VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00340
Package ID: USCOURTS-cofc-1_22-vv-00340
Petitioner: Lenka Valentine
Filed: 2022-03-29
Decided: 2025-06-18
Vaccine: influenza
Vaccination date: 2020-11-12
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 45000

AI-assisted case summary:
Lenka Valentine filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine received on November 12, 2020. The parties negotiated but reached an impasse, leading to a ruling on entitlement and damages. Valentine received the flu vaccine on November 12, 2020. She reported right shoulder pain to an orthopedist nearly two months later, stating the pain began about two months prior and was related to the vaccine, which she believed was administered in her right arm. She also noted on a physical therapy intake form that her issues began in November 2020, post-flu shot, and at her PT evaluation, she reported pain began one day after vaccination. Respondent argued that Valentine had not established that her pain began within 48 hours of vaccination, as she did not seek treatment until almost two months later. The court found that the evidence preponderantly supported that the vaccine was administered in her right arm and that her shoulder pain likely began within 48 hours of vaccination, despite the treatment delay. The court also found that Valentine met the remaining SIRVA criteria and statutory requirements, establishing entitlement to compensation. For damages, Valentine sought $65,000 for pain and suffering, while Respondent proposed no more than $20,000. The court awarded Valentine $45,000 for actual pain and suffering, finding her SIRVA to be on the milder side and resolved within approximately 11 months, considering comparable cases and the evidence presented.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00340-0
Date issued/filed: 2025-06-18
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 05/16/2025 ) regarding 30 Ruling on Entitlement,, DECISION of Special Master,, Order on Motion for Ruling on the Record, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:22-vv-00340-UNJ Document 31 Filed 06/18/25 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0340V
LENKA VALENTINE, Chief Special Master Corcoran
Petitioner, Filed: May 16, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On March 29, 2022, Lenka Valentine 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 November
12, 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 1:22-vv-00340-UNJ Document 31 Filed 06/18/25 Page 2 of 12
The parties negotiated, but reached an impasse and have now fully briefed
entitlement and damages (ECF Nos. 18-23, 24, 26-29). 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 $45,000.00.
I. Factual Evidence
A. Medical Records
Petitioner received the vaccine alleged as causal on November 12, 2020. Ex. 1 at
4-5. The vaccination record does not indicate the arm of administration. Id.
Just under two months later (January 6, 2021), Petitioner saw orthopedist Dr.
Thomas Klein for right shoulder pain. Ex. 4 at 17. She explained that she received a flu
vaccine two months earlier “she believes in her right arm,” and her pain also began two
months earlier. Id. She described it as a sharp pain in her upper arm, and rated it nine
out of ten. Id. On examination, her right shoulder exhibited limited and painful active range
of motion (“ROM”). Id. at 18. Dr. Klein assessed her with adhesive capsulitis, administered
a cortisone injection, and recommended physical therapy (“PT”). Id. He noted that
following the injection, her forward flexion and abduction were improved, but her external
rotation remained limited. Id.
A month later, on February 8, 2021, Petitioner underwent a PT evaluation for right
shoulder pain. Ex. 5 at 65. Her PT referral lists an injury date of November 12, 2020. Id.
at 53. The “injury/onset/change of status date,” field at the top of the record states
February 6, 2021,3 but in the narrative section below the record clarifies that Petitioner
“got a flu shot November 12th, she was in pain [ever] since then.” Id. The record adds
that her “initial onset [of pain was] 1 day after getting a flu shot in November 2020.” Id. at
67. The record also states (incorrectly) that she had a cortisone injection on February 6,
2021 – the injection was done a month prior, on January 6, 2021. Id. at 65.
At the time of Petitioner’s PT evaluation she had no pain, but it had previously
ranged to seven out of ten at worst, and was aggravated by reaching overhead or
sleeping. Ex. 5 at 65. On examination, her right shoulder active ROM was 123 degrees
in flexion, 103 degrees in abduction, 59 degrees in external rotation, and 79 degrees in
internal rotation, all with pain. Id. at 66. She had reduced strength in both shoulders, with
greater deficits on the right side. Id. Petitioner’s PT intake form indicates that the reason
for her appointment was “right arm (issues since 11/20) - frozen arm post-flu shot.” Id. at
69.
3 It is unclear why this record lists February 6, 2021 here, given that it later says her pain began in
November, and the PT referral lists an injury date of November 12, 2020, has an authorization effective
date of January 6, 2021, and is dated January 27, 2021. Ex. 5 at 53.
2

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Petitioner attended a total of eight PT sessions between February 8 and March 12,
2021. Ex. 5 at 6-68. By the sixth PT session on February 26, 2021, Petitioner had made
“excellent progress” toward her goals. Id. at 32. Her right shoulder active ROM had
changed only slightly, and was now 118 degrees in flexion, 100 degrees in abduction, 70
degrees in external rotation, and 87 degrees in internal rotation. Id. at 35. Petitioner’s
eighth and final PT session was on March 12, 2021. Ex. 5 at 7. She was now noted to
have made “poor progress toward goals.” Id. She continued to have difficulty pulling
equipment for work and pain with prolonged driving, as well as limited active and passive
shoulder ROM.4 Id. Petitioner did not return for additional sessions, and was formally
discharged the following month. Id. at 6.
Petitioner followed up with Dr. Klein on May 17, 2021. Ex. 4 at 15. She had some
improvement initially in PT, followed by a worsening of her pain, although the cortisone
injection had provided significant pain relief. Id. She now rated her pain as six out of ten.
Id. On examination, her right shoulder ROM was 145 degrees in forward flexion and 170
degrees in abduction. Id. Dr. Klein recommended additional PT and stated that next steps
could include a manipulation under anesthesia. Id. at 16. It appears that Petitioner did not
do any further PT.
The following month (June 30, 2021), Petitioner returned to Dr. Klein. Ex. 4 at 10.
Her pain was slightly better (five out of ten), but she still experienced pain at night that
woke her, and could not carry a bag on her shoulder. Id. Dr. Klein ordered an MRI. Id.
The MRI showed moderate tendinopathy of the supraspinatus and infraspinatus tendons,
mild tendinopathy of the subscapularis tendon and along the long head of the biceps
tendon, no discrete rotator cuff tear, mild inflammatory changes within the subacromial
bursa, signal changes within the anterosuperior humeral head, and supraspinatus muscle
atrophy. Id. at 13.
Petitioner followed up with Dr. Klein on October 4, 2021. Ex. 4 at 7. She continued
to have some lasting relief from the cortisone injection, although her symptoms had begun
to affect her sleep again. Id. She rated her pain as five out of ten. Id. On examination, her
right shoulder ROM was “good” but painful. Id. at 8. Dr. Klein discussed the possibility of
surgery and recommended a repeat cortisone injection, but Petitioner declined. Id. He
was unable to exempt her from vaccinations required by her employer, but noted that
because she had experienced an adverse effect from a flu vaccination, she could be
allowed to forego vaccination if she met her employer’s requirements. Id.
The following month, now almost a year after vaccination (November 3, 2021),
Petitioner underwent an annual examination with Dr. Natasha Simmons Wyllie. Ex. 3 at
4 The record states that she had decreased left shoulder ROM. Ex. 5 at 7. However, the remainder of the
record refers to her right shoulder ROM, and Respondent states – and I agree – that the reference to
Petitioner’s left shoulder is likely an error. Resp. at *4 n.2.
3

Case 1:22-vv-00340-UNJ Document 31 Filed 06/18/25 Page 4 of 12
36. Petitioner reported that she had a reaction to a flu vaccine a year ago resulting in
frozen shoulder requiring surgery – although the record does not otherwise support a
finding that Petitioner underwent surgery. Id. She did not report any current shoulder
symptoms, and on examination her ROM was “normal.” Id. at 36-40.
B. Testimonial Evidence
Petitioner has filed two declarations in support of her claim. Exs. 7, 10. In the first,
she states that she received the vaccine at Walgreens at about 5pm, which she describes
as “rush hour,” with a long line of customers. Ex. 7 at ¶ 5. She had her son with her, and
was ready with her right sleeve rolled up for the injection when the pharmacist
approached. Id. at ¶¶ 6-7. Petitioner explains that she was holding her son, and she
“always hold[s] him with [her] left arm” so she can use her right arm to do other things. Id.
Petitioner has also represented that immediately after vaccination, she had a little
bit of redness and “instant pain.” Ex. 10 at ¶ 4. She did not pay much attention to it,
thinking it was normal post-vaccination pain. Id. On the second day, she continued to feel
pain, and the injection site was warm to the touch and red. Id. at ¶ 5. The pain worsened
every day, and she could not sleep at night due to the pain. Id. at ¶ 6.
Petitioner currently works as a medical sales executive, and November and
December are busy months, so she was then unable to see a doctor right away. Ex. 10
at ¶¶ 7, 9. She took ibuprofen daily for pain relief during this time, although it did not help
much. Id. at ¶ 8. When her busy season at work ended, she went to an orthopedist. Id. at
¶ 9.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
preponderantly demonstrate all matters required under Section 11(c)(1), including the
factual circumstances surrounding his or her claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section
13(a)(1). Petitioner’s allegations must be supported by medical records or by medical
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
4

Case 1:22-vv-00340-UNJ Document 31 Filed 06/18/25 Page 5 of 12
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,5 a petitioner must establish that he or she suffered an injury
meeting the Table criteria, in which case causation is presumed, or an injury shown to be
caused-in-fact by the vaccination he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
or condition for more than 6 months after the administration of the vaccine . . . .” Section
11(c)(1)(D).
“[T]he fact that a Petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013, 2019 WL 978825, at *4
(Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (“a discharge
from medical care does not necessarily indicate there are no residual effects”). “A
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,
5 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).
5

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followed by fifteen month gap); Silvestri v. Sec’y of Health & Human Servs., No. 19-
1045V, 2021 WL 4205313 (Fed. Cl. Spec. Mstr. Aug. 16, 2021) (finding severity
requirement satisfied where Petitioner did not seek additional treatment after the five
month mark.
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(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
6

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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 acknowledges that the vaccination record does not state in which arm
she received the vaccine, but requests that I make a factual finding that it was
administered in her right arm. Petitioner’s Motion for a Ruling on the Record, filed Feb.
20, 2024, at *6 (ECF No. 26) (“Mot.”). Petitioner emphasizes that at her first medical
appointment for shoulder pain, she reported right shoulder pain that she related to her
vaccination. Mot. at *6. And she explained that when she received the vaccine, she was
holding her son in her left arm, as she always does – and for that reason, the vaccine was
administered in her right arm. Id.
Petitioner adds that she continuously and consistently related the onset of her
shoulder pain to vaccination, supporting a finding that her pain began within 48 hours of
vaccination. Mot. at *7. She told her orthopedist that her shoulder pain began after
vaccination, and noted on her PT intake form that she had issues with her arm since
November 2020 “post-flu shot.” Id. (citing Ex. 5 at 69). At her PT evaluation, she reported
that her pain began one day after vaccination. Id. (citing Ex. 5 at 67). These records are
supported by her supplemental declaration reporting that she had pain and redness
immediately after vaccination, followed by a worsening of her pain. Id. And she explained
that she was unable to seek care right away because November and December are her
busiest months at work. Id.
Respondent asserts that Petitioner has not preponderantly established that her
shoulder pain began within 48 hours of vaccination, noting that she did not report shoulder
pain until almost two months after vaccination, and even then was unspecific about when
her pain began. Respondent’s Response, filed Apr. 22, 2024, at *8 (ECF No. 28)
(“Resp.”). It was not until almost three months after vaccination that Petitioner reported
that her pain had begun within 48 hours of vaccination. Resp. at *8.
Petitioner replies that treatment delays alone do not undermine an assertion that
a petitioner’s pain began within 48 hours of vaccination, and that it is not unusual for
SIRVA petitioners not to seek immediate medical care. Petitioner’s Reply, filed May 3,
2024, at *2 (ECF No. 29) (“Reply”).
C. Factual Finding on Situs of Vaccine Administration
I find that the record preponderantly supports a finding that Petitioner’s November
12, 2020 vaccine was most likely administered in her right arm. Although the vaccination
record is silent on this matter, in seeking care for her shoulder Petitioner consistently
7

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related her right shoulder pain to the flu vaccine. At her first treatment appointment, she
reported that she believed her flu vaccine had been administered in her right arm, the
vaccine had been administered two months earlier, and her pain began in the same
timeframe. Ex. 4 at 17. At her PT evaluation, she also related her right shoulder pain to
vaccination, explaining that her pain began one day after vaccination. Ex. 5 at 65, 67.
Petitioner’s testimonial evidence further supports this finding. She explains that
she always holds her son in her left arm so that she has the use of her right arm – and
for this reason, she had already rolled up her right sleeve for the vaccination when the
pharmacist approached. Ex. 7 at ¶¶ 6-7. And there is no evidence suggesting that the
vaccine was administered in her left arm.
D. Factual Finding on Onset of Shoulder Pain
A preponderance of the evidence also supports a finding that Petitioner’s right
shoulder pain likely began within 48 hours of vaccination. Although Petitioner did not seek
medical treatment for almost two months post-vaccination, such delay is not uncommon
in SIRVA cases. See 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); Graczyk v. Sec’y of Health & Human Servs., No. 21-0376V, 2023 WL 4573868
(Fed. Cl. Spec. Mstr. June 16, 2023) (finding onset within 48 hours where Petitioner first
sought care two months after vaccination). While this length of treatment delay may have
implications for the severity of the injury – and thus damages – it does not disqualify a
claim if the record otherwise preponderantly supports a finding that the petitioner’s pain
began within 48 hours of vaccination. See Holveck v. Sec’y of Health & Human Servs.,
No. 22-0095V, 2024 WL 5349130, at *7 (Fed. Cl. Spec. Mstr. Dec. 5, 2024) (a three-
month delay in seeking care does not mean the onset of pain was not within 48 hours if
the record otherwise supports such a finding, but may be relevant to damages).
In this case, when Petitioner first sought treatment, she related her right shoulder
pain to her flu vaccination two months earlier. Ex. 4 at 17. The following month, she
explained that she had been in pain ever since her vaccination on November 12, 2020,
specifying that her pain began “1 day after getting a flu shot.” Ex. 5 at 65, 67. Petitioner
explained that November and December are the “busy season” in her work, leading her
to postpone seeking medical care for her shoulder until January. Ex. 10 at ¶¶ 7, 9.
E. Factual Findings on Remaining SIRVA QAI Criteria and Statutory
Requirements
Petitioner’s success in meeting the remaining QAI requirements is not disputed,6
and I find that they have been preponderantly satisfied. The record does not contain
6 Respondent does not raise any arguments concerning the remaining SIRVA Table QAI requirements or
statutory requirements. Resp. at *7-8.
8

Case 1:22-vv-00340-UNJ Document 31 Filed 06/18/25 Page 9 of 12
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.
Exs. 4, 5.
The statutory requirements applicable to all claims are also preponderantly
established. Petitioner received a covered vaccine in the United States. Ex. 1 at 4-5. She
experienced residual effects of her injury for more than six months. Ex. 4 at 15-16. And
she states that she has never received an award or settlement of a civil action for her
vaccine-related injury, nor has she filed a civil action. Ex. 7 at ¶ 10. 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,” in addition to certain unreimbursable
expenses resulting from the vaccine-related injury. Section 15(a)(1), (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.7
B. Parties’ Damages Arguments
Petitioner seeks a pain and suffering award of $65,000.00, relying on decisions in
Russo, Johnson, and Hamilton, which involve awards of $63,000.00, $65,000.00, and
$60,000.00, respectively. Mot. at *10-11.8 Petitioner asserts that she sought care less
7 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3
(Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).
8 Russo v. Sec’y of Health & Human Servs., No. 20-1491V, 2022 WL 4717927 (Fed. Cl. Spec. Mstr. Aug.
31, 2022); Johnson v. Sec’y of Health & Human Servs., No. 18-1486V, 2021 WL 836891 (Fed. Cl. Spec.
9

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than eight weeks after vaccination, had four orthopedic appointments and eight PT
sessions, received a cortisone injection, underwent an MRI, and continued to have
shoulder pain 11 months after vaccination. Mot. at *11. She asserts that her treatment is
similar to Russo and Hamilton in that she also had orthopedic consults and PT, although
Ms. Valentine had an MRI while the Russo petitioner did not. Id. Petitioner does not seek
any other damages (ECF No. 27).
Respondent proposes an award of no more than $20,000.00. Resp. at *9-14.
Respondent views Petitioner’s shoulder injury as mild and requiring limited treatment. Id.
at *10. Petitioner recovered from her injury in under a year, with less than nine months of
treatment including a steroid injection, eight PT sessions, and over the counter
medication. Id. at *11. She was offered, but declined, a second steroid injection. Id. at
*12. Her delay in seeking care also “signals the mild nature” of her injury. Id. at *11 (citing
Shelton v. Sec’y of Health & Human Servs., No. 19-279V, 2021 WL 2550093 (Fed. Cl.
Spec. Mstr. May 21, 2021)). And although Petitioner has offered a reasonable explanation
for her treatment delay – work commitments – Respondent asserts that she nonetheless
was able to manage her pain with over the counter medication during that time. Id. at *11-
12.
In Respondent’s view, the cases Petitioner cites are not comparable because of
Respondent’s concession. Resp. at *12. Respondent asserts that his position on
damages “necessarily factors in the deficiencies in the evidence that prevented
respondent from conceding entitlement to compensation.” Id. at *14. Furthermore, the
petitioners in all three cases reported their shoulder pain sooner. Id. at *13. Respondent
adds that he routinely proffers less than $37,500.00 “when it is clear that damages are
worth less than in the lowest reasoned pain and suffering awards,” citing McKenna,
Valdez, and McGraw.9 Resp. at *14.
Petitioner replies that Valdez is distinguishable, as that petitioner’s care was limited
to two visits to her primary care provider and one to an orthopedist; the petitioner declined
a steroid injection and PT. Reply at *3. And even so, that petitioner was awarded
$35,000.00 – more than Respondent’s proposed award in this case. Id. The McGraw
petitioner treated with one visit to an orthopedist, an MRI, and seven acupuncture
Mstr. Jan. 25, 2021); Hamilton v. Sec’y of Health & Human Servs., No. 21-0346V, 2023 WL 4635923 (Fed.
Cl. Spec. Mstr. June 14, 2023).
9 McKenna v. Sec’y of Health & Human Servs., No. 21-30V, 2023 WL 5045121 (Fed. Cl. Spec. Mstr. July
7, 2023) (identifying proffered cases with awards less than $37,500.00); Valdez v. Sec’y of Health & Human
Servs., No. 21-394V, 2024 WL 1526536 (Fed. Cl. Spec. Mstr. Feb. 28, 2024) (pain and suffering award of
$35,000.00); McGraw v. Sec’y of Health & Human Servs., No.21-72V, 2024 WL 1160065 (Fed. Cl. Spec.
Mstr. Feb. 15, 2024) (awarding $37,500.00 for mild SIRVA lasting approximately six months with very
conservative treatment).
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sessions over a five month period – and also received a higher award than Respondent
proposes. Id.
C. Appropriate Compensation for Pain and Suffering
I find that the evidence preponderantly supports a finding that Petitioner’s SIRVA
was on the milder side, and resolved within approximately 11 months. Although she
reported a high pain rating of nine out of ten at her first appointment, a cortisone injection
that day improved her pain levels and ROM, and thereafter her pain ratings were lower.
The best comparables cited by the parties are Johnson and McGraw. Ms.
Valentine and the Johnson petitioner had similar treatment, with both undergoing one
cortisone injection and similar amounts of PT. The Johnson petitioner also received oral
steroid medication and prescription pain medication, and – significantly – sought care only
two days after vaccination – suggesting a more severe injury. The Johnson petitioner
stopped seeking treatment – suggesting that her condition was largely resolved – after
approximately six months. However, the Johnson petitioner continued to report shoulder
pain more than two years later (without seeking additional treatment). Thus, the Johnson
petitioner treated for a shorter period than Ms. Valentine, but had residual pain for longer.
Petitioner’s case bears similarities to McGraw as well. A key similarity is that both
petitioners delayed seeking care for nearly two months. Although individuals have varying
pain thresholds and circumstances, I find that the similar treatment delay suggests that
their injuries had some similarities in terms of their impact on the petitioner’s life, and
personal determination as to how urgently medical attention was needed. However, the
McGraw petitioner stopped treatment just over five months after vaccination. For this
reason, a ruling was needed on the question whether the McGraw petitioner had satisfied
the statutory severity requirement. Although that petitioner had a reasonable explanation
for stopping treatment – the start of the COVID-19 Pandemic – the evidence supports a
finding that the McGraw petitioner’s injury abated sooner than Ms. Valentine’s.
Additionally, the McGraw petitioner’s ROM limitations were mild enough that this too
required a fact ruling.
To the extent that Respondent argues that the mere fact that he did not concede
entitlement warrants a lower damages award, the better approach is a more nuanced
analysis. Evidentiary weaknesses that cause Respondent not to concede entitlement may
– but do not necessarily – also affect damages valuation. Kelly v. Sec’y of Health &
Human Servs., No. 21-2202V, 2025 WL 1276206, at *7 (Fed. Cl. Spec. Mstr. Mar. 18,
2025). In this case, Petitioner’s treatment delay is relevant not only to entitlement, but
also damages: Petitioner’s nearly two-month delay in seeking care suggests that she was
not incapacitated or alarmed enough to need immediate care. However, the fact that the
vaccine administrator did not record the situs of vaccine administration is relevant to
entitlement but not damages. A vaccine administrator’s failure to record, or to correctly
record, the situs of vaccine administration is a discrete event that occurs
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contemporaneously with vaccination, and generally does not provide information relevant
to the pain and suffering of the petitioner thereafter.
Taking the record as a whole and the proposed comparable cases into
consideration, I find that $45,000.00 represents a fair pain and suffering award in this
case.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I GRANT Petitioner’s motion for a ruling on the record, and find that
Petitioner suffered an injury that meets the definition for a Table SIRVA and is
entitled to compensation. I find that $45,000.00 represents a fair and appropriate
amount of compensation for Petitioner’s actual pain and suffering.10
Based on consideration of the record as a whole and arguments of the parties, I
award Petitioner a lump sum of $45,000.00, 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
12