VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00215
Package ID: USCOURTS-cofc-1_22-vv-00215
Petitioner: Shannon McDonald
Filed: 2022-02-25
Decided: 2025-03-11
Vaccine: influenza
Vaccination date: 2020-12-30
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 116102

AI-assisted case summary:
Shannon McDonald filed a petition for compensation under the National Vaccine Injury Compensation Program on February 25, 2022. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination received on December 30, 2020. Petitioner stated that her SIRVA symptoms lasted longer than six months. The respondent filed a Rule 4(c) report conceding that Petitioner was entitled to compensation, finding her alleged injury consistent with SIRVA as defined by the Vaccine Injury Table. The respondent agreed that Petitioner had satisfied all legal prerequisites for compensation. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on January 3, 2024, finding Petitioner entitled to compensation. The parties were unable to resolve the appropriate amount of damages, leading to a decision on damages. Petitioner, a 38-year-old nurse, received the flu shot in her left arm on December 30, 2020. Approximately two weeks later, on January 13, 2021, she reported progressively worsening pain after the vaccination to her primary care provider, who noted decreased range of motion, bony tenderness, and pain. She was prescribed naproxen and sent for x-rays. The following day, she saw an orthopedist, complaining of two weeks of shoulder pain that occurred immediately after the flu shot, describing the vaccination site as "up near the subacromial space." The orthopedist assessed bursitis and administered a cortisone injection. Petitioner began physical therapy on February 5, 2021, reporting continued pain despite the injection. Her range of motion was limited, and her strength diminished. She completed eight physical therapy sessions by April 5, 2021. She returned to her orthopedist on March 25, 2021, reporting persistent pain, and an MRI was ordered, which showed no concerning pathology. On June 8, 2021, she reported increased pain after holding her son, experiencing pain with all use of her left arm. The diagnosis was shoulder impingement, and she received a second cortisone injection and was referred back to physical therapy. On June 28, 2021, she reported pain so severe she could not continue working, with a diagnosis of impingement, bursitis, and arthritis. Surgery was recommended and performed on July 6, 2021, consisting of arthroscopic debridement of a labral tear and rotator cuff, subacromial bursectomy, subacromial decompression and acromioplasty, and open resection of the distal clavicle. Post-operative follow-ups showed improvement but some deficits. She returned to physical therapy on August 5, 2021, completing twelve sessions through October 21, 2021, but experienced a six-week break due to insurance issues and continued to have limitations. She was cleared to return to work on October 4, 2021. Petitioner sought $135,000.00 for pain and suffering, citing her significant treatment, continued symptoms, and comparing her case to six prior SIRVA cases with awards ranging from $110,000.00 to $135,000.00. Respondent proposed $90,000.00 for pain and suffering, characterizing her SIRVA as mild to moderate with a ten-month duration and arguing some surgical procedures were not SIRVA-related. Chief Special Master Brian H. Corcoran awarded Shannon McDonald a total of $116,102.76. This included $115,000.00 for pain and suffering and $1,102.76 for past unreimbursed medical expenses. The award was based on the severity and duration of her symptoms, the extent of her treatment including surgery, and comparisons to prior SIRVA cases, finding her situation similar to the Issertell case but justifying a slightly higher award due to more treatment and residual deficits. Petitioner was represented by Paul R. Brazil of Muller Brazil, LLP, and Respondent was represented by Felicia Langel of the U.S. Department of Justice. The decision was issued on March 11, 2025.

Theory of causation field:
Shannon McDonald, age 38, received an influenza vaccination on December 30, 2020. Approximately two weeks later, she developed shoulder pain consistent with Shoulder Injury Related to Vaccine Administration (SIRVA), as defined by the Vaccine Injury Table. The respondent conceded entitlement. The parties litigated damages, with Petitioner seeking $135,000 for pain and suffering and Respondent proposing $90,000. Petitioner's treatment included pain medication, physical therapy (20 sessions), two cortisone injections, an MRI, and arthroscopic surgery for a labral tear, rotator cuff issues, bursitis, and decompression. The Special Master reviewed prior SIRVA cases, including Kestner (awarded $115,000 for one injection, 36 PT sessions, one surgery over eight months) and Issertell (awarded $112,500 for one injection, 14 PT sessions, one surgery). Chief Special Master Brian H. Corcoran awarded $115,000 for pain and suffering and $1,102.76 for past unreimbursed medical expenses, totaling $116,102.76, finding Petitioner's case warranted a slightly higher award than Issertell due to more treatment and residual deficits. Petitioner was represented by Paul R. Brazil (Muller Brazil, LLP) and Respondent by Felicia Langel (U.S. Department of Justice). Decision issued March 11, 2025.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00215-0
Date issued/filed: 2024-02-07
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 01/03/2024) regarding 26 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:22-vv-00215-UNJ Document 28 Filed 02/07/24 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0215V
SHANNON MCDONALD, Chief Special Master Corcoran
Petitioner, Filed: January 3, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On February 25, 2022, Shannon McDonald filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) following an influenza vaccination she received on December
30, 2020. Petition at 1. Petitioner further alleges that her SIRVA symptoms have lasted
longer than six months. Petition at ¶13. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On December 22, 2023, Respondent filed his Rule 4(c) report in which he
concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c)
Report at 1. Respondent states that Petitioner’s alleged injury is consistent with SIRFA
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:22-vv-00215-UNJ Document 28 Filed 02/07/24 Page 2 of 2
as defined by the Vaccine Injury Table. Specifically, Petitioner had no history of pain,
inflammation, or dysfunction of her left shoulder prior to vaccination; pain occurred within
48 hours after receipt of an intramuscular vaccination; pain was limited to the shoulder in
which the vaccine was administered; and no other condition or abnormality has been
identified to explain Petitioner’s shoulder pain.” Id. at 4. Respondent further agrees that
“Petitioner has satisfied all legal prerequisites for compensation under the Act.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_22-vv-00215-1
Date issued/filed: 2025-03-11
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 02/05/2025) regarding 39 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:22-vv-00215-UNJ Document 43 Filed 03/11/25 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0215V
SHANNON MCDONALD, Chief Special Master Corcoran
Petitioner, Filed: February 5, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 25, 2022, Shannon McDonald filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) following an influenza vaccination she received on December
30, 2020. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters, and although entitlement was conceded in Petitioner’s
favor, the parties could not resolve the appropriate amount of damages to be awarded.
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the total amount of $116,102.76, comprised of $115,000.00 for actual pain
and suffering, plus $1,102.76 in past unreimbursed medical expenses.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:22-vv-00215-UNJ Document 43 Filed 03/11/25 Page 2 of 9
I. Relevant Procedural History
Although Respondent conceded that Petitioner is entitled to compensation, the
parties reached an impasse in their damages discussions. Petitioner filed a Brief in
Support of Damages (“Br.”) on February 21, 2024. ECF No. 30. Respondent filed a
responsive brief (“Resp.”) on April 5, 2024. ECF No. 31. I subsequently proposed that the
parties be given the opportunity to argue their positions at a “Motions Day” hearing, at
which time I would decide the disputed damages issues. ECF. No. 32. That hearing was
held on December 19, 2024,3 and the case is now ripe for a written determination.
II. Relevant Medical History
Petitioner, a 38-year-old nurse, had a flu shot in her left arm on December 30,
2020. Ex. 1 at 3. Two weeks later, on January 13, 2021, she had a telehealth appointment
with her primary care provider (“PCP”) during which she reported progressively worsening
pain after her flu shot. Ex. 2 at 23. The doctor noted decreased range of motion, bony
tenderness, and pain. Id. at 24. Petitioner was advised to use warm compresses, was
prescribed naproxen, and was sent for x-rays. Id. at 23.
The following day (January 14, 2021), Petitioner saw an orthopedist to whom she
complained of two weeks of shoulder pain that “occurred immediately after getting a flu
shot.” Ex. 3 at 40. She described the positioning of her vaccination as “up near the
subacromial space.” Id. On exam, she had painful arc, “marked impingement signs,” and
pain with range of motion. Id. Petitioner was assessed with bursitis and given a cortisone
injection. Id. at 41.
Petitioner began physical therapy on February 5, 2021. Ex. 4 at 18. She reported
that the cortisone injection had helped her range of motion, but she continued to have
pain both at rest and with activity. Id. Petitioner’s left shoulder range of motion was limited
and her strength was diminished during the exam. Id. at 19. She had a total of eight
physical therapy sessions through April 5, 2021. Id. at 62. At the time of her discharge,
she had met three out of six therapy goals. Id. at 58.
Petitioner returned to her orthopedist on March 25, 2021 reporting “some
persistent pain” and a “mild setback.” Ex. 3 at 30. An MRI was ordered. Id. Although the
MRI was incomplete, there was no evidence of concerning pathology. Id. at 27.
3 At the end of the hearing held on December 19, 2024, I issued an oral ruling from the bench on damages
in this case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the
case’s docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2

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Just over two months later, on June 8, 2021, Petitioner returned to the orthopedist.
Ex. 3 at 23. She reported that her shoulder pain was aggravated one week prior, after
holding her 2-year-old son. Id. She explained that she had previously been managing her
shoulder pain with a home exercise program and Mobic. Id. At the time, she had pain with
all use of her left arm (her dominant side). Id. On exam, she was able to reach full range
of motion, but with pain, and had pain with impingement testing. Id. The diagnosis was
with shoulder impingement and Petitioner was given a second cortisone injection and
referred back to physical therapy. Id. at 24. She returned a week later, on June 28, 2021
with pain so severe that she expressed that she could not continue working. Ex. 3 at 20.
She was diagnosed with impingement, bursitis, and arthritis of the left shoulder. Id. at 22.
Surgery was recommended and scheduled. Id.
Petitioner underwent arthroscopic surgery on July 6, 2021. Ex. 3 at 18-19. Surgery
consisted of debridement of a labral tear, debridement of the rotator cuff, subacromial
bursectomy, subacromial decompression and acromioplasty, and open resection of distal
clavicle. Id.
Petitioner had post-operative follow-ups with her orthopedist on July 8, July 26,
August 23, and September 27, 2021. Ex. 3 at 5, 9, 13, 16. At the final appointment, the
doctor noted improvement, but still some deficits. Id. at 5. She was allowed to return to
work as of October 4, 2021. Id.
Petitioner returned to physical therapy on August 5, 2021. Ex. 4 at 63. She
completed twelve post-surgical physical therapy sessions through October 21, 2021. On
September 8, 2021, she reported pain of 1/10 at best and 6/10 at worst, and had made
some progress toward her therapy goals. Id. at 115. The plan of care from Petitioner’s
final session on October 21, 2021 noted that she had taken a six week break from therapy
due to insurance issues. Ex. 3 at 7. At that time, she continued to have limitations with
range of motion and additional treatment was planned. Id.
There are no additional treatment records.
III. The Parties’ Arguments
A. Petitioner
Petitioner seeks an award of $135,000.00 for her pain and suffering. Br. at 1. In
her brief and argument, Petitioner highlights her significant treatment as well as her
continued symptoms at the time of her last treatment, including pain up to 6/10 in intensity
and limited range of motion. Br. at 6-7. Petitioner cited six prior SIRVA cases that involved
injured claimants with awards ranging from $110,000.00 to $135,000.00. Br. at 4-6.
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B. Respondent
Respondent proposes a pain and suffering award of $90,000.00. Resp. at 2. He
characterizes Petitioner’s SIRVA as “mild to moderate,” with a relatively short duration of
ten months. Id. at 5. He further argues that some of the surgical procedures were “most
likely not SIRVA-related.” Id. Respondent also distinguishes Petitioner’s cited prior SIRVA
cases, noting that, generally, those petitioners had more treatment over longer periods of
time. Id. at 6-8.
IV. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
Special masters may also consider prior pain and suffering awards to aid in
determining the appropriate amount of compensation for pain and suffering in a case.
See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding
that “there is nothing improper in the chief special master’s decision to refer to damages
for pain and suffering awarded in other cases as an aid in determining the proper amount
of damages in this case”). And, of course, I may rely on my own experience (along with
4

Case 1:22-vv-00215-UNJ Document 43 Filed 03/11/25 Page 5 of 9
my predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013).
The Graves court maintained that to do so resulted in “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared
to the most extreme cases and reduced accordingly.” Id. at 590. Instead, Graves
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap. Although Graves is not
controlling of the outcome in this case, it provides reasoned guidance in calculating pain
and suffering awards.
V. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2024, 4,138 SPU SIRVA cases have resolved since the inception of SPU ten
years before. Compensation has been awarded in the vast majority of cases (4,016), with
the remaining 122 cases dismissed.
2,308 of the compensated SPU SIRVA cases were the result of a reasoned ruling
that the petitioner was entitled to compensation (as opposed to an informal settlement or
concession).6 In only 235 of these cases, however, was the amount of damages also
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 The remaining 1,708 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
5

Case 1:22-vv-00215-UNJ Document 43 Filed 03/11/25 Page 6 of 9
determined by a special master in a reasoned decision.7 As I have previously stated, the
written decisions setting forth such determinations, prepared by neutral judicial officers
(the special masters themselves), provide the most reliable guidance in deciding what
similarly-situated claimants should also receive.8
The data for all categories of damages decisions described above reflect the
expected differences in outcome, summarized as follows:
Damages Proffered Stipulated Stipulated9
Decisions by Damages Damages Agreement
Special Master
Total Cases 235 2,044 29 1,708
Lowest $35,000.00 $10,000.00 $45,000.00 $2,500.00
1st Quartile $67,910.00 $60,539.19 $90,000.00 $35,000.00
Median $85,920.03 $80,240.98 $130,000.00 $50,000.00
3rd Quartile $125,066.35 $109,681.54 $162,500.00 $77,500.00
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 235 SPU SIRVA cases in which damages were the result of a reasoned
decision, compensation for a petitioner’s actual or past pain and suffering varied from
$35,000.00 to $215,000.00, with $85,000.00 as the median amount. Only ten of these
cases involved an award for future pain and suffering, with yearly awards ranging from
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
7 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (2,044 cases) or stipulation (29 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
8 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or
proffer) must still be approved by a special master, such determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases,
these determinations nevertheless “provide some evidence of the kinds of awards received overall in
comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed
upon by the parties and cases in which damages are determined by a special master).
9 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
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$250.00 to $1,500.00.10 In one of these cases, the future pain and suffering award was
limited by the statutory pain and suffering cap.11
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In eight cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
VI. Appropriate Compensation in this Case
A. Pain and Suffering
When determining the appropriate amount of compensation for a petitioner’s pain
and suffering, I review the entire record, along with all assertions made by the parties in
10 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
11 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr.
Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in
Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A));
see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the
application of the statutory cap before any projected pain and suffering award is reduced to net present
value).
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their written and oral arguments. I also consider prior awards for pain and suffering in
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the specific circumstances of this case.
In this case, there is no dispute of the Petitioner’s awareness of her injury. The
parties also generally agree on Petitioner’s course of treatment, which included treatment
within two weeks; prescription medications; one MRI; two cortisone injections; an
arthroscopic surgery; and twenty physical therapy treatments (8 before and 12 after
surgery) over a ten-month period.
Both parties have provided reasonable arguments based on prior SIRVA cases to
justify their proposed awards for pain and suffering. Both relied on Kestner v. Secretary
of Health & Human Services, No. 20-0025V, 2022 WL 2447499 (Fed. Cl. Spec. Mstr. Mar.
10, 2023), in which I awarded $115,000.00 in pain and suffering to a petitioner who had
one cortisone injection, 36 physical therapy sessions, and one surgery over an eight-
month period. Petitioner argues that her injury was more severe than that of the Kestner
petitioner because she required two cortisone injections, had a longer treatment course,
and suffered more severe ongoing symptoms, and that her inability to work for five months
is evidence of “the debilitating nature of her pain.” Id. at 6-7. Respondent, in contrast,
argues that the Kestner petitioner’s injury was more severe because she had “more than
twice as many” physical therapy treatments, lost work, and her surgery was fully related
to her SIRVA, rather than non-SIRVA pathology. Resp. at 7-8.
While Respondent makes valid points in his argument, he has not successfully
established in this case the type of extraordinary circumstances that would require a
downward departure as low as $90,000.00 for a SIRVA that required surgical treatment.
But Petitioner’s request is nevertheless somewhat high (and even higher than Kestner).
I find Petitioner’s situation to be similar to Issertell v. Sec’y of Health & Human
Servs., No. 20-0099V, 2022 WL 2288247 (Fed. Cl. Spec. Mstr. May 17, 2022), in which I
awarded $112,500.00 for pain and suffering. The Issertell petitioner sought treatment
within 15 days of vaccination, had one MRI, one cortisone injection, an arthroscopic
surgery, and 14 physical therapy sessions. Id. at *2-6. At the conclusion of her treatment,
Ms. Issertell had “near normal” range of motion and was able to do all daily activities,
including going to the gym. Id. at *6. While Petitioner experienced a similar course, her
injury required somewhat more treatment than did Ms. Issertell, with two cortisone
injections and 20 physical therapy sessions. Further, at the end of treatment Ms.
McDonald still had pain and range of motion deficits that both her orthopedist and physical
therapist believed required additional treatment. See Ex. 3 at 5, 7. These facts justify a
slightly higher award in this case.
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Case 1:22-vv-00215-UNJ Document 43 Filed 03/11/25 Page 9 of 9
Therefore, based on the record as a whole and on the parties respective
arguments, I find that $115,000.00 in compensation for past pain and suffering is
reasonable and appropriate in this case.
B. Unreimbursed Expenses
After the hearing in this case, the parties reached an agreement that Petitioner
should be awarded $1,102.76 in past unreimbursed out-of-pocket expenses. See
ECF No. 38. Therefore, Petitioner is awarded said amount without adjustment.
Conclusion
In light of all of the above, I award Petitioner a lump sum payment of
$116,102.76, comprised of $115,000.00 for pain and suffering and $1,102.76 for past
unreimbursed expenses, to be paid through an ACH deposit to Petitioner’s
counsel’s IOLTA account for prompt disbursement to Petitioner, Shannon
McDonald. This amount represents compensation for all damages that would be
available under Section 15(a) of the Vaccine Act. Id.
The Clerk of Court is directed to enter judgment in accordance with this Decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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