VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00401
Package ID: USCOURTS-cofc-1_22-vv-00401
Petitioner: Jason Brose
Filed: 2022-04-07
Decided: 2026-03-19
Vaccine: influenza
Vaccination date: 2020-11-09
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 48000

AI-assisted case summary:
Jason Brose filed a petition alleging that an influenza vaccine he received on November 9, 2020, caused a left shoulder injury related to vaccine administration (SIRVA). Mr. Brose, a 40-year-old male, had a history of left shoulder pain dating back to 2000, including diagnoses of calcific tendonitis and rotator cuff syndrome, but his symptoms had resolved in the years prior to vaccination. He reported immediate pressure and pain after the injection, which intensified over the following days. He sought medical attention six weeks later, reporting sudden onset of pain that had been occurring for six weeks. His orthopedist diagnosed acute shoulder bursitis secondary to the injection being administered too high, likely into the subacromial space. Mr. Brose underwent conservative treatment including physical therapy and two cortisone injections over an eight-and-a-half-month period, with a significant gap in treatment. The court found that Mr. Brose met the criteria for a Table SIRVA, including no prior history that would explain the post-vaccination symptoms and onset of pain within 48 hours. He was awarded $48,000.00 for past pain and suffering.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00401-0
Date issued/filed: 2026-04-21
Pages: 17
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/19/2026) 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. (ppa) Service on parties made.
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Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0401V
JASON BROSE,
Petitioner, Chief Special Master Corcoran
v.
SECRETARY OF HEALTH AND Filed: March 19, 2026
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle, LLC, Philadelphia, PA, for Petitioner.
Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On April 7, 2022, Jason Brose 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 alleged that as a result of an influenza (“flu”) vaccine he received on
November 9, 2020, he suffered a left shoulder injury related to vaccine administration
(“SIRVA”) as defined by the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at
Preamble. The case was assigned to the Special Processing Unit (“SPU”) of the Office of
Special Masters.
For the reasons set forth below, I find it most likely that Petitioner’s history of left
shoulder symptoms does not explain the alleged signs, symptoms and findings after
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012).

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 2 of 17
vaccine injection, that Petitioner suffered the onset of his shoulder pain specifically within
48 hours of vaccination, and that he is otherwise entitled to compensation. I also find that
Petitioner should be awarded $48,000.00 for his actual pain and suffering.
I. Relevant Procedural History
This claim was initiated on April 7, 2022, and relevant medical records were filed
thereafter. ECF No. 1-8, 17-18. Although the parties attempted to informally resolve this
case, they were unable to do so. Petitioner filed a Motion for Ruling on the Record and
Brief in Support of Damages (“Mot.”) on September 25, 2023. ECF No. 25. Respondent
filed his Rule 4(c) Report and Response to Petitioner’s Motion (“Opp.”) on November 27,
2023, ECF No. 34. Petitioner filed a Reply (“Reply”) on December 10, 2023, ECF No. 28.
II. Relevant Medical History
Pre-vaccination History
For many years, Mr. Brose has experienced various left shoulder symptoms. In
September 2016, while attending physical therapy (“PT”) for complaints of left shoulder
pain, Mr. Brose told his physical therapist that he had chronic left shoulder pain and that
“[a]bout 16 years ago he had a cortisone shot in the left shoulder and was told he had
bicipital tendonitis.” Exhibit (“Ex.”) 4 at 17, 19. However, he also stated that the “pain had
resolved over time,” and that he and his wife were working out again and using weights
and doing pushups. Id. Petitioner reported that he had a recent MRI of his left shoulder
which showed calcific tendonitis, and that he had also recently received a cortisone
injection to his left shoulder. See Id. Mr. Brose attended seven PT sessions for his left
shoulder through November 21, 2016. Id. at 4.
One year later, on December 5, 2017, Mr. Brose returned to PT for complaints of
left shoulder pain. Ex. 4 at 125. He reported that his left shoulder pain began the prior
March and that he had problems sleeping, reaching, and worsening range of motion
(“ROM”). Id. Petitioner stated that he had received a cortisone injection six weeks prior
that improved some of his pain. Id. A recent x-ray was consistent with calcific tendonitis,
and Mr. Brose reported that his doctor had diagnosed him with left rotator cuff syndrome,
calcific tendonitis, and mild adhesive capsulitis. Id. On exam, Petitioner had positive
impingement testing and some tenderness. Id. at 126-27. The PT assessment was left
rotator cuff syndrome, left impingement syndrome, and possible left labral pathology. Id.
at 127. Petitioner attended six PT sessions for his left shoulder and was discharged on
January 23, 2018. See id. at 110-11.
2

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 3 of 17
Post-Vaccination
More than two and a half years later, on November 9, 2020, Mr. Brose (40 years
old) received an intramuscular flu vaccine in his left deltoid from Acme Pharmacy located
in Chester Springs, Pennsylvania. Ex. 1 at 7. In his affidavit, Petitioner stated
Both the nurse and I were sitting down when she injected the influenza
vaccine into my left shoulder. Immediately this injection did not feel like past
injections, meaning that I felt a lot of pressure and it almost felt as if I could
feel the actual vaccine being plunged into my shoulder joint. The nurse
placed a band aid over the injection site and told me that “it may hurt for a
day or two.”
After getting the flu shot, my left shoulder felt sore and painful that same
day, and I was experiencing pain in the shoulder that I had never
experienced with prior vaccinations. Over the following couple of days, my
left shoulder pain began to really intensify and worsen. The pain did not feel
like routine shoulder discomfort from a flu shot and I had never had this level
of pain after a vaccine before. However, I was told by the nurse that this
was common, and it would hurt for a couple of days. However, after waiting
for a couple of weeks, the pain had not subsided at all and in fact, the pain
was getting progressively worse. My left arm and shoulder were in constant
pain all day long and I could barely raise my left arm.
Ex. 2 at 1-2.
About six weeks after vaccination, on December 23, 2020, Mr. Brose saw
orthopedist Kelly Murray, M.D., for “sudden” left shoulder pain, and reported:
History of Present Illness (Kelly Murray MD; 12/30/2020 2:45 PM) The
patient is a 40 year old male who presents with a complaint of shoulder pain.
The onset of the shoulder pain has been sudden and has been occurring
for 6 weeks. The course has been gradually improving. The shoulder pain
is mild to moderate. The shoulder pain is characterized as a dull aching.
The shoulder pain is described as being located in the left shoulder …
Patient reports that he received a flu vaccine on November 9th at a local
pharmacy. He reports the vaccine was placed higher than typically and had
a weird sensation in his shoulder at the time of injection. He subsequently
was unable to raise his left arm a few days after the injection. He reports
that his symptoms have slowly improved with time. Advil helps the
3

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 4 of 17
symptoms as well as stretching. He was seen here for his left shoulder in
November of 2017 with similar symptoms. At that time he was treated with
a cortisone injection and physical therapy. He reports no trouble with the
shoulder until this flu vaccination. He is right-hand dominant and works in
sales…
Ex. 3 at 8. On exam, Petitioner’s ROM was normal, and he had no impingement signs.
Id. Dr. Murray diagnosed Mr. Brose with left shoulder bursitis and noted that Petitioner
“developed an acute shoulder bursitis secondary to his flu vaccination being done too
high and likely was injected into the subacromial space.” Id. A subacromial cortisone
injection was administered to Petitioner’s left shoulder, and he was referred to PT. Id.
Mr. Brose began left shoulder PT on December 29, 2020, at Kinetic Physical
Therapy. Ex. 3 at 16. The notes from this visit state:
Assessment/Diagnosis: The pt is a 40 y/o male who presents to Kinetic
with a diagnosis of LUE pain with an insidious onset. The pt reported that
he thinks it all started after he received a flu shot which occurred sometime
on or around November 9th and then a few days later the pain into the L
shoulder started. From that point, he had an insidious and consistent pain
in the left shoulder that has affected his ability to exercise and sleep.
Pain:7/10 worst and 3/10 at best.
Ex. 4 at 183. The physical therapist indicated that Mr. Brose had “a history of [the] present
problem,” but that there were no factors that would impact the plan of treatment. Id. On
exam, Petitioner had some reduced ROM in his left shoulder relative to his right, and one
positive left shoulder impingement test. Id.
On December 30, 2020, Mr. Brose returned to Dr. Kelly Murray, who noted
Petitioner’s ongoing issues and recommended another cortisone injection:
Based on patient’s history and symptoms, I explained that he developed
acute shoulder bursitis secondary to his flu vaccination being done too high
and likely was injected into the subacromial space. His symptoms have
definitely improved with time and taking Advil. We discussed the option of
the cortisone injection as he is still having difficulty with sleep at night. He
ultimately elected to proceed with another injection.
Ex. 3 at 8. Petitioner was encouraged to continue with PT, and was to be reevaluated
after six weeks. Id.
4

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 5 of 17
Mr. Brose attended nine PT sessions through January 28, 2021. Ex. 4 at 134-66.
At his eighth appointment on January 25, 2021, Mr. Brose reported that he had tried circuit
training with overhead dumbbell shoulder presses. Ex. 4 at 142. Although he “had
difficulty locking out the [dumbbell] shoulder press at first,” he “was able to lockout fully
from reps 5-10.” Id. Petitioner was discharged to a home exercise program on January
28, 2021. Id. at 139. He subjectively reported a 50% improvement in symptoms. Id. at
136. On exam, his left shoulder ROM was within functional limits, but he still had some
slight reduction in left shoulder strength relative to his right. Id. at 137. In terms of his long-
and short-term goals, petitioner was at 95% towards reducing his pain to 0/10 at rest. Id.
at 139. He had met his goal of restoring his ROM and was at 80% towards his goal of
reducing pain with activities to 0/10, and 90% towards his goal of restored left shoulder
strength. Id.
However, on February 3, 2021, Mr. Brose returned to Dr. Murray in follow-up. Ex.
3 at 6. Although Dr. Murray noted that Petitioner’s “course has been gradually improving,”
Mr. Brose reported “no significant improvement with his symptoms.” Id. Petitioner stated
that the cortisone injection did not help and that PT had aggravated his shoulder. Id. On
examination, Petitioner had normal left shoulder strength but some reduced ROM on
exam. Id. Dr. Murray recommended additional MRI imaging because Petitioner’s exam
was “suggestive of some biceps labral complex signs,” as well as a possible superior
labrum anterior-to-posterior (“SLAP”) tear of the left shoulder. Id. at 7. Dr. Murray
counseled Petitioner to stop PT and prescribed a Medrol Dosepak. Id.
Mr. Brose did not seek medical treatment for his left shoulder for the next four-and-
a-half months. On July 26, 2021, Petitioner returned to see Dr. Murray, who diagnosed
him with a superior glenoid labrum lesion of the left shoulder. Ex. 7 at 7. Mr. Brose
reported a dull pain in his left shoulder and clicking. Id. He had not undergone the
previously recommended MRI because he was reportedly concerned about the cost. Id.
Dr. Murray again encouraged Petitioner to obtain another MRI of his left shoulder. Id. at
8. No additional records have been filed.
In his affidavit, Mr. Brose states that he has experienced ongoing pain, suffering,
discomfort, and decreased range of motion in his shoulder since the onset of his shoulder
injury and he still experiences significant residual effects. Id. at 3. He describes difficulty
sleeping and with his daily routine, as well as trouble living a full life due to his ongoing
and persistent shoulder injury. Id. Petitioner states that he is unable to engage in activities
that were once a great joy for him, such as tennis, fishing, baseball, and golfing, and he
is also unable to do yard work, and other maintenance around the house due to his
shoulder injury. Id. at 5.
5

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 6 of 17
III. Applicable Law
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “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 & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “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 & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
6

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 7 of 17
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
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.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
Analysis
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
petitioner must establish that he 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 received. Section 11(c)(1)(C).
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
3 In summary, a petitioner must establish that she 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; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
7

Case 1:22-vv-00401-UNJ Document 36 Filed 04/21/26 Page 8 of 17
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 must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “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 & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
8

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Fed. Cl. 381 at 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-
2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
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.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (holding that it is within the special master’s discretion to determine whether to
afford greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational).
I. Factual Findings Regarding a Table SIRVA
Respondent has contested two SIRVA QAI requirements in Mr. Brose’s case – a
prior abnormality that would explain his condition after vaccination and onset. After a
review of the entire record, and as set forth below, I find that a preponderance of the
evidence demonstrates that Petitioner has satisfied the Qualifications and Aids to
Interpretation (“QAI”) requirements for a Table SIRVA.
A. No History of Left Shoulder Symptoms that Would Explain Symptoms After
Vaccination
In order to meet the definition of a Table SIRVA, a petitioner must show that there
is “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.” (42
C.F.R. § 100.3(a)(XIV)(B)) and § 100.3(c)(10)(i) (QAI criteria)).
9

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Respondent argues that Petitioner had a longstanding history of pain,
inflammation, or dysfunction in his left shoulder. Opp. at 8. Beginning in 2000 and
continuing for almost 20 years thereafter, Respondent argues that Petitioner received
cortisone injections and attended PT for his chronic left shoulder pain. Id. In addition,
Respondent noted that Mr. Brose received diagnoses of calcific tendonitis, bicipital
tendonitis, rotator cuff syndrome, and adhesive capsulitis in the left shoulder. Id. Thus,
Respondent argues that Petitioner’s treatment and symptoms were same both pre and
post vaccination. Id.
While it is certainly true that Mr. Brose had a prior history of left shoulder
symptoms, the QAI states that a petitioner must have no history of pain, inflammation or
dysfunction of the affected shoulder that would explain the symptoms after vaccine
injection. That standard is not met here. Looking at the record, Mr. Brose’s left shoulder
symptoms appeared to have resolved in the two to three years prior to vaccination. He
was discharged from PT on his left shoulder on January 23, 2018, two years and nine
months prior to vaccination, and he had no documented left shoulder symptoms during
that time. Indeed, during Mr. Brose’s first evaluation for his shoulder pain, his orthopedic
surgeon noted, “[Petitioner] reports no trouble with the shoulder until this flu vaccination.”
Ex. 3 at 8.
In addition, Petitioner’s orthopedist diagnosed Mr. Brose with left shoulder bursitis,
stating that Petitioner “developed an acute shoulder bursitis secondary to his flu
vaccination being done too high and likely was injected into the subacromial space.” Id.
Thus, the symptoms that Mr. Brose experienced right after vaccination are not explained
by his prior symptoms, and Petitioner meets this QAI criterion.
B. Pain Occurs with the Specified Timeframe (Onset)
In order to meet the definition of a Table SIRVA, a petitioner must show that she
experienced the onset of pain within 48 hours of vaccination (42 C.F.R. §
100.3(a)(XIV)(B)) and § 100.3(c)(10)(ii) (QAI criteria)). Respondent argues that Petitioner
“has not established that the onset of his alleged SIRVA began within forty-eight hours of
vaccination.” Opp. at 9. But it is important to stress that this QAI only requires that the
onset of shoulder pain begin within 48 hours of vaccination - not that all SIRVA symptoms
begin within 48 hours, as Respondent posits.
Respondent argues that because Mr. Brose waited six weeks before he saw an
orthopedist for treatment of his left shoulder pain, the delay is not consistent with
Petitioner’s claim that he had “unprecedented, intense pain and discomfort in the days
after vaccination.” Opp. at 9. Respondent also contends that Petitioner’s statements
regarding onset were “vague,” citing to references in the record where Mr. Brose stated
10

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that he “thought” his shoulder pain started after he received a flu shot. Id. However, I find
these arguments to be unpersuasive. But Respondent has cited only the references in
the record that support his argument, when the complete record shows a different picture.
As a threshold matter, I note that six weeks is not an unreasonable time to wait
before a claimant might seek treatment for shoulder pain after vaccination. As I have
stated in many other decisions and rulings discussing SIRVA injuries, a petitioner will
often delay treatment because shoulder pain is a very common side effect after
vaccination. Many medical providers will counsel a patient to wait a period of time before
being seen to allow the expected shoulder pain to subside. Thus, the treatment delay in
this case is not worthy of significant weight in determining the disputed onset criterion.
On December 23, 2020, which was the first time Petitioner was seen after
vaccination, Mr. Brose reported to the orthopedist that “t[]he onset of the shoulder pain
has been sudden and has been occurring for 6 weeks,” which is exactly when Petitioner
got his vaccination. Ex. 3 at 8. The record also states that Petitioner “received a flu
vaccine on 11/9 at a local pharmacy and the vaccine was placed higher than typically and
he had a weird sensation in his shoulder at the time of injection.” Id. (emphasis added).
When Petitioner began PT on December 29, 2020, he reported
Assessment/Diagnosis: The pt is a 40 y/o male who presents to Kinetic
with a diagnosis of LUE pain with an insidious onset, The pt reported that
he thinks it all started after he received a flu shot which occurred sometime
on or around November 9th and then a few days later the pain into the L
shoulder started.
Ex. 3 at 16. The next day, on December 30, 2020, Dr. Murray noted that Petitioner
“developed acute shoulder bursitis secondary to his flu vaccination being done too high
and likely was injected into the subacromial space.” Ex. 3 at 8. I find these reports to be
credible and consistent with all his other reports that his shoulder pain began within 48
hours of receiving the vaccination. Thus, I find that Mr. Brose has preponderantly met the
48-hour onset requirement.
A. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). The overall record
contains preponderant evidence to fulfill these additional requirements.
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The record shows that Petitioner received a flu vaccine intramuscularly in his left
shoulder on November 9, 2020. Ex. 1 at 7; see Section 11(c)(1)(A) (requiring receipt of a
covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the United
States or its territories). There is no evidence that Petitioner has collected a civil award
for her injury. Petition at 5; Section 11(c)(1)(E) (lack of prior civil award). Therefore,
Petitioner has satisfied all requirements for a Table SIRVA.
The last criterion which must be satisfied by Petitioner involves the duration of his
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer
the residual effects of his or her left shoulder injury for more than six months or required
surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
Starting from October 2, 2020 (24 hours after vaccination), the records undoubtedly
demonstrate that Petitioner suffered the residual effects of his shoulder injury for more
than six months. See, e.g., Ex. 7 at 7 (records of Petitioner’s appointment with Dr.
Murray). Thus, this requirement is also met.
Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
IV. Damages
I. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include an award “[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). 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).
There is no precise formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V, 1996 WL 300594,
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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 & 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)).
A special master may also look to prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in each case.
See, e.g., Doe 34 v. Sec’y of Health & Human 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, a special master may rely on his or her own
experience adjudicating similar claims. Hodges v. Sec’y of Health & Human 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). Importantly, however, it must also be stressed that pain and suffering
is not determined based on a continuum. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (2013).
II. Parties’ Arguments
a. Petitioner
Mr. Brose has requested $65,000.00 in pain and suffering. He argues that he
reported his injury just six weeks after vaccination, and his treatment consisted of visits
to his primary care provider and orthopedist, nine sessions of physical therapy, two
cortisone injections, an MRI, and a Medrol Dosepak. Mot. at 26-27.
Petitioner cites to four cases to support his requested award: (1) Sakovitz v. Sec’y
of Health & Human Servs., No. 17-1028V, 2020 WL 3729420 at *3(Fed. Cl. Spec. Mstr.
June 4, 2020), (2) Belka v. Sec’y of Health & Human Servs., No. 19-1106V, 2022 WL
4717891 at *6 (Fed. Cl. Spec. Mstr. Sept. 1, 2022), (3) Cavalier v. Sec’y of Health &
Human Servs., No. 21-5500404, 2023 WL 5500404 at *5 (Fed. Cl. Spec. Mstr. Jul. 25,
2023) and Celuch v. Sec’y of Health & Human Servs., No. 18-544V, 2021 WL 2368137
at *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2019). Mr. Brose states that he continues to have pain
and discomfort in his left shoulder, which affect his daily life, hobbies and activities of daily
living. Ex. 2 at 4.
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b. Respondent
Respondent argues that Petitioner suffered a mild SIRVA injury, and should
therefore be awarded an amount consistent with cases with similar injuries. In that
respect, Respondent has argued that an award for pain in suffering in the amount of
$39,500.00 is appropriate. Opp. at 12.
Respondent notes that Petitioner’s treatment was concentrated in a onetime six-
week period, between December 23, 2020, and February 3, 2021, that was then followed
by a gap in any alleged SIRVA medical records until July 26, 2021. In addition,
Respondent notes that Petitioner underwent very conservative treatment consisting of
one steroid injection and a total of nine PT sessions. At Petitioner’s last PT session, Mr.
Brose was discharged to a home exercise program on January 28, 2021. Opp at 14; Ex.
at 139. Consequently, by the time Petitioner saw his orthopedist in February 2021, he
had already been discharged from PT thus making his orthopedist’s instruction to “stop”
a moot point.
Because of these differences, Respondent argue that the cases cited by Petitioner
in support of his claim for $65,000.00 in pain and suffering are distinguishable, and
Respondent cites to the Ramos case in support of his proposed award. Ramos v. Sec’y
of Health & Human Servs., No. 18- 1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan.
4, 2021).
III. Appropriate Compensation in this SIRVA Case
a. Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Mr. Brose was a competent adult with no impairments that would impact his
awareness of his injury. Therefore, I analyze principally the severity and duration of his
injury. When performing this analysis, I review the same record relied upon to determine
entitlement, including the filed affidavits and medical records, and written briefs. I have
also considered prior awards for pain and suffering in both SPU and non-SPU SIRVA
cases and rely upon my experience adjudicating these cases.
The record establishes that Mr. Brose suffered a mild SIRVA injury which did not
necessitate surgery. His treatment course was conservative and limited. His left shoulder
symptoms were managed mostly two steroid injections and just nine PT sessions. There
is also an approximately four-and-a-half-month gap in his treatment course is also
consistent with a milder type of injury. See Shelton v. Sec’y of Health & Human Servs.,
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No. 19-279V, 2021 WL 2550093, at *7 (Fed. Cl. Spec. Mstr. May 21, 2021) (“[t]he fact
that petitioner could cope with her injury for such a long period of time counsels in favor
of a lower pain and suffering award. Treatment gaps are a relevant consideration in
determining the degree of petitioner’s pain and suffering”). His actual treatment course,
when he did seek out medical advice, as Respondent has noted, was concentrated in a
onetime six-week period between December 23, 2020, and February 3, 2021, that was
then followed by a gap in any alleged SIRVA medical records until July 26, 2021. Opp. at
14. Mr. Brose’s total treatment course was eight and a half months, and only four months
if the treatment gap is excluded.
Petitioner cites four cases in support of his request for $65,000.00 in pain and
suffering - Sakovitz, Belka, Celuch, and Cavalier. However, in all of these cases the
petitioners received more treatment than Mr. Brose did, and/or had a much longer
treatment period. While the Sakovitz claimant delayed seeking treatment for three and a
half months, her treatment course consisted of one cortisone injection, one MRI and a
total of 34 PT sessions. The Belka petitioner attended 24 PT sessions and had two
cortisone injections. Belka, 2022 WL 4717891 at *4. Her duration of injury was also longer
than Mr. Brose’s, at 13 months. Id. at *6. While there was a longer delay in initial treatment
in the Belka case at six months, there is no gap in treatment once Petitioner began
treatment. Id. at *5. The Celuch petitioner was first seen for her shoulder pain two months
after vaccination. She underwent an MRI, received one cortisone injection, and
underwent 24 PT sessions. She recovered approximately eight months after vaccination
and was awarded $70,000.00 in pain and suffering. 2021 WL 2368137 at *4. In Cavalier,
the petitioner attended an initial PT session on March 12, 2020, which was then
interrupted by the COVID-19 pandemic. 2023 WL 5500404 at *5. Petitioner also received
two cortisone injections. Id. at *6. There was a six-month gap in treatment between the
Cavalier petitioner’s receipt of the second cortisone injection in June 2020, before she
returned to treatment in mid-December 2020, and ultimately attended 12 additional PT
sessions, for a total of 13 PT sessions. Id.
Respondent, on the other hand, cites a single case, Ramos, where a claimant was
awarded $40,000.00 in pain and suffering. 2021 WL 688576. However, there are also
some notable differences in the Ramos case which make it less appropriate as a
comparable case. The Ramos petitioner delayed seeking treatment for his injury for more
than four months, or 121 days. 2021 WL 688576, *1. And as Respondent noted, the
petitioner in Ramos did not receive any steroid injections, which is an indication as to the
severity of the shoulder injury. Thus, I will award Mr. Brose a higher amount than was
awarded in Ramos.
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I will note that the medical records do not show that Mr. Brose underwent an MRI
during his treatment period as he indicates, i.e., from the date of vaccination through the
end of the filed medical records, which are dated July 26, 2021. The only MRI that is
contained within the records is an MRI from 2016 which Petitioner underwent prior to
vaccination. Ex. 4 at 17, 19 (discussing Petitioner’s 2016 left shoulder MRI); Ex. 9 at 5
(2016 left shoulder MRI results). Thus, in analyzing Mr. Brose’s case against the
comparable cases he cited, I will note that he did not undergo an MRI on his left shoulder
after vaccination. The records also show that Mr. Brose received two steroid injections,
despite Respondent’s assertion that Petitioner only received one. See Ex. 3 at 8
(documenting second steroid injection). Thus, while the cases cited by Petitioner are not
persuasive comparable cases because each of the petitioners received more treatment
and/or had longer treatment length, the single case cited by Respondent is also not a
persuasive comparable since that petitioner had a lengthy delay before treatment and did
not receive as much treatment as Mr. Brose.
Under such circumstances and considering the arguments presented by both
parties, a review of the cited cases, and based on the record as a whole, I find that
$48,000.00 in compensation for Mr. Brose’s past pain and suffering is reasonable and
appropriate in this case.
CONCLUSION
Based on my consideration of the complete record as a whole and for the reasons
discussed above, pursuant to Section 12(d)(3)(A), I find that $48,000.00 represents a
fair and appropriate amount of compensation for Petitioner’s actual pain and
suffering.4 Accordingly, I award Petitioner a lump sum payment of $48,000.00, 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.5
4 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 & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
5 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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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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