VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02202
Package ID: USCOURTS-cofc-1_21-vv-02202
Petitioner: Theresa Kelly
Filed: 2021-11-22
Decided: 2025-05-01
Vaccine: influenza
Vaccination date: 2020-09-18
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 55000

AI-assisted case summary:
Theresa Kelly filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine she received on September 18, 2020. She experienced left shoulder pain and decreased range of motion following the vaccination. Medical records documented bursitis, capsulitis, and a partial tear of the supraspinatus tendon. The parties fully briefed entitlement and damages. The court found that Theresa Kelly is entitled to compensation, awarding her $55,000.00 for actual pain and suffering. The injury was determined to be a Table SIRVA, with onset presumed to have occurred within 48 hours of vaccination, despite her first seeking medical attention 20 days later. The court found that the remaining SIRVA criteria and statutory requirements were met, including experiencing residual effects for more than six months. The award was based on a mild SIRVA that resolved in approximately seven months with conservative treatment, including one steroid injection, but without formal physical therapy.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-02202-0
Date issued/filed: 2025-05-01
Pages: 11
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/18/2025) regarding 31 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-02202-UNJ Document 34 Filed 05/01/25 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-2202V
THERESA KELLY, Chief Special Master Corcoran
Petitioner, Filed: March 18, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On November 22, 2021, Theresa Kelly 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 September
18, 2020. Petition at 1. 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-02202-UNJ Document 34 Filed 05/01/25 Page 2 of 11
The parties briefly negotiated (ECF Nos. 23, 24), but were unable to resolve the
matter on their own, and have now fully briefed entitlement and damages (ECF Nos. 27,
29, 30). 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.
I. Factual Evidence
A. Medical Records
On September 18, 2020, Petitioner received a flu vaccine in her left deltoid at a
Walgreens pharmacy. Ex. 1 at 4.3 Twenty days later (October 8, 2020), she called the
office of her primary care physician (“PCP”) complaining that after vaccination she could
not move her shoulder, and the problem continued to persist. Ex. 3 at 32. The same day,
she was seen by Dr. Jared Brinker in her PCP’s office for left arm pain that started after
her September 18th vaccination. Id. at 33. Petitioner complained of decreased range of
motion (“ROM”), stiffness, and “very significant” pain. Id. On examination, her left shoulder
ROM was “poor” and she had difficulty with abduction. Id. at 35. Dr. Brinker diagnosed
Petitioner with “bursitis due to influenza vaccine” and provided anti-inflammatory
medication. Id. at 36.
On October 28, 2020, Petitioner saw her PCP, Dr. Rebecca Raedeke, again
complaining of left shoulder pain that started after vaccination on September 18th. Ex. 3
at 41. The medication she received at the prior visit helped, but had not resolved her pain.
Id. Her left shoulder ROM was decreased and painful, with abduction limited to 90
degrees. Id. at 44. Dr. Raedeke agreed that Petitioner had likely subdeltoid or
subacromial bursitis, probably from vaccination. Id. She ordered an MRI and referred
Petitioner to an orthopedist for a possible steroid injection. Id.
The next day, Petitioner had a left shoulder MRI. Ex. 4 at 3. The MRI showed a
deep partial tear of her supraspinatus tendon. Id.
On December 9, 2020, Petitioner saw orthopedist Dr. Jason Ramsey. Ex. 5 at 4.
Petitioner complained of a two and a half-month history of left shoulder pain, tightness,
weakness, and instability that started after her flu vaccination. Id. Her shoulder was sore
“right after the injection,” and three days later when she reached out with her left arm, she
started having “throbbing pain in the shoulder radiating into the forearm.” Id. Her pain was
currently between five and six out of ten, but worsened to eight or nine at its peak. Id.
Sleeping on her left side and moving her shoulder aggravated her pain, while applying
heat and taking anti-inflammatory medication provided relief. Id.
3 On the same date, Petitioner received a shingles vaccine in her right arm that is not at issue in this claim.
2

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On examination, her left shoulder active ROM was 155 degrees in forward
elevation, 85 degrees in abduction, and 65 degrees in external rotation, all with
discomfort. Ex. 5 at 4. Dr. Ramsey reviewed the MRI images and noted that there was a
small amount of bursal fluid and the bursa looked “inflamed,” in addition to the partial
rotator cuff tear noted on the MRI report. Id. Dr. Ramsey assessed Petitioner with left
shoulder bursitis, capsulitis, and a low-grade partial thickness tear of the supraspinatus
tendon. Id. He noted that she had “inflamed her bursa and has some limited motion
suggesting some capsulitis in the left shoulder after the flu vaccination event.” Id. at 5. He
did not think the supraspinatus tear was causing much of her shoulder problem. Id. He
administered a cortisone injection and recommended that Petitioner do home exercises.
Id.
Petitioner returned to Dr. Ramsey the following month (January 6, 2021). Ex. 5 at
6. Petitioner reported “about 70% resolution of her discomfort” and improvement in her
ROM. Id. She was doing her home exercises and felt she was making good progress. Id.
On examination, her left shoulder ROM was 170 degrees in forward elevation, 90 degrees
in abduction, and 65 degrees in external rotation. Id. Dr. Ramsey recommended that
Petitioner continue home exercises and return in two months. Id.
Nearly four months later (April 28, 2021), Petitioner followed up with Dr. Ramsey.
Ex. 5 at 7. She was feeling better, but still avoided reaching back and away from her body
due to pain. Id. She continued to avoid sleeping on her left shoulder and picking up heavy
objects at work. Id. On examination, her left shoulder ROM was now 180 degrees in
forward elevation, “close to 90” degrees in abduction, and about 75 degrees in external
rotation. Id. Dr. Ramsey advised Petitioner to transition from stretching to working on
strengthening her shoulder. Id. He did not schedule any follow up, but told her she could
come back if her symptoms worsened. Id. There are no further treatment records relating
to Petitioner’s left shoulder pain.
B. Declarations
Petitioner filed two short declarations in support of her claim. Exs. 6, 9. She
explains that her “slight delay” in reporting her shoulder pain was because she “always
expect[s] some pain and swelling with a vaccine.” Ex. 9 at ¶ 3. She is not “someone that
complains about every little thing,” and thought the pain would go away. Id. She had never
heard of a shoulder injury from vaccination until this happened to her. Id. at ¶ 4. Initially,
she returned to Walgreens (where she received the vaccine) seeking assistance, but
when she realized that was not going to help, she called her PCP. Id. at ¶ 5.
3

Case 1:21-vv-02202-UNJ Document 34 Filed 05/01/25 Page 4 of 11
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate by preponderant evidence 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 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,4 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,
4 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

Case 1:21-vv-02202-UNJ Document 34 Filed 05/01/25 Page 5 of 11
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
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
5

Case 1:21-vv-02202-UNJ Document 34 Filed 05/01/25 Page 6 of 11
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
(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 the evidence supports a finding that the onset of her
shoulder pain occurred within 48 hours of vaccination. Petitioner’s Motion for a Ruling on
the Record, filed Dec. 11, 2023, at *6 (ECF No. 27) (“Mot.”). Petitioner first sought care
20 days after vaccination, stating that she could not move her shoulder and this problem
had been present for 20 days – placing onset on the day of vaccination. Id. And she
continuously and consistently related the onset of her pain to the flu vaccination to her
PCP and orthopedist. Id. She cites Williams v. Sec’y of Health & Human Servs., No. 17-
1046V, 2020 WL 3579763, at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2020) for the proposition
that notations characterizing onset as ‘since,’ ‘after,’ ‘following,’ are best understood as
indicating that onset occurred within 48 hours of vaccination. Id.
Respondent counters that Petitioner’s association of her shoulder pain with
vaccination does not demonstrate Table onset. Respondent’s Brief, filed Mar. 7, 2024, at
*5 (ECF No. 29) (“Br.”). Respondent emphasizes that Petitioner’s first treatment was
almost three weeks after vaccination, at which point she “vaguely” described the onset of
her symptoms as pain that started after vaccination. Br. at *5. And nowhere do the medical
records state that her pain began within 48 hours of vaccination. Id. Respondent takes
6

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issue with Petitioner’s citation of Williams, noting that the special master in that case relied
in part on the deposition of the petitioner’s PCP, who understood Petitioner to have
reported immediate onset. Br. at *6
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 for shoulder pain only 20 days after vaccination. This timing
does not inherently raise questions about whether Petitioner’s shoulder pain began long
after vaccination. It is common for SIRVA petitioners to delay seeking care for this length
of time – or much longer – because they expect the pain to go away 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 just 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).
Contrary to Respondent’s suggestion, 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 such as the onset of pain is whether the petitioner has demonstrated the
disputed fact by a preponderance of the evidence. Vaccine Act § 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).
Medical record evidence expressly stating that a claimant’s pain began within 48
hours of vaccination would, of course, be strong evidence in favor of such a finding. But
that is not the only way that a claimant can succeed in meeting the onset element. In a
case such as this one, where the medical records do not specify a precise onset date, a
petitioner may nonetheless establish by preponderant evidence that pain began within 48
hours of vaccination. In such cases, I review the medical records for evidence that
supports – or calls into question – whether pain began within that timeframe, and review
testimonial and other evidence to see if it corroborates – or contradicts – the medical
7

Case 1:21-vv-02202-UNJ Document 34 Filed 05/01/25 Page 8 of 11
records. In this case, the medical record evidence, corroborated by testimonial evidence,
leads to the conclusion that, more likely than not, Petitioner’s shoulder pain began within
48 hours of vaccination.
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. 2, 3. She exhibited reduced ROM, and her pain and ROM
limitations were limited to the vaccinated shoulder. Ex. 3 at 35, 44; Ex. 5 at 4, 6, 7. She
received a covered vaccine in the United States. Ex. 1. She experienced residual effects
of her injury for more than six months. Ex. 5 at 7. And she states that she has never
received an award or settlement for her vaccine-related injury or filed a civil action. Ex. 6
at ¶ 6.
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
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.5
5 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.
8

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B. Parties’ Damages Arguments
Petitioner requests a pain and suffering award of $68,000.00. Mot. at *11. She
relies on my decisions in Russo, Johnson, Dagen, and T.E.6 Id. at 9-11. Her injury
persisted for seven months, during which time she saw her PCP twice, went to an
orthopedist three times, and had one cortisone injection. Id. at *11. She argues that her
case is similar to T.E., Johnson, and Dagen in that she treated with an orthopedic
surgeon. Id. Petitioner also had one steroid injection, while the Russo petitioner “only had
conservative treatment,” presumably meaning no steroid injections. Id. And she treated
for six months, a similar timeframe to the petitioners in T.E. and Johnson. Id.
Respondent proposes an award of no more than $25,000.00 for what he
characterizes as a “mild and limited in duration” injury. Br. at *6. Petitioner’s injury was
treated conservatively over a period of seven months with one prescription medication
and one cortisone injection. Id. at *8. Although a home exercise program was prescribed,
Respondent views it as “impossible to say whether and to what degree she utilized the
program” because this was not monitored. Id. at *8 n.2.
Respondent explains that his position on damages in this case “necessarily factors
in the deficiencies in the evidence that prevented respondent from conceding
entitlement.” Br. at *11. As such, Respondent views Petitioner’s cited cases as “not
comparable” because in those cases, entitlement to compensation had already been
determined. Id. at *9. Indeed, Respondent asserts that “[n]o damages decision in which
entitlement to compensation has already been decided can be truly comparable to this
case given the lack of proof relevant to entitlement” outlined in Respondent’s papers. Id.
at *11.
Respondent nonetheless cites Mejias as a “more comparable” case than the cases
Petitioner cites.7 Br. at *11. Respondent asserts that Mejias is “instructive as a mild SIRVA
that is yet more severe than petitioner’s case,” justifying a lower award in this case. Id.
Respondent adds that Russo is not comparable in that it involved a slightly longer duration
(eight months) with mild to moderate symptoms, the Russo petitioner required more
treatment, and her symptoms impacted her quality of life and persisted beyond treatment.
1995)).
6 Russo v. Sec’y of Health & Human Servs., No. 20-1491V, 2022 WL 4717927 (Fed. Cl. Spec. Mstr. Aug.
31, 2022) (awarding $63,000.00 in pain and suffering); Johnson v. Sec’y of Health & Human Servs., No.
18-1486V, 2021 WL 836891 (Fed. Cl. Spec. Mstr. Jan. 25, 2021) (awarding $65,000.00 in pain and
suffering); Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec.
Mstr. Nov. 6, 2019) (awarding $65,000.00 in pain and suffering); and T.E. v. Sec’y of Health & Human
Servs., No. 19-0633V, 2021 WL 2935751 (Fed. Cl. Spec. Mstr. May 7, 2021) (awarding $70,000.00 in pain
and suffering).
7 Mejias v. Sec’y of Health & Human Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov.
10, 2021) (awarding $45,000.00 in pain and suffering).
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Id. at *9. Johnson involves a petitioner who sought treatment just two days after
vaccination – suggesting more severe pain – and who also underwent formal PT. Id. at
*9-10. The Dagen petitioner attended 13 PT sessions, and her pain was initially “fairly
significant” at ten out of ten, though her SIRVA was noted as “less severe.” Id. at *10. And
the T.E. petitioner also attended formal PT (seven sessions). Id.
On reply, Petitioner asserts that Respondent has not cited any reasoned decisions
that support his proposed award of $25,000.00. Petitioner’s Reply, filed March 11, 2024,
at *1 (ECF No. 30) (“Reply”). And the Mejias petitioner did not have any injections or PT,
and had an eight month treatment gap. Reply at *2.
C. Appropriate Compensation for Pain and Suffering
I understand Respondent’s rationale for factoring perceived evidentiary
deficiencies into his damages position, given the posture of this case. However, the
resulting damages analysis tends to be less helpful. Now that I have determined that
Petitioner has indeed shown entitlement to compensation, Petitioner is entitled to
compensation. Weaknesses in evidence that result in Respondent objecting to
compensation may also be relevant to damages – for instance, a lengthy delay in seeking
treatment may impact both Respondent’s willingness to concede entitlement and the pain
and suffering award, in that it could suggest a less severe injury. But the evidentiary
concerns raised by Respondent in this case do not, in my view, bear in any meaningful
way on the factors relevant to damages. In future cases where the parties are directed to
brief both entitlement and damages together, I encourage Respondent to propose the
damages he believes would be appropriate if I were to find that Petitioner is entitled to
compensation.
This case involves a mild SIRVA that was treated conservatively and resolved in
about seven months. Petitioner had moderate pain levels initially, but a steroid injection
less than three months after vaccination provided significant pain relief. Her ROM
restrictions were not severe, and she did not undergo formal PT.
Mejias – the only case Respondent cites – is not a good comparable. Although the
petitioner in that case had a slightly longer injury duration, he also had a lengthy treatment
gap of eight months, with intervening care for other issues – suggesting that he
experienced a long period of relief.
Rather, this case is most similar to Dagen. The Dagen petitioner first sought care
15 days after vaccination, compared to 20 days in this case. Both petitioners’ injuries
resolved in approximately seven months, and both petitioners underwent one steroid
injection. However, the Dagen petitioner also attended two rounds of PT totaling 14
sessions, while Ms. Kelly did not do any formal PT. I find that an award of $55,000.00 in
actual pain and suffering is an appropriate award in this case.
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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 award Petitioner a lump sum payment of $55,000.00, 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.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
11

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-02202-1
Date issued/filed: 2025-05-02
Pages: 11
Docket text: ) Service on parties made.PUBLIC DECISION (Originally filed: 03/18/2025) regarding 31 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record. ( Signed by Chief Special Master Brian H. Corcoran. )(mpj
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Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-2202V
THERESA KELLY, Chief Special Master Corcoran
Petitioner, Filed: March 18, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On November 22, 2021, Theresa Kelly 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 September
18, 2020. Petition at 1. 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-02202-UNJ Document 35 Filed 05/02/25 Page 2 of 11
The parties briefly negotiated (ECF Nos. 23, 24), but were unable to resolve the
matter on their own, and have now fully briefed entitlement and damages (ECF Nos. 27,
29, 30). 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.
I. Factual Evidence
A. Medical Records
On September 18, 2020, Petitioner received a flu vaccine in her left deltoid at a
Walgreens pharmacy. Ex. 1 at 4.3 Twenty days later (October 8, 2020), she called the
office of her primary care physician (“PCP”) complaining that after vaccination she could
not move her shoulder, and the problem continued to persist. Ex. 3 at 32. The same day,
she was seen by Dr. Jared Brinker in her PCP’s office for left arm pain that started after
her September 18th vaccination. Id. at 33. Petitioner complained of decreased range of
motion (“ROM”), stiffness, and “very significant” pain. Id. On examination, her left shoulder
ROM was “poor” and she had difficulty with abduction. Id. at 35. Dr. Brinker diagnosed
Petitioner with “bursitis due to influenza vaccine” and provided anti-inflammatory
medication. Id. at 36.
On October 28, 2020, Petitioner saw her PCP, Dr. Rebecca Raedeke, again
complaining of left shoulder pain that started after vaccination on September 18th. Ex. 3
at 41. The medication she received at the prior visit helped, but had not resolved her pain.
Id. Her left shoulder ROM was decreased and painful, with abduction limited to 90
degrees. Id. at 44. Dr. Raedeke agreed that Petitioner had likely subdeltoid or
subacromial bursitis, probably from vaccination. Id. She ordered an MRI and referred
Petitioner to an orthopedist for a possible steroid injection. Id.
The next day, Petitioner had a left shoulder MRI. Ex. 4 at 3. The MRI showed a
deep partial tear of her supraspinatus tendon. Id.
On December 9, 2020, Petitioner saw orthopedist Dr. Jason Ramsey. Ex. 5 at 4.
Petitioner complained of a two and a half-month history of left shoulder pain, tightness,
weakness, and instability that started after her flu vaccination. Id. Her shoulder was sore
“right after the injection,” and three days later when she reached out with her left arm, she
started having “throbbing pain in the shoulder radiating into the forearm.” Id. Her pain was
currently between five and six out of ten, but worsened to eight or nine at its peak. Id.
Sleeping on her left side and moving her shoulder aggravated her pain, while applying
heat and taking anti-inflammatory medication provided relief. Id.
3 On the same date, Petitioner received a shingles vaccine in her right arm that is not at issue in this claim.
2

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 3 of 11
On examination, her left shoulder active ROM was 155 degrees in forward
elevation, 85 degrees in abduction, and 65 degrees in external rotation, all with
discomfort. Ex. 5 at 4. Dr. Ramsey reviewed the MRI images and noted that there was a
small amount of bursal fluid and the bursa looked “inflamed,” in addition to the partial
rotator cuff tear noted on the MRI report. Id. Dr. Ramsey assessed Petitioner with left
shoulder bursitis, capsulitis, and a low-grade partial thickness tear of the supraspinatus
tendon. Id. He noted that she had “inflamed her bursa and has some limited motion
suggesting some capsulitis in the left shoulder after the flu vaccination event.” Id. at 5. He
did not think the supraspinatus tear was causing much of her shoulder problem. Id. He
administered a cortisone injection and recommended that Petitioner do home exercises.
Id.
Petitioner returned to Dr. Ramsey the following month (January 6, 2021). Ex. 5 at
6. Petitioner reported “about 70% resolution of her discomfort” and improvement in her
ROM. Id. She was doing her home exercises and felt she was making good progress. Id.
On examination, her left shoulder ROM was 170 degrees in forward elevation, 90 degrees
in abduction, and 65 degrees in external rotation. Id. Dr. Ramsey recommended that
Petitioner continue home exercises and return in two months. Id.
Nearly four months later (April 28, 2021), Petitioner followed up with Dr. Ramsey.
Ex. 5 at 7. She was feeling better, but still avoided reaching back and away from her body
due to pain. Id. She continued to avoid sleeping on her left shoulder and picking up heavy
objects at work. Id. On examination, her left shoulder ROM was now 180 degrees in
forward elevation, “close to 90” degrees in abduction, and about 75 degrees in external
rotation. Id. Dr. Ramsey advised Petitioner to transition from stretching to working on
strengthening her shoulder. Id. He did not schedule any follow up, but told her she could
come back if her symptoms worsened. Id. There are no further treatment records relating
to Petitioner’s left shoulder pain.
B. Declarations
Petitioner filed two short declarations in support of her claim. Exs. 6, 9. She
explains that her “slight delay” in reporting her shoulder pain was because she “always
expect[s] some pain and swelling with a vaccine.” Ex. 9 at ¶ 3. She is not “someone that
complains about every little thing,” and thought the pain would go away. Id. She had never
heard of a shoulder injury from vaccination until this happened to her. Id. at ¶ 4. Initially,
she returned to Walgreens (where she received the vaccine) seeking assistance, but
when she realized that was not going to help, she called her PCP. Id. at ¶ 5.
3

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 4 of 11
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate by preponderant evidence 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 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,4 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,
4 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

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 5 of 11
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
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
5

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 6 of 11
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
(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 the evidence supports a finding that the onset of her
shoulder pain occurred within 48 hours of vaccination. Petitioner’s Motion for a Ruling on
the Record, filed Dec. 11, 2023, at *6 (ECF No. 27) (“Mot.”). Petitioner first sought care
20 days after vaccination, stating that she could not move her shoulder and this problem
had been present for 20 days – placing onset on the day of vaccination. Id. And she
continuously and consistently related the onset of her pain to the flu vaccination to her
PCP and orthopedist. Id. She cites Williams v. Sec’y of Health & Human Servs., No. 17-
1046V, 2020 WL 3579763, at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2020) for the proposition
that notations characterizing onset as ‘since,’ ‘after,’ ‘following,’ are best understood as
indicating that onset occurred within 48 hours of vaccination. Id.
Respondent counters that Petitioner’s association of her shoulder pain with
vaccination does not demonstrate Table onset. Respondent’s Brief, filed Mar. 7, 2024, at
*5 (ECF No. 29) (“Br.”). Respondent emphasizes that Petitioner’s first treatment was
almost three weeks after vaccination, at which point she “vaguely” described the onset of
her symptoms as pain that started after vaccination. Br. at *5. And nowhere do the medical
records state that her pain began within 48 hours of vaccination. Id. Respondent takes
6

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 7 of 11
issue with Petitioner’s citation of Williams, noting that the special master in that case relied
in part on the deposition of the petitioner’s PCP, who understood Petitioner to have
reported immediate onset. Br. at *6
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 for shoulder pain only 20 days after vaccination. This timing
does not inherently raise questions about whether Petitioner’s shoulder pain began long
after vaccination. It is common for SIRVA petitioners to delay seeking care for this length
of time – or much longer – because they expect the pain to go away 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 just 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).
Contrary to Respondent’s suggestion, 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 such as the onset of pain is whether the petitioner has demonstrated the
disputed fact by a preponderance of the evidence. Vaccine Act § 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).
Medical record evidence expressly stating that a claimant’s pain began within 48
hours of vaccination would, of course, be strong evidence in favor of such a finding. But
that is not the only way that a claimant can succeed in meeting the onset element. In a
case such as this one, where the medical records do not specify a precise onset date, a
petitioner may nonetheless establish by preponderant evidence that pain began within 48
hours of vaccination. In such cases, I review the medical records for evidence that
supports – or calls into question – whether pain began within that timeframe, and review
testimonial and other evidence to see if it corroborates – or contradicts – the medical
7

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 8 of 11
records. In this case, the medical record evidence, corroborated by testimonial evidence,
leads to the conclusion that, more likely than not, Petitioner’s shoulder pain began within
48 hours of vaccination.
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. 2, 3. She exhibited reduced ROM, and her pain and ROM
limitations were limited to the vaccinated shoulder. Ex. 3 at 35, 44; Ex. 5 at 4, 6, 7. She
received a covered vaccine in the United States. Ex. 1. She experienced residual effects
of her injury for more than six months. Ex. 5 at 7. And she states that she has never
received an award or settlement for her vaccine-related injury or filed a civil action. Ex. 6
at ¶ 6.
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
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.5
5 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.
8

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 9 of 11
B. Parties’ Damages Arguments
Petitioner requests a pain and suffering award of $68,000.00. Mot. at *11. She
relies on my decisions in Russo, Johnson, Dagen, and T.E.6 Id. at 9-11. Her injury
persisted for seven months, during which time she saw her PCP twice, went to an
orthopedist three times, and had one cortisone injection. Id. at *11. She argues that her
case is similar to T.E., Johnson, and Dagen in that she treated with an orthopedic
surgeon. Id. Petitioner also had one steroid injection, while the Russo petitioner “only had
conservative treatment,” presumably meaning no steroid injections. Id. And she treated
for six months, a similar timeframe to the petitioners in T.E. and Johnson. Id.
Respondent proposes an award of no more than $25,000.00 for what he
characterizes as a “mild and limited in duration” injury. Br. at *6. Petitioner’s injury was
treated conservatively over a period of seven months with one prescription medication
and one cortisone injection. Id. at *8. Although a home exercise program was prescribed,
Respondent views it as “impossible to say whether and to what degree she utilized the
program” because this was not monitored. Id. at *8 n.2.
Respondent explains that his position on damages in this case “necessarily factors
in the deficiencies in the evidence that prevented respondent from conceding
entitlement.” Br. at *11. As such, Respondent views Petitioner’s cited cases as “not
comparable” because in those cases, entitlement to compensation had already been
determined. Id. at *9. Indeed, Respondent asserts that “[n]o damages decision in which
entitlement to compensation has already been decided can be truly comparable to this
case given the lack of proof relevant to entitlement” outlined in Respondent’s papers. Id.
at *11.
Respondent nonetheless cites Mejias as a “more comparable” case than the cases
Petitioner cites.7 Br. at *11. Respondent asserts that Mejias is “instructive as a mild SIRVA
that is yet more severe than petitioner’s case,” justifying a lower award in this case. Id.
Respondent adds that Russo is not comparable in that it involved a slightly longer duration
(eight months) with mild to moderate symptoms, the Russo petitioner required more
treatment, and her symptoms impacted her quality of life and persisted beyond treatment.
1995)).
6 Russo v. Sec’y of Health & Human Servs., No. 20-1491V, 2022 WL 4717927 (Fed. Cl. Spec. Mstr. Aug.
31, 2022) (awarding $63,000.00 in pain and suffering); Johnson v. Sec’y of Health & Human Servs., No.
18-1486V, 2021 WL 836891 (Fed. Cl. Spec. Mstr. Jan. 25, 2021) (awarding $65,000.00 in pain and
suffering); Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec.
Mstr. Nov. 6, 2019) (awarding $65,000.00 in pain and suffering); and T.E. v. Sec’y of Health & Human
Servs., No. 19-0633V, 2021 WL 2935751 (Fed. Cl. Spec. Mstr. May 7, 2021) (awarding $70,000.00 in pain
and suffering).
7 Mejias v. Sec’y of Health & Human Servs., No. 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov.
10, 2021) (awarding $45,000.00 in pain and suffering).
9

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Id. at *9. Johnson involves a petitioner who sought treatment just two days after
vaccination – suggesting more severe pain – and who also underwent formal PT. Id. at
*9-10. The Dagen petitioner attended 13 PT sessions, and her pain was initially “fairly
significant” at ten out of ten, though her SIRVA was noted as “less severe.” Id. at *10. And
the T.E. petitioner also attended formal PT (seven sessions). Id.
On reply, Petitioner asserts that Respondent has not cited any reasoned decisions
that support his proposed award of $25,000.00. Petitioner’s Reply, filed March 11, 2024,
at *1 (ECF No. 30) (“Reply”). And the Mejias petitioner did not have any injections or PT,
and had an eight month treatment gap. Reply at *2.
C. Appropriate Compensation for Pain and Suffering
I understand Respondent’s rationale for factoring perceived evidentiary
deficiencies into his damages position, given the posture of this case. However, the
resulting damages analysis tends to be less helpful. Now that I have determined that
Petitioner has indeed shown entitlement to compensation, Petitioner is entitled to
compensation. Weaknesses in evidence that result in Respondent objecting to
compensation may also be relevant to damages – for instance, a lengthy delay in seeking
treatment may impact both Respondent’s willingness to concede entitlement and the pain
and suffering award, in that it could suggest a less severe injury. But the evidentiary
concerns raised by Respondent in this case do not, in my view, bear in any meaningful
way on the factors relevant to damages. In future cases where the parties are directed to
brief both entitlement and damages together, I encourage Respondent to propose the
damages he believes would be appropriate if I were to find that Petitioner is entitled to
compensation.
This case involves a mild SIRVA that was treated conservatively and resolved in
about seven months. Petitioner had moderate pain levels initially, but a steroid injection
less than three months after vaccination provided significant pain relief. Her ROM
restrictions were not severe, and she did not undergo formal PT.
Mejias – the only case Respondent cites – is not a good comparable. Although the
petitioner in that case had a slightly longer injury duration, he also had a lengthy treatment
gap of eight months, with intervening care for other issues – suggesting that he
experienced a long period of relief.
Rather, this case is most similar to Dagen. The Dagen petitioner first sought care
15 days after vaccination, compared to 20 days in this case. Both petitioners’ injuries
resolved in approximately seven months, and both petitioners underwent one steroid
injection. However, the Dagen petitioner also attended two rounds of PT totaling 14
sessions, while Ms. Kelly did not do any formal PT. I find that an award of $55,000.00 in
actual pain and suffering is an appropriate award in this case.
10

Case 1:21-vv-02202-UNJ Document 35 Filed 05/02/25 Page 11 of 11
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 award Petitioner a lump sum payment of $55,000.00, 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.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
11

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DOCUMENT 3: USCOURTS-cofc-1_21-vv-02202-cl-extra-11106351
Date issued/filed: 2025-07-23
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10639764
--------------------------------------------------------------------------------
    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 21-2202V


    THERESA KELLY,
                                                             Chief Special Master Corcoran

                         Petitioner,                         Filed: June 13, 2025
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                        Respondent.


Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.


                       DECISION ON ATTORNEY’S FEES AND COSTS1

      On November 22, 2021, Theresa Kelly 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 vaccine received on September 18,
2020. Petition at 1. On March 18, 2025, I issued a decision finding Petitioner entitled to
compensation and awarding damages, following briefing and Expedited Motions Day
argument by the parties. ECF No. 31.


1Because 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).
       Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $19,745.44 (representing $19,151.60 for attorney’s fees and $593.84 in attorney’s
costs). Petitioner’s Application for Attorneys’ Fees, filed May 20, 2025, ECF No. 36. In
accordance with General Order No. 9, counsel for Petitioner represents that Petitioner
incurred no out-of-pocket expenses. Id. at 2.

       Respondent reacted to the motion on May 21, 2025, indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s
Response to Motion at 2-3, 3 n.2, ECF No. 37. Petitioner has not filed a reply.

       The rates requested for work performed through 2025 are reasonable and
consistent with our prior determinations, and will therefore be adopted.

       I also note this case required additional briefing regarding entitlement and
damages. See Petitioner’s Motion for a Ruling on the Record (“Motion”), filed Dec. 11,
2023, ECF No. 27; Petitioner’s Reply to Respondent’s Response to Motion, filed Mar. 11,
2024, ECF No. 30. Petitioner’s counsel expended approximately 16.3 hours drafting the
entitlement and damages brief and 4.4 hours drafting the responsive entitlement and
damages brief, for a combined total of 20.7 hours. ECF No. 36 at 12. I find this time to
have been reasonably incurred. (And all time billed to the matter was also reasonably
incurred.)

       Furthermore, Petitioner has provided supporting documentation for all claimed
costs, ECF No. 36 at 14-22. And Respondent offered no specific objection to the rates or
amounts sought. ECF No. 37. I have reviewed the requested costs and find them to be
reasonable.

       The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. I award a total of $19,745.44 (representing $19,151.60 for
attorney’s fees and $593.84 in attorney’s costs) to be paid through an ACH deposit
to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of
a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of
Court shall enter judgment in accordance with this Decision.3



3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
                                                 2
IT IS SO ORDERED.


                        s/Brian H. Corcoran
                        Brian H. Corcoran
                        Chief Special Master




                    3