VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_24-vv-00555
Package ID: USCOURTS-cofc-1_24-vv-00555
Petitioner: Jason Altschuler
Filed: 2024-04-10
Decided: 2026-07-15
Vaccine: Tdap
Vaccination date: 2021-04-20
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 84605

AI-assisted case summary:
Jason Altschuler filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of a tetanus/diphtheria/acellular pertussis (Tdap) vaccine received on April 20, 2021. Although the vaccination record indicated the vaccine was administered in his left arm, Mr. Altschuler asserted it was given in his right arm. Six days after vaccination, he reported severe pain in his right arm, which he attributed to the Tdap vaccine. Subsequent medical evaluations confirmed right shoulder pain, limited range of motion, and tenderness consistent with SIRVA. The parties stipulated to entitlement, and the court found that the evidence preponderantly supported a right-sided vaccine administration. For damages, the court awarded $80,000.00 for pain and suffering and $4,605.92 for past unreimbursable expenses. The court also found Mr. Altschuler entitled to lost wages calculated through November 26, 2021, with the specific amount to be determined by the parties.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_24-vv-00555-0
Date issued/filed: 2026-08-18
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/15/2026) regarding 25 Ruling on Entitlement,, Scheduling Order,, 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 1:24-vv-00555-UNJ Document 27 Filed 08/18/26 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 24-0555V
JASON ALTSCHULER, Chief Special Master Corcoran
Petitioner, Filed: July 15, 2026
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT AND PARTIAL RULING ON DAMAGES1
On April 10, 2024, Jason Altschuler 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a tetanus/diphtheria/acellular pertussis (“Tdap”)
vaccine received on April 20, 2021. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”).
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 1:24-vv-00555-UNJ Document 27 Filed 08/18/26 Page 2 of 13
The parties were unable to settle the claim, and have now briefed entitlement and
damages (ECF Nos. 21, 23, 24). For the reasons set forth below, I find that Petitioner’s
Tdap vaccine was likely administered in his right arm, and that he is otherwise entitled to
compensation. For damages, I find that Petitioner is entitled to an award of $80,000.00
for actual pain and suffering, plus $4,605.92 for past unreimbursable expenses. I also
determine that Petitioner is entitled to a portion of his requested lost earnings, with the
sum to be calculated by the parties in accordance with this Ruling.
I. Factual Evidence
A. Medical Records
On April 20, 2021, Petitioner received a Tdap vaccine during an emergency
department (“ED”) visit following an injury to his finger. Ex. 2 at 1; Ex. 3 at 12, 14. Although
the vaccination record states that the vaccine was administered in his left deltoid (Ex. 2
at 1), Petitioner asserts that it was actually administered in his right arm.
Six days later (April 26, 2021), Petitioner returned to the ED complaining of fever,
body aches, and “[s]evere pain in right arm from shot.” Ex. 3 at 45, 46 (emphasis added).
Petitioner thought his symptoms might have resulted from the Tdap vaccine he had
received at his prior visit. Id. at 46. The examination and treatment provided at this
encounter focused on his injured finger and the possibility of infection, and it appears that
Petitioner’s arm was not examined or treated.
Two days later (April 28, 2021), Petitioner saw his primary care provider (“PCP”)
to follow up on his finger injury and for “[p]ain in [a]rm [a]fter [t]etanus [s]hot.” Ex. 4 at 13.
On examination, his right arm exhibited pain with palpation to the upper bicep tendon, as
well as painful extension and rotation. Id. He was assessed with right arm pain and
polyneuropathy, and given medication and a neurology referral. Id. at 14.
On May 4, 2021, Petitioner saw a neurologist reporting “right shoulder pain that
began after a tetanus shot on 04/20/21.” Ex. 5 at 5. Petitioner noted that the injection was
placed too high and he felt discomfort during administration of the vaccine. Id. Since that
time, he had experienced a sharp stabbing pain that was exacerbated by any movement.
Id. On examination, the neurologist noted tenderness to palpation around the rotator cuff
and “exquisite tenderness at the junction of the humerus and the shoulder where the
injection was placed.” Id. The neurologist suspected SIRVA and arranged for Petitioner
to see an orthopedist that day. Id. at 6.
On the same day (May 4, 2021), Petitioner saw orthopedist Brett Hall, M.D. Ex. 6
at 3. He reported right shoulder pain that “started after he got a tetanus injection into the
right shoulder.” Id. Since that time, he had experienced progressive pain in his right
shoulder and decreased range of motion (“ROM”). Id. Dr. Hall thought “it is possible that
2

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the vaccination went into the subacromial space as opposed to being intramuscular based
on the symptoms that he is having,” including “quite a bit of bursitis and irritation in his
shoulder.” Id. at 5. He recommended an MRI, and placed Petitioner off work duties. Id.
The following week (May 12, 2021), Petitioner saw orthopedist Nicolas S. Bonnaig,
M.D., for a second opinion. Ex. 7 at 19. He complained of severe right shoulder pain he
rated eight out of ten, which started on April 20, 2021 “after having a tetanus shot in his
right arm.” Id. Since vaccination, he had experienced constant pain that was aggravated
by overhead motion and reaching. ID. On examination, Petitioner’s right shoulder active
ROM was 90 degrees in forward elevation. Id. Petitioner was assessed with rotator cuff
tendinitis and subacromial impingement of the right shoulder, and given medication and
a physical therapy (“PT”) referral. Id. at 20. He was instructed not to work for three weeks.
Id.
Petitioner underwent a PT evaluation on May 24, 2021. Ex. 8 at 13. He reported
the “onset of right shoulder pain on 4/20/21, following Tdap injection.”3 Id. He rated his
pain seven out of ten, and described it as a constant ache at rest and sharp pain with
movement. Id. He reported “waking up throughout the night” due to pain. Id. On
examination, his right shoulder active ROM was 130 degrees in flexion, 100 degrees in
abduction, and 60 degrees in external rotation, and his right shoulder exhibited reduced
strength. Id. at 15. He continued PT through June 17, 2021, attending a total of seven
sessions between May 24 and June 17, 2021. Id. at 13-46. On June 17th, he reported a
pain level of nine out of ten and minimal change, and requested that he be discharged.
Id. at 41-42.
Petitioner returned to Dr. Bonnaig on June 3, 2021, reporting that he continued to
experience pain that was worsening despite two weeks of PT. Ex. 7 at 22. An MRI was
ordered. Id. at 23. The MRI showed a small labral tear, presumably reactive edema in the
head of the humerus, moderate tendinosis of the infraspinatus, and acromioclavicular
arthritis. Id. at 24.
On August 3, 2021, Petitioner followed up with Dr. Bonnaig to review the MRI. Ex.
7 at 25. Dr. Bonnaig assessed him with right shoulder subacromial impingement, right
rotator cuff tendinitis, and a tear of the right glenoid labrum, and administered a steroid
injection and recommended more PT. Id. at 25-26. Dr. Bonnaig did not think vaccination
had caused the MRI findings, but added that “it is certainly likely that having a shot caused
pain in his shoulder.” Id. at 26. Petitioner was directed to remain off work for another four
weeks to rehabilitate his shoulder. Id.
3 As Petitioner notes, this and some other records inaccurately identify the date of vaccination as April 18,
2021.
3

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On August 12, 2021, Petitioner underwent a PT re-evaluation. Ex. 8 at 47. He rated
his pain three out of ten at rest and eight out of ten with activity. Id. The steroid injection
he received the previous week resulted in “minimal improvement in symptoms.” Id. at 48.
His right shoulder active ROM had worsened, and was now 110 degrees in flexion, 90
degrees in abduction, and 55 degrees in external rotation, and he continued to exhibit
decreased strength. Id. at 49. Petitioner attended six PT sessions between August 12
and September 9, 2021. Ex. 8 at 47- 79. On September 9, 2021, Petitioner reported
improved strength but worsening of his pain in both intensity and frequency. Id. at 74.
Petitioner saw Dr. Bonnaig on September 17, 2021. Ex. 7 at 28. He reported pain,
weakness, and limited ROM that was “not any better.” Id. The steroid injection had
provided no relief, and he had been taking Tylenol and doing PT. Id. He remained out of
work. Id. Petitioner was given medication and instructed to remain off of work for another
four weeks. Id. at 29. Petitioner attended six more PT sessions between September 23
and October 13, 2021. Ex. 8 at 81-112.
On October 15, 2021, Petitioner followed up with Dr. Bonnaig concerning his right
shoulder pain. Ex. 7 at 31. He reported a “40% improvement in symptoms,” though he
continued to experience pain with cross body motion and overhead motion, as well as
stiffness and weakness. Id. He was instructed to continue PT and remain out of work for
another six weeks. Id. at 32.
Petitioner attended five additional PT sessions between October 15 and November
10, 2021. Ex. 8 at 114-138. At his final PT session on November 10th, he reported a pain
level of seven out of ten, ranging from one or two at rest to seven or eight with activity. Id.
at 133. He reported “minimal change” in symptoms, with continued mild to moderate right
shoulder pain and difficulty with dressing, meal preparation, sleeping, and household
chores. Id. at 134. His active ROM was now 140 degrees in flexion, 130 degrees in
abduction, and 50 degrees in external rotation. Id. The therapist noted that Petitioner had
attended 24 PT sessions, and was now being discharged “due to insurance authorization
issues.” Id. at 136.
Petitioner saw Dr. Bonnaig on November 30, 2021, reporting “no significant
change in his symptoms,” with superior shoulder pain and increasing pain at night, though
his ROM had improved. Ex. 7 at 34. Dr. Bonnaig administered another steroid injection,
and offered surgery as an option if his symptoms persisted. Id. at 35.
B. Testimonial Evidence
Petitioner filed two declarations in support of his claim. Exs. 1, 17. He states that
the Tdap vaccine was administered into his right arm on April 20, 2021. Ex. 1 at ¶ 2.
Before vaccination, the nurse began to prepare his right shoulder for vaccination, leading
Petitioner to ask whether the vaccine should be administered in his left shoulder, because
his hand injury was to his left hand. Id. at ¶ 4. The nurse responded that it did not matter,
4

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and continued preparing his right arm, then administered the vaccine into his right
shoulder. Id.
Petitioner states that on the evening of vaccination, he began to experience a dull
ache in his right shoulder and upper arm. Ex. 1 at ¶ 5. Initially, he thought it was normal
post-vaccination pain that would improve on its own. Id. Instead, it worsened, and he
began to experience significant difficulty raising his right arm due to severe pain. Id. When
he developed other symptoms, including a high fever, he returned to the ED. Id.
Petitioner states that at the time of his injury, he worked full time as a butcher, for
which he was paid $13.00 per hour. Ex. 17 at ¶ 2. His job entailed moving large cases of
meat, which he was unable to do after his shoulder injury. Ex. 1 at ¶ 35. He lost his job
due to his injury, and did not return to work until February 2022 when he was hired by a
landscaping company. Id. At the time of his injury, his health insurance plan had a “very
high deductible,” making the medical bills a hardship and pushing him further into
depression. Ex. 17 at ¶ 3.
Petitioner states that his injury has had a “significant negative impact” on his life.
Ex. 17 at ¶ 5. He was unable to work and had to borrow money from his parents for bills,
which was “humiliating” as an adult. Id. He was unable to participate in activities and
hobbies due to constant pain and lack of income, leaving him in a “deep state of
depression.” Id.
Petitioner states he has lost “a significant amount of mobility” in his right shoulder
due to his injury. Ex. 17 at ¶ 7. He was unable to drive for months, making him dependent
on others for transportation, and needed assistance for dressing for the first few months
after his injury. Id. When he lost his job due to his injury, he was left with no income for
expenses, furthering his depression. Id. at ¶ 8.
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
5

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contemporaneous medical records). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received and the lack of
other award or settlement,4 a petitioner must establish that he or she suffered an injury
meeting the Table criteria, in which case causation is presumed, or an injury shown to be
caused-in-fact by the vaccination he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
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
4 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception and has not filed a civil suit or collected an award or settlement for his or her injury. Section
11(c)(1)(A)(B)(E).
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later reporting stiffness and continuing restrictions in motion); see also Peeples v. Sec’y
of Health & Human Servs., No. 20-0634V, 2022 WL 2387749 (Fed. Cl. Spec. Mstr. May
26, 2022) (finding severity requirement met where Petitioner sought care for four months,
followed by fifteen-month gap); Silvestri v. Sec’y of Health & Human Servs., No. 19-
1045V, 2021 WL 4205313 (Fed. Cl. Spec. Mstr. Aug. 16, 2021) (finding severity
requirement satisfied where Petitioner did not seek additional treatment after the five-
month mark).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(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).
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A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
B. Parties’ Arguments on Entitlement
The sole disputed entitlement issue concerns the situs of vaccine administration.5
The vaccination record documents a left arm situs, while Petitioner contends the vaccine
was administered into his right arm. Petitioner’s Motion for Ruling on the Record, filed
Mar. 19, 2025, at *30-38 (ECF No. 21) (“Mot.”). Petitioner emphasizes that he reported
his injury to a medical provider just six days after vaccination, identifying his vaccinated
right arm as the locus of pain. Mot. at *30. Thereafter, as he sought care, he consistently
related his right shoulder pain to vaccination. Id. at *30-34. And no records other than the
vaccination record suggest the vaccine was administered in his left arm. Id.
Respondent argues that the vaccination record plainly states that the vaccine was
administered in Petitioner’s left deltoid. Response, filed June 17, 2025, at *8-9 (ECF No.
23) (“Resp.”). As a contemporaneous medical record created by a disinterested person,
that record is entitled to consideration as trustworthy evidence. Id. In contrast, the records
identifying Petitioner’s right arm as the vaccination situs reflect statements of Petitioner
rather than independent knowledge. Id. The vaccination record is the “only record
containing information about the site of vaccination from a disinterested person who
actually witnessed the administration of the vaccine.” Id. at *9.
C. Factual Findings Concerning Situs
The record preponderantly supports a finding that Petitioner’s Tdap vaccine was
likely administered into his right shoulder, as alleged. Although the vaccination record
documents a left-sided situs, all other evidence supports a right-sided situs. Petitioner
reported his right shoulder injury to a healthcare provider just six days after vaccination,
and related his pain to vaccination in that arm. Thereafter, he consistently reported that
the vaccine was administered in his right shoulder, resulting in pain. And no other records
suggest a left-sided vaccination.
D. Factual Findings on Remaining SIRVA QAI Criteria and Statutory
Requirements
The QAI and statutory requirements are not otherwise disputed, and I find that they
5 I appreciate Respondent’s decision to withdraw his onset objection after Petitioner highlighted compelling
evidence.
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are satisfied. The record does not contain preponderant evidence that Petitioner had a
history of right shoulder pain, or another condition, that would explain his post-vaccination
symptoms. Ex. 4. He experienced the onset of shoulder pain within 48 hours of
vaccination. Ex. 3 at 45; Ex. 6 at 3; Ex. 7 at 19; Ex. 8 at 13. He exhibited reduced ROM,
and his symptoms were limited to the shoulder in which the vaccine was administered.
Ex. 6 at 3; Ex. 7 at 19; Ex. 8 at 13. He experienced residual effects of his condition for
more than six months. Ex. 7 at 34-35; Ex. 8 at 119-38. He received a covered vaccine in
the United States. Ex. 2 at 1. And he states that he has never received compensation in
the form of an award or settlement for his vaccine injury, nor has he filed a civil action.
Ex. 1 at ¶ 37.
Petitioner has established by preponderant evidence that all Table SIRVA and QAI
requirements are established. Further, he has established all statutory requirements for
entitlement. Thus, Petitioner is entitled to compensation.
III. Damages
A. Legal Standard
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Section II of Matthews v. Sec’y of
Health & Human Servs., No. 22-1396V, 2025 WL 2606607 (Fed. Cl. Spec. Mstr. Aug. 13,
2025).
In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, an award not to exceed $250,000.00.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.
Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and
suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of
the suffering.6
B. Parties’ Damages Arguments
Petitioner seeks a pain and suffering award of $80,000.00, relying on decisions in
6 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)).
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Coluccio and Williams, in which claimants received that amount.7 Mot. at *38-44.
Petitioner asserts that he treated his injury for seven and a half months, with two steroid
injections, 24 PT sessions, an MRI, multiple prescription medications, an ED visit, and
consultations with orthopedists, a neurologist, and his PCP. Id. He sought care just six
days after vaccination, suggesting a more severe injury. Id.
Petitioner also seeks lost wages in the amount of $15,381.86 (which he asserts
was calculated net of taxes). Mot. at *44-46. Prior to his injury, Petitioner worked full time
as a butcher, earning $13.00 per hour. Id. at *44. Due to his injury, he was unable to
perform his job duties, and ultimately lost his job. Id. He did not obtain employment again
until February 2022, when he was hired by a landscaping company. Id.
Respondent proposes a pain and suffering award of no more than $72,500.00,
relying on decisions in Callejas and Killpack, in which the petitioners were awarded
$67,500.00 and $73,000.00, respectively.8 Resp. at *10-13. Respondent views
Petitioner’s clinical course as mild, continuing for slightly longer than seven months and
limited to medications, injections, and PT. Id. at *11.
With respect to lost wages, Respondent does not dispute Petitioner’s calculations,
but asserts that Petitioner has not established that he is entitled to lost wages in the first
place. Resp. at *14. Respondent argues that the Vaccine Act contemplates compensation
for lost wages only if the vaccinee’s earning capacity is impaired. Id. Although Petitioner
cites medical records noting that he could not perform his duties as a butcher,
Respondent asserts that this may demonstrate that he was unable to work at that
particular job, but does not establish that his earning capacity was impaired or limited in
any way. Id. And Petitioner has not shown why he was unable to find another job with
comparable pay that did not require the same physical labor as working as a butcher. Id.
Respondent states that Petitioner’s “inability to find alternative employment does not
equate to his earning capacity being impaired.” Id.
On reply, Petitioner observes that the parties are fairly close in their recommended
pain and suffering awards. Reply at *6. And Petitioner asserts that the decisions
Respondent cites, Callejas and Killpack, both involve significant differences from
Petitioner’s injury that would justify a higher award for Petitioner. Id. at *6-8.
Petitioner asserts that lost wages should be awarded because “the decision to stop
working was fully supported by Petitioner’s medical providers who deemed him unable to
7 Coluccio v. Sec’y of Health & Human Servs., No. 19-1684V, 2022 WL 17849579 (Fed. Cl. Spec. Mstr.
Dec. 15, 2022) and Williams v. Sec’y of Health & Human Servs., No. 19-1420, 20204 WL 914908 (Fed. Cl.
Spec. Mstr. Jan. 30, 2024).
8 Callejas v. Sec’y of Health & Human Servs., No. 20-1767, 2023 WL 12073989 (Fed. Cl. Spec. Mstr. May
5, 2023), and Killpack v. Sec’y of Health & Human Servs., No. 21-27V, 2023 WL 4312922 (Fed. Cl. Spec.
Mstr. June 2, 2023).
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perform his job as a butcher.” Reply at *5-6. He asserts that he was “forced to stop
working due to his injury,” resulting in a loss of earning capacity. Id.
C. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact his
awareness of his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
Petitioner suffered a moderate SIRVA that persisted for seven and a half months.
He treated his condition with two steroid injections, 24 PT sessions, and medications, and
underwent an MRI. He sought treatment promptly, going to the emergency department
just six days after vaccination, reporting severe pain. He followed up with his PCP two
days later, and the following week saw a neurologist and orthopedist. Thereafter, he
continued treatment regularly, with no gaps. He reported severe pain levels, rating his
pain eight out of ten at his May 12, 2021 orthopedic consultation. Ex. 8 at 13. His pain
worsened, reaching nine out of ten in mid-June 2021. Ex. 8 at 41-42. By mid-August
2021, he rated his pain three out of ten at rest, and eight out of ten with activity. Ex. 8 at
47.
The first steroid injection reportedly provided “no relief” (Ex. 7 at 28). However, it
appears that the second steroid injection at the end of November 2021 may have relieved
Petitioner’s pain, because he did not seek further treatment for his shoulder injury
thereafter. I recognize that he stopped PT not because he had met his goals, but due to
insurance limitations. At his final PT session, he rated his pain as ranging from one to two
at rest to seven or eight with activity. Ex. 8 at 133.
I find the Coluccio and Williams decisions to be on point and good comparables.
The petitioners in those cases, like Mr. Altschuler, suffered moderate injuries that
persisted for about the same amount of time, and all of them treated their injuries with
steroid injections and PT but not surgery. All three experienced severe pain levels at
times, and all sought care less than a month after vaccination. The same sum that was
awarded in those cases is appropriate here.
Taking these factors into consideration, an award of $80,000.00 for pain and
suffering is appropriate in this case.
D. Appropriate Compensation for Lost Wages
The Vaccine Act provides compensation for lost wages as follows:
In the case of any person who has sustained a vaccine-related
injury after attaining the age of 18 and whose earning capacity
is or has been impaired by reason of such person’s vaccine-
related injury for which compensation is to be awarded,
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compensation for actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial
principles and projections.
42 U.S.C. § 300aa-15(a)(3)(A).
Accordingly, a prerequisite for a lost earnings award is a finding of impairment to
earning capacity as a result of the vaccine-related injury, and compensation is limited to
petitioner’s “actual and anticipated loss of earnings.” As the special master in Brown v.
Sec’y of Health & Hum. Servs., recognized, “the Vaccine Act requires that lost earnings
be calculated in a cautious manner . . . .” No. 01-60V, 2005 WL 2659072, at *6-8 (Fed.
Cl. Spec. Mstr. Sept. 21, 2005). As with other elements of damages, petitioner bears the
burden of supporting his claim for lost earnings with preponderant evidence. 42 U.S.C.
§ 300aa-11(e); see, e.g., Wilkerson v. Sec’y of Health & Hum. Servs., No. 90-822V, 1998
WL 106132, at *2 (Fed. Cl. Spec. Mstr. Feb. 24, 1998) (“petitioner [], as in any claim
brought before this forum, has the obligation to prove her case, and that proof includes a
preponderance of evidence on the issue of reasonable damages.”).
Petitioner worked in a physically-demanding job as a butcher prior to his injury. At
his first orthopedic appointment on May 4, 2021, he was directed not to work due to his
shoulder injury. Ex. 6 at 5. The record supports a finding that he was subsequently
instructed to remain out of work through November 26, 2021.9 Ex. 7 at 20, 26, 29, 32.
After that date, however, the record is bereft of evidence supporting an impaired earning
capacity. Thus, I agree that Petitioner should be compensated for lost wages through
November 26, 2021, although he has not substantiated a loss of earning capacity beyond
that point.
The parties are directed to calculate Petitioner’s lost wages (minus taxes) through
November 26, 2021 and submit that sum, after which I will issue a decision.
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
9 On May 12, 2021, Petitioner was directed not to work for three weeks. Ex. 7 at 20. On August 3, 2021,
Petitioner was instructed to remain off work for another four weeks. Id. at 26. On September 17, 2021, he
was instructed to remain out of work for four additional weeks. Id. at 29. On October 15, 2021, Petitioner
was directed to remain out of work for another six weeks, e.g., until November 26, 2021. Id. at 32.
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Petitioner suffered an injury that meets the definition for a Table SIRVA and is
entitled to compensation. $80,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.10 Additionally, Petitioner
is entitled to $4,605.92 in unreimbursable expenses.11
I also find that Petitioner is entitled to lost wages calculated through
November 26, 2021. Petitioner shall file, by no later than Tuesday, August 11, 2026,
a joint status report setting forth a specific amount for Petitioner’s lost wages for
this time period, minus applicable taxes that would have been deducted from these
earnings. Thereafter, I will issue a final damages decision.
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 The parties agree that this sum is reimbursable. Mot. at *1; Resp. at *10.
13