).
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Case 1:21-vv-00850-UNJ Document 64 Filed 11/08/24 Page 5 of 20
for right shoulder pain and weakness. Id. at 748. He currently had no pain, with slightly
limited ROM and right arm weakness compared to his left arm. Id. at 750. His right
shoulder was “unremarkable,” and he was encouraged to take prescribed medications for
pain. Id. Two weeks later (July 7, 2020), Petitioner complained of neck, back, and
shoulder pain, although he denied any worsening since his last evaluation. Id. at 724. He
was advised that offsite visits for non-acute conditions were being “scaled way back” due
to the COVID-19 Pandemic. Id.
On September 16, 2020, Petitioner submitted an HSR to follow up on his right
shoulder pain and ROM concerns. Ex. 2 at 2965. Eight days later, he submitted another
HSR relating to his shoulder pain and ROM, complaining that it was affecting his daily life
and requesting to see an orthopedist or specialist as soon as possible. Id. at 2962. He
was advised to continue with his plan of care and discuss it with the provider at his
appointment tentatively scheduled in November 2020. Id.
Petitioner submitted an HSR on October 12, 2020, complaining of “extreme pain
and mobility issues” with his right arm and shoulder. Ex. 2 at 2957, 2958. He was advised
to discuss it at his nurse appointment tentatively scheduled for the following week. Id.
Petitioner saw a nurse practitioner (“NP”) on November 23, 2020, for right shoulder
pain and to follow up on his diabetes. Ex. 2 at 721. On examination, he had limited ROM
in his right shoulder with pain. Id. at 722. He was assessed with pain of the right shoulder
joint. Id. The NP noted that Petitioner could not have an MRI due to metal in his body. Id.
She ordered an orthopedic referral. Id. Petitioner submitted HSRs asking about the
orthopedic referral on December 7 and 17, 2020, and was told it had been ordered but
not yet scheduled. Id. at 2946-47. In February 2021, he was told an orthopedist
appointment had been scheduled. Id. at 2938.
On April 7, 2021, Petitioner saw Dr. Kira Labby for right shoulder pain since his flu
vaccination in late 2019. Ex. 16 at 1. Initially his shoulder was stiff and weak, but now his
main complaint was decreased ROM to about 90 degrees each in abduction and forward
flexion. Id. He is right handed and some daily activities such as brushing teeth were
painful and difficult. Id. Dr. Labby administered a subacromial steroid injection. Id.
Just over a month later (May 13, 2021), Petitioner submitted an HSR stating that
he continued to have pain and mobility after the steroid injection, and requesting a referral
to orthopedist Dr. Nelson. Ex. 9 at 1325. He was advised to follow his plan of care for
bursitis, and advised that he had an appointment tentatively scheduled for a week later.
Id.
Petitioner was seen by a NP on May 20, 2021 for his ongoing right shoulder pain.
Ex. 9 at 17. On examination, he had limited right shoulder ROM with pain. Id. at 18. He
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was referred for an orthopedist evaluation due to failure of conservative treatment. Id. He
submitted a HSR on July 21, 2021, asking if he was scheduled to see an orthopedist. Id.
at 1311. He was told the orthopedist appointment was being worked on. Id. On August
17, 2021, he underwent a right shoulder ultrasound. Id. at 235. The ultrasound showed
mild arthrosis and mild subacromial/subdeltoid bursitis, with an intact rotator cuff. Id.
Petitioner had a telemedicine appointment with orthopedist Dr. Eric Nelson on
August 23, 2021. Ex. 9 at 230. Petitioner reported pain and limited motion in his right
shoulder “for about 2 years” following a flu vaccination. Id. Dr. Nelson noted that Petitioner
had diabetes, which is a known risk factor for frozen shoulder. Id. Petitioner’s shoulder
ultrasound showed some evidence of bursitis. Id. On examination (conducted remotely
via audiovisual telemedicine), Petitioner’s right shoulder active ROM in forward flexion
and abduction were both about 90 degrees. Id. at 231. Dr. Nelson diagnosed Petitioner
with chronic frozen shoulder that had failed conservative treatment, and recommended a
manipulation under anesthesia (“MUA”) followed by more PT. Id.
Petitioner underwent a right shoulder MUA on October 8, 2021. Ex. 9 at 222. After
the nerve block was administered, Dr. Nelson was “able to fully forward flex the shoulder.
There was not a whole lot of stiffness or release of adhesions. A small amount, but his
degree of adhesive capsulitis was not particularly severe.” Id.
Petitioner underwent a PT evaluation five days later (October 13, 2021). Ex. 9 at
210. The record noted that in the February to April 2020 time-period, Petitioner had a
history of “compliance issues, symptom magnification and inconsistencies, and
disrespect in PT session.” Id. At the time of evaluation, Petitioner was in a restricted
housing unit (“RHU”) and in restraints that could not be removed, and thus his ROM could
not be measured. Id. Petitioner was shown exercises and instructed to do them in his cell
three times a day, and the therapist offered to follow up with him the next week at his cell
door to confirm awareness of the exercise program. Id.
Petitioner was seen for another PT session on October 18, 2021. Ex. 2 at 209.
This session was done in the RHU, where the therapist observed him without restraints
through his cell door. Id. Petitioner needed verbal cues for his home exercise program,
leading the therapist to question whether he had been complying with his program. Id. at
210. Petitioner demonstrated “fairly good” active ROM, with mild restrictions. Id. Petitioner
had another PT session the next week (October 25, 2021), again at his cell door. Id. at
208. Petitioner stated he was “committed to doing his HEP 2-3 x daily as instructed,”
although the therapist noted he again needed verbal cues for six out of ten exercises and
questioned his compliance. Id. At this time, Petitioner was discharged “due to RHU
placement,” and instructed to contact the therapist once he was out of the RHU and able
to more fully participate in PT. Id. at 209.
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On November 10, 2021, Petitioner saw Dr. Gilbert Steffanides to follow up on his
right shoulder and other matters. Ex. 9 at 91. His shoulder ROM was not tested due to
restraints. Id. He was assessed with adhesive capsulitis and Dr. Steffanides noted that
he would follow up with Dr. Nelson. Id. Petitioner submitted HSRs on November 22 and
29, 2021 stating that he wanted another cortisone injection. Ex. 9 at 1258, 1261.
Petitioner returned to PT on December 6, 2021. Ex. 9 at 206. He reported pain
levels of two out of ten at best, and five at worst. Id. at 207. On examination, his active
ROM was 140 degrees in flexion, 148 degrees in abduction, 74 degrees in external
rotation, and 70 degrees in internal rotation. Id. The therapist noted “[c]ompliance issues
with HEP [home exercise program],” adding that Petitioner “admits to poor/fair compliance
and verbal cues needed to do correctly or remember exercises today.” Id. There was
“[l]ittle overall change [in] ROM.” Id. Petitioner was assessed with mild rotator cuff
tendinitis with ROM deficits. Id. Petitioner had two additional PT sessions on December
8 and 13, 2021. Id. at 204-206.
On December 13, 2021, Petitioner had a telemedicine appointment with Dr.
Nelson. Ex. 9 at 217. Petitioner thought his ROM had improved, but he was still having
shoulder pain and requested a cortisone injection. Id. He also asked about possible
arthroscopic shoulder surgery. Id. Dr. Nelson had no concerns with Petitioner receiving
another cortisone injection, but did not think there was a reasonable surgical option
because Petitioner’s shoulder was structurally intact. Id. at 217-218. Dr. Nelson noted
that surgery for frozen shoulder does not consistently lead to a satisfactory result,
sometimes leaving permanent stiffness. Id. On the same day, Petitioner submitted an
HSR requesting that Dr. Labby to administer another cortisone injection or that he be
taken to Dr. Nelson for the injection. Id. at 1251.
Petitioner had additional PT sessions on December 15 and 20, 2021. Ex. 9 at 202-
204. At his December 20th session, his pain had improved to zero out of ten at best and
two to three out of ten at worst. Id. at 203. He had improved active ROM (174 degrees in
flexion, 165 degrees in abduction, 94 degrees in external rotation, and 76 degrees in
internal rotation). Id. He was discharged with instructions to continue his home exercise
program to address mild overhead deficits that remained. Id.
Petitioner received a steroid injection in his right shoulder on January 31, 2022.
Ex. 9 at 89. Less than two months later (March 19, 2022), he submitted an HSR, stating
that his right shoulder pain had “returned with a vengeance.” Id. at 1223. He was taking
over the counter pain medications and using cream, and though he may need to see an
orthopedist again. Id. He submitted another HSR nine days later (March 28, 2022), stating
that on March 26th the on call nurse had been contacted due to severe pain, and he now
needed to go to the hospital or be given stronger medication as the pain was
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“unbearable.” Id. at 1220. Petitioner was seen by a nurse the following day for right
shoulder pain that he rated as seven out of ten. Id. at 33, 34. The nurse noted that he was
able to remove his sweatshirt without difficulty, and lift his arm above his head without
grimacing, though he grimaced with palpation of his right shoulder. Id. at 38. An x-ray and
ibuprofen were ordered. Id. A right shoulder x-ray performed on March 31, 2022, was
normal. Id. at 300.
Petitioner saw Dr. Steffanides again on April 6, 2022. Ex. 9 at 86. Petitioner
reported that he was having right shoulder pain again, and it was interfering with his sleep.
Id. at 87. Ibuprofen and Tylenol were not helping much. Id. On examination, his right
shoulder ROM was decreased and painful with motion over his head and behind his back.
Id. Petitioner was given a trial of Medrol and advised to continue ice, heat, ibuprofen, and
Tylenol. Id. at 87-88. The record states that Dr. Steffanides discussed Tramadol with the
pharmacy and decided to try Medrol and other medications first. Id.
The next day (April 7, 2022), Petitioner submitted a HSR addressed to Dr.
Steffanides. Ex. 9 at 1216. Petitioner noted that it was 4 A.M., and that he was in severe
pain and sleep deprived due to pain. Id. He requested pain medication. Id. Petitioner was
seen by a nurse on April 8, 2022, complaining of right shoulder pain at a level of three out
of ten. Id. at 30-31. Medrol had helped a small amount with the pain, but the pain was
worse at night. Id. at 31. Petitioner was upset as he thought Dr. Steffanides was ordering
Tramadol but he had not received it. Id. at 31, 33. Petitioner was advised that his current
plan of care was to continue the Medrol dose pack and other treatment, and that Tramadol
could be considered if that was ineffective. Id. at 33.
On April 13, 2022, Petitioner saw a nurse to follow up on his shoulder pain. Ex. 9
at 26. Medrol had helped with the inflammation, but not the pain. Id. at 26, 29. He rated
his pain as four out of ten. Id. at 27. He reported that in the morning his activities were
limited due to stiffness, but at the present time he had no limitations. Id. at 28. On
examination, his right shoulder had full ROM with abduction, adduction, lifting arms over
head, and reaching behind his back. Id. at 29. His right shoulder was noted to be
unremarkable, with no swelling or bruising and full ROM and strength. Id. The nurse
consulted with Dr. Steffanides, who ordered Celebrex. Id. Petitioner was given a low bunk
temporarily. Id.
Petitioner saw Dr. Steffanides the next month, on May 12, 2022. Ex. 9 at 84.
Petitioner had stopped taking Celebrex after three weeks because it was not helping and
he worried about side effects. Id. at 85. Flexeril helped his nighttime pain, but once he
woke up he could not get back to sleep. Id. He described his pain as worse and constant.
Id. Petitioner requested Tramadol for sleeping at night, but Dr. Steffanides did not think
that was needed. Id. Dr. Steffanides offered a trial of meloxicam which could provide a
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10-25% reduction in pain, but explained that nothing would take all the pain away. Id.
They agreed on a Medrol dose pack, along with home exercises, ice, and heat. Id.
A month later (June 14, 2022), Petitioner returned to Dr. Steffanides to follow up
on his right shoulder pain. Ex. 9 at 82. Petitioner stated that after the last ultrasound and
steroid injection he felt he had torn something, and requested another ultrasound to see
if anything has changed. Id. at 83. He was taking only Tylenol for pain as he did not want
too many steroids or non-steroidal anti-inflammatory medications due to possible liver
issues. Id. Medrol had helped, and a muscle relaxer provided some relief so he could
sleep at night. Id. Dr. Steffanides determined the best course was to await an ultrasound
of Petitioner’s shoulder, possibly with an arthrogram because Petitioner could not have
an MRI, and continued Flexeril for sleep along with Tylenol, ice, and heat. Id. Petitioner
did not want any more PT as he did not feel it had helped, and stated he could not lift his
arm to do the home exercises (although the record noted that as he left, he pushed the
door open with his right hand). Id.
On December 2, 2022, Petitioner “refused to come out” of his cell for a nurse
assessment, requesting instead to go to the emergency room for ongoing shoulder pain.
Ex. 12 at 12. Petitioner was witnessed lying on his back talking, not moaning or groaning
or showing evidence of severe pain. Id.
Petitioner submitted HSRs about his right shoulder pain on December 1, 2022,
and January 8, 2023, respectively. Ex. 12 at 209, 223. He reported severe pain and stated
that over the counter medications were not helping. Id. He saw Dr. Steffanides for his
shoulder and diabetes on January 11, 2023. Id. at 14. He had stopped taking Meloxicam
due to stomach upset. Id. Over the next month Petitioner continued to submit HSRs about
his shoulder pain, requesting to see an offsite orthopedist. Id. at 193-195, 198.
On March 1, 2023, Petitioner saw orthopedist Dr. Molly Day for right shoulder pain
and stiffness since his 2019 vaccination. Ex. 13 at 2. He had received two prior steroid
injections and an MUA that helped “significantly for a short period of time,” but he
continued to struggle with pain and stiffness intermittently. Id. His pain and limited mobility
made activities of daily living “nearly impossible.” Id. He reported a pain level of eight out
of ten. Id. at 4. On examination, his right shoulder ROM was 100 degrees in flexion and
abduction and 30 degrees in external rotation. Id. at 3. He had positive results on the
Hawkins impingement test. Id. Dr. Day assessed that Petitioner’s symptoms were
consistent with adhesive capsulitis, but stated that he did not have any symptoms
consistent with a rotator cuff tear. Id. at 3-4. Dr. Day was sympathetic with his frustration,
but explained that adhesive capsulitis is a self-limiting condition that gets better without
surgery in nearly all cases. Id. at 4. Therefore, she recommended continued non-
operative management. Id. She placed an order for an MRI, deferring to radiology as to
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whether he was a candidate for an MRI. Id. She also ordered a fluoro guided
glenohumeral joint injection and recommended that he work with PT on ROM. Id.
Petitioner underwent a right shoulder MRI on April 21, 2023. Ex. 14 at 2-3. The
MRI showed a shallow partial-thickness tear of the supraspinatus with associated partial
thickness tear of the anterior fibers of the infraspinatus tendon, along with thickening and
increased signal of the supraspinatus tendon suggestive of tendinopathy. Id. Ten days
later (May 1, 2023), Petitioner underwent a fluoroscopically guided glenohumeral joint
steroid injection. Id. at 5-6. Petitioner saw Dr. Steffanides on May 17, 2023, reporting no
complications and decreased pain following his recent steroid injection. Ex. 15 at 1. His
shoulder was noted to have full ROM and full mobility. Id. Petitioner was advised to
continue PT and ROM exercises. Id.
Petitioner had another PT evaluation for his right shoulder on May 24, 2023. Ex.
17 at 26. He reported a constant variable ache in his shoulder joint down into his deltoid
ranging from four to ten out of ten. Id. at 27. On examination, his right shoulder active
ROM was 170 degrees in flexion (compared to 180 on the left), 50 degrees in extension
(compared to 53 on the left), 155 degrees in abduction (compared to 180 on the left), 66
degrees in external rotation (compared to 80 on the left), and 86 degrees in internal
rotation (compared to 75 on the left). Id. at 28. The therapist noted he was “doing very
well given his extensive [history].” Id. He had slightly lower strength ratings on the right
side compared to the left, with pain. Id. Petitioner’s active ROM was nearly within normal
limits, with external rotation and abduction being areas with deficits. Id. He had functional
strength levels as well, but with pain. Id. PT was established to set up a home exercise
program for ROM and strengthening. Id.
Petitioner attended six additional PT sessions between May 31 and July 19, 2023.
Ex 17 at 23-26, Ex. 18 at 16-17, Ex. 19 at 15-16. At his final session on July 19th, he was
found to have full active ROM in his right shoulder and functional strength, with minor
strength deficits, and was discharged from PT. Ex. 19 at 16. He was still reporting pain
ranging from two to six out of ten, with pain on the lower end when resting and the higher
end during or after exercises. Id.
The following month, on August 16, 2023, Petitioner saw orthopedist Dr. Brian
Grogan about his right shoulder pain. Ex. 21 at 9. Petitioner reported that initially he had
significant stiffness, but his ROM had returned and now he continued to have localized
pain without radiation. Id. He had intermittently taken anti-inflammatory medications
without significant relief. Id. His last injection about three months earlier lasted for a couple
of weeks, but did not resolve all of his symptoms. Id. On examination, Petitioner had full
ROM and strength in both shoulders, with painful palpation over the biceps tendon. Id. at
10. He had positive speed’s and Yergason’s tests but negative impingement testing, with
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possible very mild pain with the Hawkins test. Id. Dr. Grogan assessed Petitioner with
right shoulder biceps tendinitis versus impingement and a partial thickness rotator cuff
tear. Id. He thought that Petitioner’s symptoms might be from his biceps tendon rather
than the partial rotator cuff tear, and ordered an interventional radiology injection of
Petitioner’s bicipital groove for both diagnostic and therapeutic purposes. Id. at 11. Dr.
Grogan also provided naproxen and a PT referral. Id. He did not think that a shoulder
arthroscopy would be beneficial without first locating the underlying pathology. Id.
Petitioner saw Dr. Steffanides later that month, on August 28, 2023, to follow up
after his orthopedic consult. Ex. 22 at 9. Dr. Steffanides consulted interventional radiology
and directed Petitioner to continue his home exercises. Id. at 10.
Petitioner submitted a HSR on November 16, 2023, inquiring whether his
orthopedic appointment would take place by the end of the year. Ex. 24 at 60. He was
told that the appointment had been scheduled, but for security reasons he could not be
told whether it would occur by the end of the year. Id.
On December 7, 2023, Petitioner underwent an ultrasound guided right biceps
tendon sheath steroid injection. Ex. 25 at 9. Prior to the procedure, he rated his pain as
4.5 out of ten; immediately after the injection he was pain-free. Id. No further treatment
records have been filed.
III. Declarations
Petitioner has filed two declarations in support of his claim. Exs. 7, 8. He notes that
he received the flu vaccine at the Redgranite Correctional Facility at an event in the gym.
Ex. 7 at ¶ 2. Immediately after the needle was inserted, he felt severe pain that caused
him to wince and look up at the nurse who administered the vaccine. Id. The nurse then
said “Oops, my bad!” Id. As he walked away, his shoulder was burning “as if someone
had held a cigarette lighter against my skin.” Id. He expected the pain to subside with
time, but unfortunately it did not. Id.
Later that day, he continued to feel burning at the injection site along with periodic
“lightning bolt jolts of pain.” Ex. 7 at ¶ 3. At that point, he realized that something was not
right. Id. He was seen at the health unit a few hours later and given over the counter
medication. Id. at ¶ 4. He tossed and turned that night and slept in a chair. Id. The next
day, his shoulder was extremely sore and stiff when he awoke, with “excruciating pain”
when he attempted to raise it. Id.
As the days passed, his condition worsened. Ex. 7 at ¶ 5. When he saw a nurse
on December 19, 2019, he told her he was having difficulty getting into his upper bunk
due to his right shoulder pain and mobility issues. Id. The nurse provided more over the
counter pain medication and a sling. Id. Petitioner’s request for a lower bunk
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accommodation was denied. Id. at ¶ 6. That night, as he attempted to get into his top
bunk while wearing the sling, he fell backward into a locker and desk, injuring his neck
and back. Id. Approximately a week later, he again fell, this time while trying to exit his
upper bunk wearing the sling. Id. at ¶ 7. This time he injured his right knee when it struck
the metal ladder connected to the bunk bed. Id.
Since Petitioner’s vaccine-related injury, his life has been altered for the worse.
Ex. 7 at ¶ 8. He can no longer effectively work out in the gym, and states he cannot work
due to his physical limitations. Id. He is right-handed, and thus has difficulty with daily
tasks such as brushing his teeth and hair, showering, and hygiene related tasks. Id. This
has left him “mentally and emotionally exhausted.” Id.
IV. Other Evidence
A. Pain Management Group
Petitioner participated in an eight-week chronic pain management group between
October and December 2023. Ex. 26. As part of the group, he recorded his daily shoulder
pain and associated emotions. Id. For instance, in late October 2023, he rated his pain
as between three and five out of ten and described it as a throbbing pain. Id. at 4, 6. The
pain made him feel “despair” and “vulnerable.” Id. at 6. The first week of November, he
continued to experience a throbbing pain he rated as three out of ten, and it made him
feel sad and angry. Id. at 8. The next week, his pain ratings remained the same and made
him feel “helpless.” Id. at 10.
In mid-November, he rated his pain as five out of ten and “throbbing.” Ex. 26 at 12.
He felt annoyed with the pain. Id. The following week, his pain was three out of ten and
made him feel “depressed.” Id. at 14. In late November to early December, he rated his
pain two out of ten and felt optimistic. Id. at 16. After the December 7, 2023 biceps tendon
steroid injection, Petitioner reported no pain for the following two weeks. Id. at 18-20.
B. Lost Wage Evidence
Petitioner filed a Department of Corrections Notice of Special Needs Committee
Decision dated May 17, 2022. Ex. 23 at 9. The committee approved Petitioner’s request
for a low bunk for one year, with the modification of “No Rec, No Weight Room, No Work.”
Id. The decision has two handwritten sticky notes dated September 5, 2022, apparently
written by Petitioner, stating that he was placed on a one-year loss of recreation and work
because his arm required a low bunk. Id. Petitioner also filed a medical restrictions/special
needs form listing “No Work” with a start date of April 13, 2022 and a stop date of May 2,
2023. Id. at 10.
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Petitioner also filed an inmate assignment/removal form stating that his pay rate
was $0.19 per hour, and that his work schedule totaled 40 hours per week. Ex. 23 at 1. It
lists a job title of “Servery Worker 2.” Id. This form has a start date of June 2, 2019 listed.
However, the assignment status says “Termination – Administrative” as of October 10,
2019. Id.
V. The Parties’ Arguments
Petitioner seeks $140,000.00 in pain and suffering, plus $1,514.93 for past lost
wages.7 Petitioner’s Memorandum in Support of Damages, filed Oct. 24, 2023, at *22-36
(ECF No. 54) (“Mem.”). Respondent argues that Petitioner should be awarded the lesser
sum of $45,000.00 in pain and suffering, and that Petitioner has not preponderantly
established entitlement to any award for past or future lost wages. Respondent’s
Response, filed Feb. 7, 2024, at *9-15 (ECF No. 57) (“Resp.”). Petitioner replied in support
of his damages brief. Petitioner’s Reply, filed Feb. 28, 2024 (ECF No. 62) (“Reply”).
A. Pain and Suffering
Petitioner argues that he is entitled to $140,000.00 in pain and suffering based on
the severity and duration of his SIRVA. Mem. at *36. He describes this as “a net present
value” including past and future pain and suffering (id.), although he does not break down
how much of this is for past and how much is for future, or how he reduced the future
amount to net present value. Petitioner notes that he complained of shoulder pain on the
day of vaccination. Id. He underwent an MUA, four cortisone injections (including one
which was fluoroscopically-guided and one guided by ultrasound), 18 PT sessions, one
MRI, one ultrasound, two x-rays, and multiple off-site orthopedic specialist appointments
over the course of nearly four years. Id. at *26; Reply at *12.
Petitioner further argues that his SIRVA has had an overwhelming effect on his
quality of life. Mem. at *27. He submitted more than 45 HSRs reporting his ongoing right
shoulder pain and requesting medical care over four years, many noting his depression
and desire to alleviate his pain. Id. Due to his status as an inmate, he could not seek
specialized care at his convenience, and offsite visits were scaled back due to the COVID-
19 Pandemic, further delaying his ability to seek specialized care. Id. at *28. He
experienced complications from his SIRVA, including two falls from his top bunk. Id. His
initial requests for a low bunk were not granted. Id. For over three years after the onset
of his SIRVA, his treaters thought he could not have an MRI due to metal within his body.
Id. at 29. Ultimately, he was able to have an MRI. Id. And just days after his MUA under
7 Initially, Petitioner also sought future lost earnings totaling $395.20. Mem. at *23. However, he later
withdrew that request. Reply at *15.
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anesthesia, he was placed on a restricted housing unit where he was unable to remove
restraints outside of his cell, preventing his physical therapist from measuring his ROM.
Id.
Petitioner cites Selling, Rice-Hansen, and Bidlack, other cases involving
petitioners who underwent an MUA and were awarded pain and suffering of $105,000.00,
$175,000.00, and $100,000.00, respectively, in support of his claimed award.8 Petitioner
argues he and the Selling petitioner both underwent an MUA and 18 PT sessions, but
that Mr. Boyd’s course was “significantly more severe” than the Selling petitioner’s, with
Mr. Boyd receiving one more cortisone injection, one which was fluoroscopically guided,
as well as an additional interventional radiology injection of his bicipital groove. Id. at *30.
Petitioner also argues his symptoms continued longer, for nearly four years versus 2.5
years in Selling. Id.
Petitioner states that he and the Bidlack petitioner both underwent an MUA and a
comparable number of PT sessions, but argues that Petitioner’s course was significantly
more severe. Mem. at *31. The Bidlack petitioner received only two cortisone injections,
and his pain continued for only 13 months– compared to Petitioner, who received four
cortisone injections and whose symptoms continued for nearly four years. Id. at *31-32.
Petitioner acknowledges that the petitioner in Rice-Hansen underwent
arthroscopic surgery in addition to an MUA – and thus more invasive care – in addition to
more than twice as many PT sessions. Mem. at *31. But the Rice-Hansen petitioner
underwent only one cortisone injection (compared to four for Petitioner), and experienced
just over two years of pain, compared to nearly four years for Mr. Boyd. Id. Overall,
however, Petitioner acknowledges that the objective markers of pain and suffering are
more severe in Rice-Hansen than in this case, which he asserts is accounted for in his
request for a lower award. Id.
Petitioner also relies on other SIRVA cases where symptoms continued for over
three years - Jahn, Smith, and Monson, 9 involving pain and suffering awards of
$135,000.00, $128,748.74, and $155,000.00, respectively.10 Mem. at *33-35. Petitioner
8 Selling v. Sec’y of Health & Human Servs., No. 16-588V, 2019 WL 3425224 (Fed. Cl. Spec. Mstr. May 2,
2019); Rice-Hansen v. Sec’y of Health & Human Servs., No. 20-1338V, 2022 WL 183339478 (Fed. Cl.
Spec. Mstr. Dec. 9, 2022); and Bidlack v. Sec’y of Health & Human Servs., No. 20-0093V, 2023 WL
2885332 (Fed. Cl. Spec. Mstr. March 6, 2023).
9 Jahn v. Sec’y of Health & Human Servs., No. 18-0613V, 2021 WL 6550870 (Fed. Cl. Spec. Mstr. Dec. 17,
2021); Smith v. Sec’y of Health & Human Servs., No. 19-1384V, 2022 WL 3012509 (Fed. Cl. Spec. Mstr.
June 29, 2022); and Monson v. Sec’y of Health & Human Servs., No. 20-1350V, 2023 WL 2524059 (Fed.
Cl. Spec. Mstr. Feb. 8, 2023).
10 The Smith award included $125,000.00 for past pain and suffering and $3,748.74 for future pain and
suffering.
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asserts that he and the Jahn petitioner shared a comparable number of PT sessions and
cortisone injections, and both experienced symptoms for over three years after
vaccination, although the Jahn petitioner had a treatment gap of over two years. Id. at
*33. Although the Jahn petitioner underwent surgery (compared to an MUA), Petitioner
argues that the “objective markers of pain and suffering” are more severe in his case than
in Jahn. Id.
Petitioner acknowledges that the Smith petitioner underwent surgery and
additional PT sessions, but asserts that the Smith petitioner received only one steroid
injection (compared to Petitioner’s [four]) and had surgery only eight months after
vaccination, while Petitioner’s MUA took place nearly two years after vaccination. Mem.
at *34. And Petitioner acknowledges that the Monson petitioner’s case is more severe,
involving surgery and significantly more PT sessions but a comparable duration of
treatment. Id. at *34-35.
Respondent argues that Petitioner’s injury was mild and time-limited, and argues
that an award of $45,000.00 is reasonable, fair, and appropriate. Resp. at *9. Respondent
disputes Petitioner’s characterization of an injury continuing over four years. Id. at *10.
Respondent (inaccurately) asserts that there was a nearly ten-month gap in care between
June 23, 2020 and April 7, 2021 (Resp. at *5), and argues that “the significant gap in
treatment breaks the causal chain and the objective evidence demonstrates at most six
months of treatment.”11 Id. at *10. Thus, Respondent characterizes Petitioner’s injury as
involving “mild to moderate pain” and four PT sessions over a six-month period. Id.
Respondent argues that Petitioner’s MUA and steroid injections should not be included
in his damages evaluation due to the purported ten-month gap in treatment. Id. at *11.
Instead, Petitioner’s damages should be based on his course of treatment from December
2019 through June 2020. Id. Respondent argues that Petitioner’s pain was mild, and the
treatment gap distinguishes his course of treatment from the MUA cases he cites. Id. at
*12.
To support his preferred pain and suffering award, Respondent relies on Ramos
and Merwitz, cases in which the petitioners were awarded $40,000.00 and $50,000.00,
respectively.12 Resp. at *13-14. If anything, Respondent reasons, Petitioner’s case is less
11 As Petitioner points out in his reply, he was seen by a nurse practitioner on November 23, 2020, for right
shoulder pain, and submitted numerous HSRs during this alleged gap in treatment, but was told that the
facility where he was incarcerated had scaled back offsite visits for non-acute conditions due to the
Pandemic. Reply at *4-7.
12 Ramos v. Sec’y of Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan.
4, 2021); Merwitz v. Sec’y of Health & Human Servs., No. 20-1141V, 2022 WL 17820768 (Fed. Cl. Spec.
Mstr. Oct. 11, 2022).
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severe in light of the Ramos petitioner’s heightened pain, which he once rated ten out of
ten. Id. at *13. And Respondent argues that Petitioner’s treatment gap merits a reduction
from the award in Merwitz. Id. at *13-14.
Petitioner takes issue with Respondent’s assertion that Petitioner had a ten-month
gap in treatment after June 2020. Reply at *4-7. Petitioner cites numerous HSRs he
submitted during this time, and his November 23, 2020 consultation with a nurse
practitioner for right shoulder pain (Ex. 2 at 721-722) to demonstrate that the suggestion
that Petitioner had a ten month gap without complaints of shoulder pain is false. Id.
Petitioner also disputes Respondent’s assertion that Petitioner’s August 23, 2021
appointment with Dr. Nelson occurred four months after his last shoulder complaint,
pointing out that Petitioner submitted numerous HSRs, was seen by a nurse practitioner,
and underwent a shoulder ultrasound during this timeframe. Id. at *7-9.
Petitioner further asserts that Respondent’s argument that his MUA and steroid
injections should not be included in his damages evaluation is based on the inaccurate
premise that there was a ten-month treatment gap that “broke the causal chain.” Reply at
*10. In fact, Petitioner argues, the alleged ten-month gap “has no basis in reality, and is
unsupported by the evidence.” Id. at *11. Because Petitioner continued to complain of
shoulder pain, and was seen and evaluated for it during this time, there is no “break” in
the causal chain. Id. Rather, his treatment continued for four years. Reply at *11. In
December 2023 (after he filed his damages memorandum), Petitioner underwent a fourth
cortisone injection, and since that time has had a “significant recovery, reporting no further
pain in his shoulder.” Id. at *12. Petitioner argues that Respondent’s cases are not on
point. Id. at *12-14.
B. Past Lost Wages
Petitioner asserts that prior to his SIRVA, he worked full time at his correctional
institution at a rate of $0.19 per hour. Mem. at *22. Because of his SIRVA, he was granted
medical restriction, which he asserts means he was unable to work. Id. at *22-23.
Although his medical restriction was not extended beyond May 2, 2023, Petitioner asserts
he “has been unable to complete the tasks of a servery worker due to his ongoing
symptoms.” Id. at *23. He requests $1,514.93 in lost wages, which he explains represents
46 months – from December 2019 through late 2023 – of lost pay of 40 hours per week
at $0.19 per hour. Id. He adds that his inability to work has negatively impacted his quality
of life, explaining that any communication with friends or family costs money and his
inability to earn wages prevents him from having funds for communication and other
expenses. Id.
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Respondent argues that Petitioner has not shown entitlement to any lost wages
because there is no evidence of actual wage loss in the record. Resp. at *14. Petitioner
bases his alleged inability to work on the approval of his special needs request for a low
bunk. Id. However, there is no indication in the contemporaneous records that the low
bunk restriction supports his assertion that he was unable to work as a result of his SIRVA.
Id.
Petitioner replies that the medical restriction decision allowing him a low bunk
specifically stated that he was unable to work. Reply at *15. Thus, he maintains his claim
for past lost wages covering the period of December 2019 through December 2023. Id.
VI. Legal Standard
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Section V.A-B of Fritz v. Sec’y of
Health & Human Servs., No. 21-2086V, 2024 WL 4349581, at *6-8 (Fed. Cl. Spec. Mstr.
Aug. 29, 2024).
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 $250,000.00.” 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 & Human 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.13
VII. Appropriate Compensation
A. Pain and Suffering
Petitioner underwent an MUA, four steroid injections, approximately 18-20
sessions of PT,14 an MRI, an ultrasound, and two x-rays. He treated with health care
professionals in his correctional facility as well as offsite specialists. The records show
13 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr.
May 14, 2013) (quoting McAllister v. Sec’y of Health & Human 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)).
14 It appears that the records indicate that Petitioner attended 20 PT sessions, but Petitioner asserts he
attended 18 sessions. This minor difference would not alter my ruling herein.
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that Petitioner persistently requested care, but encountered some delays in receiving
treatment due to circumstances outside of his control.
I do not accept Respondent’s argument that any sequela after June 2020 should
be disregarded for damages purposes. Respondent’s position is based on a
misunderstanding of the facts. There was not in fact a ten month treatment gap between
June 2020 and April 2021. Petitioner treated once, and unsuccessfully sought treatment
numerous times, during that timeframe. As such, Respondent’s cases involving treatment
gaps are less useful. At most, Petitioner’s case does have some similarities to Merwitz.
Both Mr. Boyd and the Merwitz petitioner had minimal limitations in ROM, and similar
amounts of PT. Merwitz, 2022 WL 17820768, at *4-5. However, Mr. Boyd’s injury
persisted for far longer, and he also underwent an MUA and three additional steroid
injections.
At the same time, however, the record also shows that Petitioner’s treaters
sometimes noted inconsistencies when treating him. At a PT session in April 2020, for
example, Petitioner initially had severe ROM restrictions – but only five days later he was
found to have full ROM in flexion and abduction, leading the therapist to document the
inconsistency as “[e]vidence of symptom magnification.” Ex. 2 at 1071-1072. In addition,
during a telemedicine visit six weeks before his MUA, Petitioner demonstrated severe
restrictions in his right shoulder ROM in flexion and abduction. Ex. 9 at 231. However,
during the MUA six weeks later, Dr. Nelson was able to fully flex Petitioner’s shoulder
once he was anesthetized, and noted only a small amount of stiffness and release of
adhesions. Id. at 222. These seemingly anomalous exam findings, and the therapist’s
symptom magnification concern, lead me to give somewhat less weight to Petitioner’s
subjective descriptions of his pain levels to treaters, and to view the records pertaining to
his ROM with some skepticism.
Taking all of the above into consideration, I find that the record best supports a
finding that Petitioner experienced SIRVA symptoms for four years, but that for most of
that time his symptoms were on the milder side. The treatment records suggest shoulder
pain ranging from zero to nine, mostly on the lower side of the scale (especially since I
cannot ascertain the reliability of Petitioner’s self-reports of pain to treaters, for the
reasons noted above). The records pertaining to ROM are similarly somewhat
questionable. While some such evidence hints at moderate to severe restrictions in ROM,
there are other records very close in time that find Petitioner had either full ROM or very
minor deficits. Overall, the record best supports a finding that Petitioner had no more than
minimal ROM restrictions.
Of the cases Petitioner cites, Selling provides the best comparable, even though it
involved a more severe injury (albeit for a shorter time period). The Selling petitioner was
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noted to have “severe and debilitating pain” between his vaccination and his MUA and
was “unable to perform a number of basic tasks for several months.” Selling, 2019 WL
3425224, at *6. His condition was compounded by the fact that he was the sole caregiver
for his wife, who suffered from a disease causing very poor vision. Id. And he suffered
sufficient trauma from his shoulder injury that he sought psychological help. Id. The
Selling petitioner’s injury resolved sooner than Mr. Boyd’s, but Mr. Selling also continued
his home exercises until he was completely pain free over two years after vaccination. Id.
In contrast, Mr. Boyd was noted on several occasions not to have done his PT exercises
outside of his formal sessions, suggesting that he did not do all he could to aid in his own
recovery.
Overall, the facts relating to Petitioner’s injury present the kind of uncommon
circumstances in which a SIRVA injury requiring surgery should nevertheless not quite
result in a six-figure pain and suffering award. Thus, after a careful review of the entire
record, I find it best supports an award of $90.000.00 in pain and suffering.
B. Past Lost Wages
The record does not support a finding that Petitioner is entitled to past lost wages.
Petitioner has filed evidence suggesting that he was restricted from working from April
13, 2022 to May 2, 2023. Ex. 23 at 10. And he has filed evidence listing a pay rate and
work schedule. Id. at 1. This evidence does suggest a loss of wages during one-quarter
of the time period for which Petitioner seeks lost wages - but do not preponderantly
establish it even for that time period. And there is no evidence that would support lost
wages for the remaining years.
The document containing the pay rate and work schedule is from June 2019, and
has an assignment status of “Termination – Administration,” with an “as of” date of
October 10, 2019. Ex. 23 at 1. It is not clear what this means, but a reasonable inference
is that Petitioner was terminated in October 2019 – before the vaccination at issue. If this
were the case, then the fact that he was placed on “No Work” status from April 2022 to
May 2023 would have no meaning. And Petitioner has not submitted any evidence that
would suggest that he incurred wage losses during the remaining time period for which
he seeks compensation. As such, the lost wage claim is inadequately substantiated, and
denied for that reason.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $90,000.00 represents a fair and appropriate amount of
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Case 1:21-vv-00850-UNJ Document 64 Filed 11/08/24 Page 20 of 20
compensation for Petitioner’s actual pain and suffering.15 I find that Petitioner has
not established entitlement to lost wages by preponderant evidence.
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum payment of $90,000.00, in the form of a check payable
to Petitioner. This amount represents compensation for all damages that would be
available under Section 15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
16 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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