# Leach v. Secretary of Health and Human Services

> United States Court of Federal Claims · July 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10734793

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** July 10, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10734793

## How later opinions describe it (automated extraction)

- explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records

## Opinion text

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).

3
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

10
$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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10734793. Public record. Not legal advice.