VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00982
Package ID: USCOURTS-cofc-1_21-vv-00982
Petitioner: Chih-Jung Chen
Filed: 2021-02-22
Decided: 2025-05-20
Vaccine: influenza
Vaccination date: 2020-10-10
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 55193

AI-assisted case summary:
Chih-Jung Chen, an adult, received an influenza vaccine on October 10, 2020. Within hours, she developed left arm pain that persisted and worsened over the following months, leading to a diagnosis of shoulder injury related to vaccine administration (SIRVA). Her medical records documented pain and limited range of motion in her left shoulder, attributed to the vaccination. She underwent 21 physical therapy sessions over several months, reporting significant improvement by the end of her treatment. The respondent argued that the onset of pain was not within the 48-hour window required for a Table claim. However, the court found that the evidence, including her own declarations and medical records linking the pain to the vaccination, preponderantly established that her pain began within 48 hours of the injection. The court also found that she met the remaining criteria for a Table SIRVA claim, including no prior history of shoulder issues and that her symptoms persisted for more than six months. The court awarded Chih-Jung Chen $55,000.00 for pain and suffering and $192.96 for out-of-pocket medical expenses, totaling $55,192.96.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00982-0
Date issued/filed: 2025-05-20
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/04/2025) regarding 47 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record. ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00982-UNJ Document 54 Filed 05/20/25 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0982V
CHIH-JUNG CHEN, Chief Special Master Corcoran
Petitioner, Filed: April 4, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Catherine Wallace Costigan, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Margaret Armstrong, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On February 22, 2021, Chih-Jung Chen filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on October
10, 2020. Petition at 1-3. The case was assigned to the Special Processing Unit of the
Office of Special Masters (the “SPU”).
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-00982-UNJ Document 54 Filed 05/20/25 Page 2 of 12
The parties engaged in negotiations (ECF Nos. 33, 35-38), but were unable to
resolve the matter on their own, and have now fully briefed entitlement and damages
(ECF Nos. 43, 44, 45). For the reasons set forth herein, I find that Petitioner is entitled to
compensation, and award damages for actual pain and suffering in the amount of
$55,000.00, plus $192.96 for out of pocket medical expenses.
I. Factual Evidence
A. Medical Records
On October 10, 2020, Petitioner received a flu vaccine in her left arm. Ex. 1 at 12,
13. Thirty-eight days later (November 17, 2020), she went to a student health center
complaining of arm pain in her left arm after her October 10th vaccination. Ex. 4 at 50.
She explained that the evening of vaccination, she developed “a fever 37.6C,
sweats/chills, then L arm was painful” for seven days. Id. The arm pain continued when
lifting heavy items or when reaching overhead or behind her to take off a coat. Id. She
had “stopped doing her exercises after the flu shot,” and had not started any new
activities. Id. at 51. On examination, she had full range of motion (“ROM”). Id. She was
advised to take ibuprofen, apply warm compresses, continue to move and stretch, and to
follow up if her arm worsened or did not improve. Id. at 52.
A month and a half later (January 4, 2021), Petitioner returned to the student health
center for left arm pain. Ex. 4 at 54. She complained of pain in her left arm “ever since”
the October 10th vaccination. Id. She explained that the first few days after vaccination
her arm “hurt really bad” and she could not use it. Id. The record states that the pain
“[w]ore off after first week and stayed painful,” (id.) which I interpret to mean that the pain
lessened, but did not fully go away, about a week after vaccination. Petitioner added that
“[l]ast week,” her arm pain had worsened. Id. On examination, her ROM was limited by
pain. Id. at 55. The doctor noted that Petitioner had “[e]nduring pain and limitation of ROM
90 days after injection of flu vaccine.” Id. at 56. She was assessed with bursitis and
advised to use ice and ibuprofen or naproxen, and to follow up with physical therapy
(“PT”) or an orthopedist if she did not improve. Id.
About a month later (February 3, 2021), Petitioner underwent a PT evaluation. Ex.
5 at 3. She complained of left shoulder pain that started after her flu vaccination on
October 10th. Id. The pain was worst right after waking up, and ibuprofen did not relieve
her pain. Id. Her pain was zero out of ten at rest, and five out of ten at worst. Id. On
examination, her left shoulder active ROM was 120 degrees in abduction, 76 degrees in
internal rotation, and 38 degrees in external rotation.3 Id. She had full-range, but painful,
3 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.
2

Case 1:21-vv-00982-UNJ Document 54 Filed 05/20/25 Page 3 of 12
shoulder flexion. Id. She had positive signs on the Speed’s, Neer’s, and Cross-Over tests.
Id. She was assessed with signs and symptoms consistent with left shoulder
derangement with cervical involvement. Id. Her long-term treatment goals were to be
pain-free and independent with home exercises. Id.
Petitioner attended a total of 21 PT sessions between February 3 and April 30,
2021. Ex. 8 at 5-8. At her final session on April 30th, she reported an 80% improvement.
Ex. 6 at 4. She continued to have pain ranging between two and three out of ten. Id. Her
arm was stiff in the morning, but she could complete her activities of daily living mostly
without pain. Id. The record states that she had demonstrated improvement in pain and
ROM, although the ROM documented in the examination section was unchanged from
the evaluation. Id. She continued to have left arm pain with resisted exercises. Id.
Petitioner was formally discharged from PT on May 27, 2021. Ex. 8 at 3. The
discharge summary states that she had met all goals,4 and was feeling good. Id.
B. Declarations
Petitioner filed two declarations in support of her claim. Exs. 3, 13. She states that
her left arm became sore on the evening of October 10th.5 Ex. 13 at ¶ 2. For the first two
days after vaccination, she intentionally avoided using her left arm because it was sore
when she moved it, even with small motions. Id. at ¶ 4.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
preponderantly demonstrate all matters required under Section 11(c)(1), including the
factual circumstances surrounding his or her claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section
13(a)(1). Petitioner’s allegations must be supported by medical records or by medical
Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 84, 88 (F. A.
Davis Co., 5th ed. 2016).
4 The statement that she had met all goals seems somewhat inconsistent with the fact that one of her goals
was to be pain-free, and at her final PT session she still reported pain levels of two to three out of ten. Ex.
5 at 3; Ex. 6 at 4.
5 Petitioner states in her supplemental declaration that her left arm became sore on the evening of October
10, 2021 – not 2020, when she received the vaccine at issue in this case. Ex. 13 at ¶ 2. However, she also
states that she received the flu vaccine on October 10, 2021. Id. at ¶ 1. Thus, I infer that she inadvertently
misstated the year, and intended to refer to October 10, 2020 as both the vaccination date and the day that
her arm pain began.
3

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opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received and the lack of
other award or settlement,6 a petitioner must establish that he or she suffered an injury
meeting the Table criteria, in which case causation is presumed, or an injury shown to be
caused-in-fact by the vaccination he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
or condition for more than 6 months after the administration of the vaccine . . . .” Section
11(c)(1)(D).
“[T]he fact that a Petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013, 2019 WL 978825, at *4
(Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (“a discharge
from medical care does not necessarily indicate there are no residual effects”). “A
6 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception and has not filed a civil suit or collected an award or settlement for his or her injury. Section
11(c)(1)(A)(B)(E).
4

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treatment gap . . . does not automatically mean severity cannot be established.” Law v.
Sec’y of Health & Human Servs., No. 21-0699V, 2023 WL 2641502, at *5 (Fed. Cl. Spec.
Mstr. Feb. 23, 2023) (finding severity requirement met where Petitioner sought care for
under three months and had met physical therapy goals but still lacked full range of motion
and experienced difficulty with certain activities, then returned to care nearly five months
later reporting stiffness and continuing restrictions in motion); see also Peeples v. Sec’y
of Health & Human Servs., No. 20-0634V, 2022 WL 2387749 (Fed. Cl. Spec. Mstr. May
26, 2022) (finding severity requirement met where Petitioner sought care for four months,
followed by fifteen month gap); Silvestri v. Sec’y of Health & Human Servs., No. 19-
1045V, 2021 WL 4205313 (Fed. Cl. Spec. Mstr. Aug. 16, 2021) (finding severity
requirement satisfied where Petitioner did not seek additional treatment after the five
month mark.
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
5

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(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
B. Parties’ Arguments on Entitlement
Petitioner argues that her medical records, as supported by her testimonial
evidence, demonstrate that she felt pain and limited ROM beginning on the evening of
October 10th (the date she received the vaccine). Petitioner’s Memorandum of Law, filed
Jan. 11, 2024, at *11-13 (ECF No. 43) (“Mem.”). She relies on records documenting pain
“ever since” vaccination. Mem. at *12. She also contends that it can be inferred from a
November 2020 record (stating that she had discontinued exercising after vaccination)
that the reason she did so is because of her vaccine-caused pain. Id.
Respondent argues that Petitioner has failed to preponderantly prove that she
suffered the onset of shoulder pain and ROM limitations within 48 hours of vaccination.
Respondent’s Response, filed Mar. 11, 2024, at *5 (ECF No. 44) (“Resp.”). She did not
seek medical attention until 38 days after vaccination, at which point she reported a fever,
sweats, and chills the night of vaccination and that she “then” had left arm pain for a
period of seven days. Resp. at *5. Respondent interprets the word “then” as meaning that
Petitioner “developed pain at some unspecified later time” after the fever, sweats, and
chills that occurred the night of vaccination, and that it is “not clear when that development
occurred.” Id.
Although Petitioner again sought medical treatment in January 2021, now reporting
pain “ever since” vaccination, Respondent characterizes this as “vague language.” Resp.
at *5. Furthermore, this visit occurred nearly three months after vaccination, and “[g]iven
the passage of time, moreover, it was unlikely that [Petitioner] could still precisely recall
the date of the onset of her pain.” Id. Respondent emphasizes that there are “no notations
in any record pinpointing onset of shoulder pain within forty-eight hours of vaccination.”
Id. at *6. Respondent views the records as “uniformly vague about the date of onset,” and
proposes crediting the earliest record, which Respondent asserts indicates that
Petitioner’s pain “began at some unspecified time after the initial systemic symptoms she
experienced on the night of vaccination.” Id. Respondent quotes language from decisions
6

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by other special masters in Pedri and Christopher finding onset not to be close in time to
vaccination.7 Id. at *5-6.
Petitioner replies that “the medical records in this case are not vague about date
of onset.” Petitioner’s Reply, filed Mar. 14, 2024, at *2 (ECF No. 45) (“Reply”). Petitioner
argues that it is common for SIRVA petitioners to delay seeking care in hopes that their
condition will resolve on its own, and a delay in seeking treatment is not, by itself,
evidence that the onset of pain was not immediate, citing Werning and Merwitz.8 Id.
Petitioner also challenges Respondent’s assertion that the November 2020 record
is unsupportive of a Table-consistent onset. Mem. at *11. Accepting this logic, she
maintains, would require unreasonable inferences that are not supported by the record –
inferring that “then” meant over 48 hours after vaccination, for example - contrary to the
remaining medical records which suggest the onset of her pain was closer in time to
vaccination. Id. Petitioner emphasizes that at her January 2021 appointment, she
reported pain “ever since” vaccination, and asks that I consider the totality of the
information provided in these records. Reply at *2.
In addition, Petitioner asserts that Pedri is “highly distinguishable” from this case
for several reasons. Reply at *3. First, the Pedri petitioner first sought care seven weeks
after vaccination, at which time she reported that her pain – in her shoulder and other
joints – began four weeks earlier, which would place onset more than two weeks after
vaccination. Id. The petitioner in Pedri did not relate her pain to vaccination until three
months after vaccination. Id. In contrast, Petitioner consistently related her shoulder pain
to vaccination, and did not complain of pain in other joints. Id. Unlike the Pedri petitioner,
Petitioner “never reported a timeline of injury that was inconsistent with” onset within 48
hours. Id.
Petitioner adds that Respondent’s claim that a petitioner must experience ROM
limitations within 48 hours of vaccination is not consistent with the QAI for SIRVA. Reply
at *3 (citing Gurney v. Sec’y of Health & Human Servs., No. 17-481V, 2019 WL 2865490
(Fed. Cl. Spec. Mstr. Apr. 24, 2019). Instead, the QAI requires only that the onset of pain
occur within 48 hours of vaccination. Id. Nonetheless, Petitioner argues that at her initial
appointment in November 2020, she reported discomfort moving her arm, especially
overhead or behind her back – suggesting that her ROM limitations did in fact occur within
48 hours of vaccination. Id. at *3-4.
7 Pedri v. Sec’y of Health & Human Servs., No. 18-1077V, 2023 WL 4927287 (Fed. Cl. Spec. Mstr. June
27, 2023) and Christopher v. Sec’y of Health & Human Servs., No. 18-1210V, 2020 WL 2466601 (Fed. Cl.
Spec. Mstr. Apr. 8, 2020).
8 Werning v. Sec’y of Health & Human Servs., No. 18-0267V, 2020 WL 5051154 (Fed. Cl. Spec. Mstr. July
27, 2020); Merwitz v. Sec’y of Health & Human Servs., No. 20-1141V, 2022 WL 17820768 (Fed. Cl. Spec.
Mstr. Oct. 11, 2022)
7

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C. Factual Findings on Onset
The record establishes that it is more likely than not that Petitioner’s left shoulder
pain began within 48 hours of vaccination. Petitioner sought care just over a month after
vaccination (not a lengthy period of time), and related her left arm pain to that event. I
have repeatedly stated that it is common for SIRVA petitioners to delay seeking medical
treatment for a month – or longer – in the reasonable hope that the condition will resolve
on its own. See Shiver v. Sec’y of Health & Human Servs., No. 21-1961V, 2024 WL
4544185, at *11 (Fed. Cl. Spec. Mstr. Sept. 16, 2024) (finding evidence preponderantly
established that onset of shoulder pain occurred within 48 hours of vaccination where the
petitioner first sought care two weeks after vaccination); Amor v. Sec’y of Health & Human
Servs., No. 20-0978V, 2024 WL 1071877, at *6 (Fed. Cl. Spec. Mstr. Feb. 8, 2024) (noting
that it is “common for petitioners in SIRVA cases to delay seeking care for weeks, or even
months, in hopes that the pain will resolve without treatment” and finding onset was within
48 hours when Petitioner first sought care 23 days after vaccination); Diaz v. Sec’y of
Health & Human Servs., No. 20-1003V, 2023 WL 8440873, at *8 (Fed. Cl. Spec. Mstr.
Nov. 1, 2023) (finding onset occurred on day of vaccination, even though the petitioner
did not seek treatment until over three months later).
In addition, there is no requirement that a medical record state that a petitioner’s
pain began specifically within 48 hours in order for a claimant to succeed on a SIRVA
Table claim. Instead, the standard for resolving factual questions (including the onset of
pain) is whether the petitioner has demonstrated the disputed fact by a preponderance of
the evidence. Section 13(a)(1); Roberson v. Sec’y of Health & Human Servs., No. 21-
2309V, 2025 WL 605724 (Fed. Cl. Spec. Mstr. Jan. 24, 2025) (stating that the “absence
of a specific date” of onset in medical records is not “compelling or particularly
meaningful,” and finding onset within 48 hours where the petitioner sought care 23 days
after vaccination and reported pain for two to three weeks at the time of vaccination).
Although Petitioner’s initial treatment record leaves room for interpretation as to
when her pain began, it does clearly link her pain to vaccination, stating that it began
“after” vaccination. Ex. 4 at 50. And the January 2021 record states that her had been
present “ever since” vaccination – which can reasonably be read to mean that her pain
began immediately after vaccination. This record is also relatively close in time to
vaccination (dated less than three months thereafter), bolstering its evidentiary value.
Petitioner’s testimonial evidence provides further corroboration.
I do not agree with Respondent that the November 2020 record stating that she
had fever, chills, and “then” her arm was painful, suggests that her pain likely began more
than 48 hours after vaccination. In the context of the other medical records, particularly
the January 2021 record documenting pain “ever since” vaccination, along with
supporting testimonial evidence, I find it is more likely that Petitioner’s pain began within
48 hours of vaccination.
8

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Respondent’s contentions about timing of ROM limits have far less of a legal basis.
There is no requirement in the QAI that a petitioner demonstrate that his or her ROM
limitations began within 48 hours of vaccination (unlike with pain). Petty v. Sec’y of Health
& Human Servs., No. 19-1332V, 2024 WL 5381961, at *4 (Fed. Cl. Spec. Mstr. Sept. 24,
2024); Portee v. Sec’y of Health & Human Servs., No. 16-1552V, 2018 WL 5284599, at
*11 (Fed. Cl. Spec. Mstr. Sept. 14, 2018) (discussing QAI language). Thus, for purposes
of establishing that onset, it does not matter when Petitioner’s limited ROM began.
D. Factual Findings on Remaining SIRVA QAI Criteria and Statutory
Requirements
The remaining QAI and statutory requirements are not disputed, and I find that
they are satisfied. The record does not contain preponderant evidence that Petitioner had
a history of left shoulder pain or any other condition that would explain her post-
vaccination symptoms. Exs. 4, 11. She exhibited reduced ROM, and her pain and ROM
limitations were limited to the vaccinated shoulder. Ex. 4 at 55; Ex. 5 at 3. She received
a covered vaccine in the United States. Ex. 1. She experienced residual effects of her
injury for more than six months. Ex. 6 at 4. And she states that she not previously collected
an award or settlement, nor are there any civil actions pending, for her vaccine-related
injury. Ex. 3 at ¶ 3.
I find that Petitioner has established by a preponderance of the evidence that all
Table SIRVA and QAI requirements are established. Further, she has established all
statutory requirements for entitlement. Thus, Petitioner is entitled to compensation.
III. Damages
A. 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 I-II of Timberlake v. Sec’y of
Health & Human Servs., No. 20-1905V, 2025 WL 721730 (Fed. Cl. Spec. Mstr. Feb. 19,
2025).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.00.” 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
9

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suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.9
B. Parties’ Damages Arguments
Petitioner requests an award of $70,000.00 for actual pain and suffering. Mem. at
*15. Petitioner relies on three reasoned decisions to defend this request: Dagen, Morgan,
and Garrett.10 Id. at *16-17. Petitioner asserts that her case is like Dagen in that both
petitioners had injuries that were largely improved by seven months after onset. Id. at *16.
However, Petitioner attended more PT sessions, meriting a slightly higher award. Id. And
the Morgan petitioner’s injury duration and course of treatment are also comparable. Id.
at *16-17.
Respondent proposes “a pain and suffering award commensurate with awards in
mild SIRVA cases,” without recommending a specific amount. Resp. at *7. Respondent
characterizes Petitioner’s injury as “mild.” Id. Respondent cites nine cases with awards
between $35,000.00 and $65,000.00.11 Id. at *11-12. Respondent emphasizes that
Petitioner did not seek care until 38 days after vaccination; her treatment was limited to
21 PT sessions and over the counter medications; her highest pain level was five out of
ten; she did not require an MRI; her symptoms persisted for seven and a half months, at
which time she was feeling good – all indicative of a mild injury. Id. at *13.
9 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)).
10 Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov.
6, 2019) (pain and suffering award of $65,000.00); Morgan v. Sec’y of Health & Human Servs., No. 20-
1286V, 2022 WL 4717958 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (pain and suffering award of $63,000.00);
Garrett v. Sec’y of Health & Human Servs., No. 18-0490V, 2019 WL 2462953 (Fed. Cl. Spec. Mstr. Apr. 8,
2019) (pain and suffering award of $70,000.00).
11 Valdez v. Sec’y of Health & Human Servs., No. 21-0394V, 2024 WL 1526536 (Fed. Cl. Spec. Mstr. Feb.
28, 2024) (pain and suffering award of $35,000.00); McGraw v. Sec’y of Health & Human Servs., No. 21-
72V, 2024 WL 1160065 (Fed. Cl. Spec. Mstr. Feb. 15, 2024) (pain and suffering award of $37,500.00);
Ramos v. Sec’y of Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4,
2021) (pain and suffering award of $40,000.00); Mejias v. Sec’y of Health & Human Servs., No. 19-1944V,
2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov. 11, 2021) (pain and suffering award of $45,000.00);
Kleinschmidt v. Sec’y of Health & Human Servs., No. 20-0680V, 2023 WL 9119039 (Fed. Cl. Spec. Mstr.
Dec. 5, 2023) (pain and suffering award of $55,000.00); Green v. Sec’y of Health & Human Servs., No. 20-
0378V, 2023 WL 6444421 (Fed. Cl. Spec. Mstr. Sept. 1, 2023) (pain and suffering award of $55,000.00);
Aponte v. Sec’y of Health & Human Servs., No. 20-1031V, 2022 WL 4707180 (Fed. Cl. Spec. Mstr. Sept.
2, 2022) (pain and suffering award of $60,000.00); Klausen v. Sec’y of Health & Human Servs., No. 19-
1977V, 2023 WL 2368823 (Fed. Cl. Spec. Mstr. Feb. 2, 2023) (pain and suffering award of $60,000.00);
Foster v. Sec’y of Health & Human Servs., No. 21-0647V, 2024 WL 1073009 (Fed. Cl. Spec. Mstr. Feb. 6,
2024) (pain and suffering award of $60,000.00).
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Respondent also argues that the cases Petitioner cites are distinguishable. Resp.
at *13-14. The Dagen petitioner sought treatment only two weeks after vaccination – three
weeks sooner than Petitioner – and treated with oral steroids and a steroid injection in
addition to PT, while Petitioner only treated with PT and over the counter medications. Id.
at *14. And the Morgan petitioner sought treatment only five days after vaccination,
suggesting a more severe injury, while the Garrett petitioner experienced significant
weakness in his arm, and missed his high school basketball season due to his injury. Id.
Petitioner argues that her case is distinguishable from the cases Respondent cites.
Reply at *5-8. Ramos, Mejias, Kleinschmidt, and Klausen involved lengthier delays in
seeking care and/or treatment gaps and less PT. Id. While Petitioner and the Aponte
petitioner underwent similar amounts of treatment, Petitioner required more PT sessions,
21 compared to seven. Id. at *7.
C. Appropriate Compensation for Pain and Suffering
I find that Petitioner suffered a SIRVA that was on the milder side as compared
with other cases. She treated with two visits to her student health center and 21 PT
sessions. Her pain levels and ROM limitations were relatively mild, and when she finished
treatment about six and a half months after vaccination, her shoulder was 80% improved.
The cases Petitioner cites are comparable to the facts of this case in terms of the
duration of the injury. However, all three of the cited decisions involve petitioners who
sought care much sooner than Petitioner did, and underwent MRIs – suggesting more
severe injuries. While Petitioner attended more PT than the petitioners in the cases she
relies on, the Dagen petitioner also received a cortisone injection, while Petitioner did not.
Of the cases cited by Petitioner, the closest is Morgan – although the Morgan
petitioner sought care much sooner than Petitioner (only six days after vaccination), and
had much greater pain levels and ROM limitations and underwent two MRIs. While I do
not find that Petitioner’s slight delay in seeking care defeats her claim, it is relevant to
damages, in that it suggests that her injury was not as painful or disruptive as injuries in
the cases she cites. In light of this and her generally less severe symptoms, I find that a
somewhat lower award is appropriate.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I GRANT Petitioner’s motion for a ruling on the record, and find that
Petitioner suffered an injury that meets the definition for a Table SIRVA and is
entitled to compensation. I find that $55,000.00 represents a fair and appropriate
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amount of compensation for Petitioner’s actual pain and suffering.12 Additionally, I
find that Petitioner is entitled to $192.96 in out of pocket expenses.13
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum of $55,192.96, to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement 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.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 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)).
13 The parties agree that this amount is reimbursable. Mem. at *2, 18. Resp. at 14.
14 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12