Leach v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-0108V

MICHAEL LEACH, Chief Special Master Corcoran

Petitioner, Filed: June 6, 2024

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.

Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1

On January 5, 2021, Michael Leach filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the

“Vaccine Act”), alleging that he suffered a Shoulder Injury Related to Vaccine

Administration (“SIRVA”) as a result of a Tdap vaccine administered to him on May 17,

2019. Petition, ECF No. 1. The case was assigned to the Special Processing Unit of the

Office of Special Masters (the “SPU”).

For the reasons described below, and after holding a brief hearing on entitlement

and damages in this matter, I find that Petitioner is entitled compensation, and I award

damages in the total amount of $38,175.00, representing Petitioner’s actual pain and

suffering and past unreimbursed expenses.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at

https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of

2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government

Services). This means the Decision will be available to anyone with access to the internet. In accordance

with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,

the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that

the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2018).

I. Relevant Procedural History

As noted above, this case was initiated in January 2021. On May 25, 2023,

Respondent filed his Rule 4(c) Report arguing the claim should be dismissed. ECF No.

29. I thereafter encouraged the parties to settle the matter, but advised them that a

briefing schedule would be set so that I might resolve this claim if they were unable to do

so. ECF No. 30. Because the parties’ efforts were unsuccessful, I set deadlines for the

filing of briefs addressing both Petitioner’s entitlement to compensation and an

appropriate award of compensation (if Petitioner established entitlement). ECF Nos. 31-

32.

On September 11, 2023, Petitioner filed a Motion for Ruling on the Record on

Entitlement and Damages, arguing that he had established entitlement to compensation

for his SIRVA injury, and requesting an award of $50,000.00 for past pain and suffering,

plus $675.00 for past unreimbursed expenses. ECF No. 33.

On October 26, 2023, Respondent filed a Response to Petitioner’s Motion for

Ruling on the Record on Entitlement and Damages recommending that entitlement to

compensation be denied under the terms of the Vaccine Act. ECF No. 35. Respondent

further argued that in the event entitlement to compensation was found, Petitioner should

be awarded the lesser amount of $37,500.00 for actual pain and suffering, and only

$405.00 in unreimbursed expenses. Id.

Petitioner filed a Reply on November 13, 2023, and I subsequently scheduled this

matter for a “Motions’ Day” expedited hearing. ECF No. 36; Hearing Order (Non-PDF)

filed April 19, 2024. The Motions’ Day hearing took place on May 31, 2024. Minute Entry

dated June 3, 2024. 3 I orally ruled on Petitioner’s entitlement to compensation, and after

hearing argument made an oral damages determination as well. This Decision

memorializes those findings/determinations.

II. Factual Findings and Ruling on Entitlement

A. Legal Standards

Before compensation can be awarded under the Vaccine Act, a petitioner must

demonstrate, by a preponderance of evidence, all matters required under Section

11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A).

3 John Howie appeared on behalf of Petitioner, and Shelly Jock appeared on behalf of Respondent. The

transcript of the May 31, 2024 Hearing in this case was not filed as of the date of this Decision, but my oral

ruling is incorporated by reference herein.

2

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 & Hum. 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). Contemporaneous medical records are presumed to

be accurate. See Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.

Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–

2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).

In addition to requirements concerning the vaccination received, the duration and

severity of petitioner’s injury, and the lack of other award or settlement, 4 a petitioner must

establish that 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 she 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 a Tdap vaccine. 42 C.F. R. § 100.3(a)(II)(C). The criteria

establishing a SIRVA under the accompanying 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

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; suffered the residual effects of his injury for more than six months, died from his 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).

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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).

B. Factual Findings

1. Severity

The first issue to be resolved is whether Petitioner has demonstrated that she

suffered “residual effects or complications of [the injury alleged] for more than six months

after the administration of the vaccine,” as required for eligibility under the Vaccine

Program. Section 11(c)(1)(D)(i).

There is no dispute that Petitioner received the flu vaccine on May 17, 2019, and

he therefore must demonstrate by preponderant evidence that his residual symptoms

continued at least through November 17, 2019. The medical record establishes that

Petitioner actively treated for his shoulder injury from at least July 11, 2019, 5 through

5

Petitioner and his wife both state in their sworn affidavits that he more immediately (beginning the Monday

morning following his Friday vaccination) sought guidance and/or treatment from his former doctor, Frank

Perrone, MD. Ex. 1 at ¶¶ 5-7; Ex. 19 at ¶¶ 3-4. However, Dr. Perrone’s records contain no documentation

of Petitioner’s telephone calls to his office, or alleged visit on May 30, 2019. While I find no reason to

question the veracity of Petitioner’s or his wife’s statements in regard to his contact with Dr. Perrone, and

his office, it is not necessary to rely on this evidence to make a severity finding in Petitioner’s favor.

4

September 16, 2019. Ex. 6 at 8-9; Ex. 21 at 6, 8-9, 17; Ex. 7 at 60, 73. After the September

appointment with orthopedist, Kenneth Kearns, MD, there is a gap of a little over a year

until Petitioner next sought treatment for his injury. In light of this gap, Respondent

reasonably questions whether Petitioner’s injury persisted for six months.

I find, based on several factors, that Petitioner’s injury likely persisted for more

than six months despite the significant gap in treatment. First, I observe that Petitioner

was symptomatic at his September 16, 2019 visit with Dr. Kearns – four months post

vaccination. A physical exam performed on that date of Petitioner’s left shoulder remained

positive for impingement signs, and his range of motion was measured to 160 degrees in

forward elevation, to 45 degrees in external rotation, and to T12 in internal rotation. Ex.

21 at 6. Dr. Kearns recommended Petitioner engage in physical therapy. Id.

Petitioner explains in his sworn statements why he did not thereafter pursue

physical therapy. Ex. 1 at ¶ 15; Ex. 24 at ¶¶ 3-4. He states that his daughter was born by

emergency cesarean section only two months after his vaccination, his wife continued to

recover from her surgery, and he was working full-time. Given these constraints, he

determined that pursuing physical therapy “was not practical”, despite having continued

symptoms, and he instead elected to engage daily in at-home exercises provided to him.

Id. Peittioner further explains the Covid-19 Pandemic later impacted his ability to obtain

outpatient physical therapy in 2020. Ex. 1 at ¶ 15.

In reaction, Respondent notes that Petitioner did seek treatment following his

daughter’s birth, and also sought treatment on multiple occasions after the onset of the

Covid-19 Pandemic for issues not related to his shoulder pain. ECF No. 36 at 11-12.

However, I observe that Petitioner only sought treatment for issues requiring immediate

attention, as opposed to routine check-ups. He clearly sought treatment for his shoulder

injury between July 11, 2019 through September 16, 2019. Ex. 6 at 8-9; Ex. 21 at 6, 8-9,

17; Ex. 7 at 60, 73. Later, Petitioner sought treatment for isolated but acute events

unrelated to his shoulder. Ex. 15 at 8-9 (November 10, 2019 urgent care visit for treatment

of a skin abscess.); Ex. 6 at 10 (January 3, 2020 appointment for treatment of a viral

infection); Ex. 15 at 11-13 (June 20, 2020 urgent care visit for treatment of a infected toe);

Ex. 21 at 26-27 (June 26, 2020 specialist appointment regarding Petitioner’s toe). It would

not be reasonably expected that a patient would complain during such specific treatment

events about unrelated concerns.

Finally, I observe that despite the large gap in treatment, Petitioner did seek further

treatment at urgent care on October 1, 2020. Ex. 15 at 14. At that visit, Petitioner was

prescribed prednisone and ibuprofen – although the record does not address whether he

filled these prescriptions. Id. While Respondent correctly points out that the record

contains no detail regarding the history or cause of Petitioner’s shoulder pain (ECF No.

5

35 at 12), it does document that Petitioner sought further care for his shoulder pain (which

was not resolved at his last orthopedic appointment on September 16, 2019) and is

consistent with Petitioner’s sworn statements that he experienced continued shoulder

pain in the intervening period. Ex. 1 at ¶15. Moreover, Petitioner sought care at the same

urgent care office on several occasions, and the office’s records consistently lack detail

or provide any history. See, e.g., Ex. 15.

Accordingly. Petitioner has established that he suffered the sequela of his injury

for more than six months.

2. Regarding QAI Criteria for Table SIRVA

The only Table requirement for SIRVA that Respondent contests is whether

Petitioner’s first post-vaccination symptom or manifestation of onset (specifically pain)

occurred within 48 hours of his vaccination, as set forth in the Vaccine Injury Table and

Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. §

100.3(a)(II)(C) (pertussis vaccines); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain

listed in the QAI); ECF No. 35 at 14-17. Based upon a review of the entire record, and for

the reasons set forth below, I find that it more likely than not was.

Petitioner received a Tdap vaccine in his left deltoid on May 17, 2019. Ex. 3 at 12.

On July 11, 2019 (not quite two months after the vaccination), Petitioner was seen by Dr.

Michael Fischer, DO, for left shoulder pain. Ex. 6 at 8. 6 While Dr. Fischer’s handwritten

records are difficult to read, it is apparent from them that Petitioner was seen for a left

shoulder problem that he reported in connection with his May 17, 2019 vaccination, and

that he further reported pain with movement. Ex. 6 at 8. 7 On August 5, 2019, Petitioner

completed paperwork in connection with an MRI wherein he provided that his left shoulder

injury was “from [a] DTAP shot” and that the “length of [his] symptoms” was “3 months.”

Ex. 7 at 70. That same day Petitioner was evaluated by Dr. Kearns whose records state

that Petitioner presented “with left shoulder pain after he had a Tdap injection on May 17,

2019. He did have swelling after the injection. He has had pain since.” Ex. 21 at 8.

6As discussed supra at note five, Petitioner and his wife, both state in their sworn affidavits that he more

immediately (beginning the Monday morning following his Friday vaccination) sought guidance and/or

treatment from his former doctor, despite a lack of documentation in the medical record. Ex. 1 at ¶¶ 5-7;

Ex. 19 at ¶¶ 3-4. Here again, I find no reason to question the veracity of Petitioner’s or his wife’s statements.

However, I find it is not necessary to rely on this evidence to make a finding regarding onset. However, I

do find that Petitioner more likely than not reported his injury to Dr. Perrone, and his office, in days

immediately following his vaccination.

7 This is consistent with the transcription provided by Petitioner of Dr. Fischer’s record. Ex. 13; see Amended

Petitioner, filed August 30, 2021, at 3 n. 3, for description of how the transcription was created.

6

The medical records cited above (Ex. 6 at 8, Ex. 7 at 70, Ex. 21 at 8) as supported

by Petitioner’s sworn statements from himself, his wife, and his mother (Ex. 1, Ex. 18, Ex.

19), preponderately support the conclusion that the onset of his shoulder pain likely began

within 48 hours of his May 17, 2019 vaccination. I credit Respondent’s arguments about

the vagueness of certain records pertaining to onset in this case, but note that the

Program’s evidentiary standards are nevertheless satisfied under the circumstances. As

I have previously observed, “the Vaccine Act clearly does not require that symptoms be

recorded within a specific timeframe to be preponderantly established. Rather, it requires

only that onset occurs in the relevant timeframe.” Niemi v. Sec'y of Health & Hum. Servs.,

No. 19-1535V, 2021 WL 4146940, at *4 (Fed. Cl. Aug. 10, 2021) (citing Section 13)

(emphasis in original). Neither does the Act require that the medical records document

an exact date that the onset of a petitioner’s shoulder pain began. A special master may

thus 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).

C. Other Requirements for Entitlement

Based on the above, Petitioner has satisfied all requirements for a Table SIRVA.

However, even if a petitioner has satisfied the requirements of a Table injury or

established causation-in-fact, he or she must also provide preponderant evidence of the

additional requirements of Section 11(c), i.e., receipt of a covered vaccine, residual

effects of injury lasting six months, etc. See generally § 11(c)(1)(A)(B)(D)(E). But those

elements are established (as discussed above regarding six months sequela) or

undisputed in this claim. I therefore find that Petitioner is entitled to compensation in this

case.

D. Damages

1. Legal Standards for Damages Awards

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 Sections VII (subsections A and B)

of Crawford v. Sec'y of Health & Hum. Servs., No. 19-0544V, 2024 WL 1045147, at *20-

22 (Fed. Cl. Feb. 5, 2024).

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.” Section 15(a)(4). The petitioner bears the

7

burden of proof with respect to each element of compensation requested. Brewer v. Sec’y

of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.

Mar. 18, 1996). 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. 8

2. 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. In determining appropriate compensation for pain and suffering, I have

carefully reviewed and taken into account the complete record in this case, including, but

not limited to: Petitioner’s medical records, sworn statements, filings, and all assertions

made by the parties in written documents and at the expedited hearing held on May 31,

2024. I have also considered prior awards for pain and suffering in both SPU and non-

SPU SIRVA cases, and relied upon my experience adjudicating these cases. However,

my determination is ultimately based upon the specific circumstances of this case.

One factor immediately relevant to my determination is the fact that Petitioner’s

primary treatment course was relatively brief. Although I have found that Petitioner

suffered the sequela of his injury for more than six months, the bulk of Petitioner’s

treatment occurred during the first four months following his vaccination. Thus, after

Petitioner’s September 16, 2019 visit with Dr. Kearns (Ex. 21 at 6), he sought no further

treatment for his shoulder until over a year later. Ex. 15 at 14.

Subsequently (and another year later), in the fall of 2021, Petitioner engaged in

multiple counseling sessions with Danielle Burnham, MA, ATR-BC, RYT as he was

suffering anxiety, depression, and other symptoms related to his 2019 vaccine injury and

a current workplace requirement that he receive a Covid-19 vaccination. Ex. 20 at 3-7;

Ex. 21 at 34-35. Petitioner was also evaluated during this time by Dr. Fischer in

connection with Petitioner’s request for a Covid-19 vaccine exception in light of his anxiety

stemming from his prior vaccine injury. Ex. 21 at 34-35. Dr. Fischer ultimately completed

a medical certification for exception form for the Covid-19 vaccination for Petitioner. Ex.

22 at 2. However, this treatment took place for just over a month.

8 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May

14, 2013) (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.

Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).

8

Other evidence (in addition to the substantial treatment gaps) underscores the

mildness of the SIRVA at issue. Petitioner underwent xrays 9, an ultrasound 10, an MRI

scan 11, and only one cortisone injection 12. Ex. 21 at 9, 17; Ex. 7 at 60, 73. Petitioner

elected not to pursue formal physical therapy. This suggests that Petitioner was able to

manage his residual pain, and it was not so severe as to require further medical

intervention.

In making my determination, I have fully considered Petitioner’s sworn statements

and those of his mother and sister. Ex. 1; Ex. 18; Ex. 19; Ex. 21. In particular, I

acknowledge that Petitioner’s injury occurred just before the birth of his daughter and

impacted his ability to care for her. Additionally, I acknowledge that the birth of his

daughter, recovery of his wife post-delivery, and the Covid-19 pandemic impacted

Petitioner’s decision not to pursue physical therapy.

In regard to past SPU reasoned SIRVA decisions, I find the cases offered by

Petitioner in support of his request for a $50,000.00 award of pain and suffering to be

reasonable comparables. Mejias v. Sec'y of Health & Hum. Servs., 19-1944v, 2021 WL

5895622 (Fed. Cl. Spec. Mstr. Nov. 10, 2021) (awarding $45,000.00 for pain and

suffering); Welch v. Sec’y of Health & Hum. Servs., 18-0660v, 2021 WL 4612654 (Fed.

Cl. Spec. Mstr. Sept. 2, 2021) (awarding $55,000.00 for pain and suffering); Rayborn v.

Sec’y of Health & Hum. Servs., 18-0226v, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug.

14, 2020) (awarding $55,000.00 for pain and suffering). However, on balance these cases

represent somewhat more severe SIRVA injuries requiring greater treatment. For

example, the McGraw and Welch petitioners both underwent physical or occupational

therapy – which Petitioner herein did not. Welch, 2021 WL 4612654, at *3; Rayborn, 2020

WL 5522948 at *3. While the Mejias petitioner exhibited very severe pain initially. He was

seen for his injury only two days after his vaccination – stating he was unable to move his

arm. Mejias, 2021 WL 5895622, at *3, 8.

However, the two most recent cases offered by Respondent in support of his

proposed $37,500.00 award are better comparables to the instant case. ECF No. 39;

9 On July 12, 2019, Petitioner underwent xrays which revealed a “large exostosis [along the] lateral aspect

[of the] proximal humerus.” Ex. 21 at 17.

10 On July 19, 2019, Petitioner underwent an ultrasound of his left shoulder which showed a “a laterally

located proximal humeral diaphyseal osteochondroma (exostosis) measuring roughly 4.2 x 1.5 cm.” Ex. 7

at 60.

11 On August 5, 2019, Petitioner underwent an MRI of the left shoulder – the impression was

“osteochondroma along the proximal humeral area.” Ex. 7 at 73. The MRI findings also indicated that “there

may be some thinning of the supraspinatus tendon . . . [and] more posteriorly there may be some minimal

undersurface tearing of the infraspinatus tendon insertion.” Id.

12 On August 5, 2019, Dr. Kearns provided Petitioner with a cortisone injection. Ex. 21 at 8.

9

Valdez v Sec'y of Health & Hum. Servs, No. 21-394, 2024 WL 1526536 (Fed. Cl. Spec.

Mstr. Feb. 28, 2024) (awarding $35,000.00 for pain and suffering); McGraw v. Sec'y of

Health & Hum. Servs., 21-72V, 2024 WL 1160065 (Fed. Cl. Spec. Mstr. Feb. 15, 2024)

(awarding $37,500.00 for pain and suffering). While there are distinguishing factors

between the instant case and those cases all involve a relatively limited SIRVA in terms

of severity and duration. While the evidence just preponderated in favor of a general

finding of six months severity, the same record establishes an overall mild SIRVA that

involved very light treatment – and therefore the pain and suffering award to be issued

must reflect that.

Accordingly, I find that $37,500.00 represents a fair and appropriate amount

of compensation for Petitioner’s past or actual pain and suffering.

3. Appropriate Compensation for Unreimbursed Expenses

Section 15(a)(1)(B) of the Vaccine Act provides that Petitioner be awarded actual

expenses which resulted from the vaccine injury, were incurred by or on his behalf, and

were for the “diagnosis, medical or other remedial care, rehabilitation, developmental

evaluation, special education, vocational training and placement, case management

services, counseling, emotional or behavioral therapy, residential and custodial care and

service expenses, special equipment, related travel expenses, and facilities determined

to be reasonably necessary.” (emphasis added).

Petitioner seeks unreimbursed expenses of $675.00. Ex 23; ECF No. 34 at 23.

Respondent recommends an award of $405.00. ECF No. 35 at 24. Respondent argues

that Petitioner should only be awarded costs for his appointments and procedures through

October 1, 2020. Id. Respondent specifically argues Petitioner should not be awarded

costs for his counseling appointments with Ms. Burnham in 2021 and his November 4,

2021 appointment with Dr. Fischer, asserting that these appointments were in

“furtherance of seeking an exemption to the Covid-19 vaccination mandate” and are not

compensable. Id. Respondent also asserts this treatment should not support a higher

damages award, because Petitioner did not seek the care of a psychiatrist or was

appropriately diagnosed with a mental health condition. Id. at 19.

As discussed above, while Petitioner ultimately did request and obtain a medical

certification from Dr. Fischer for a Covid-19 Vaccine exception, he requested the

exception due to anxiety arising from his 2019 vaccine injury. Ex. 22. Moreover, Petitioner

engaged in five counseling sessions with Ms. Burnham, his mental health therapist,

wherein he addressed his fear, anxiety, and depression in this regard to receiving the

Covid-19 vaccination (or losing his job), because of his 2019 vaccine injury. Ex. 20 at 3-

7. I find this treatment sufficiently related to Petitioner’s SIRVA to award Petitioner the

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$270.00 associated with his counseling sessions with Ms. Burnham and his November 4,

2021 appointment with Dr. Fischer.

Conclusion

I award Petitioner a lump sum payment of $38,175.00 (representing an award

of $37,500.00 for actual pain and suffering and $675.00 for unreimbursed expenses)

in the form of a check payable to Petitioner.

This amount represents compensation for all damages that would be available

under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance

with this Decision. 13

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

13 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

11