Egan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 22-0273V

SCOTT EGAN, Chief Special Master Corcoran

Petitioner, Filed: October 28, 2025

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1

On March 10, 2022, Scott Egan 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 an influenza (“flu”) vaccine received on September 26, 2020.

Petition at 1. The case was assigned to the Special Processing Unit of the Office of

Special Masters.

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).

The parties were unable to settle the claim, and have now fully briefed entitlement

and damages (ECF Nos. 30, 32, 33). For the reasons set forth herein, I find that Petitioner

is entitled to compensation, and award damages for actual pain and suffering in the

amount of $98,000.00, plus $289.54 for unreimbursed, out-of-pocket medical expenses.

I. Factual Evidence

A. Medical Records

Petitioner received a flu vaccine in his left deltoid on September 26, 2020. Ex. 1 at

4. Approximately five weeks later (November 2, 2020), he saw orthopedic physician

assistant (“PA”) Kevin Brown for a two-month history of right knee pain that was interfering

with sleep and causing pain with walking and kneeling. Ex. 3 at 96, 98. PA Brown

assessed Petitioner with an acute meniscus tear and recommended an MRI. Id. at 101-

02. Although Petitioner’s knee was examined, no general musculoskeletal examination

was done, and the record of the visit is silent on shoulder concerns.

Petitioner returned to PA Brown the following week (November 9, 2020) to review

the knee MRI, which showed a medial meniscus tear. Ex. 3 at 110. His knee was

examined, but the record does not indicate that a general musculoskeletal examination

was conducted. Id. at 113. Arthroscopic knee surgery was recommended, and Petitioner

agreed. Id. at 114.

On December 12, 2020, Petitioner was seen in the emergency department (“ED")

for chest pain. Ex. 4 at 35. The musculoskeletal review of systems was negative for back

pain, and did not address any other musculoskeletal concerns. Id. at 36. On

musculoskeletal examination, Petitioner was noted to have “[g]ood range of motion in all

major joints,” with no tenderness to palpation or major deformities noted. Id. at 38. He

was diagnosed with atypical chest pain and given antacid medication. Id. at 42. The

record of this visit does not mention left shoulder pain.

The following morning (December 13, 2020), Petitioner was again seen in an ED

complaining of anxiety. Ex. 9 at 43. He reported that his wife had surgery for stage III

cancer two days prior and was doing well, but he had started breathing hard with his “first

panic attack” the day before. Id. He had improved while in the ED the day before, but

awoke at 3 AM with the same problem. Id. He was now having slight paresthesias in his

extremities. Id. The musculoskeletal examination states only that he did not have edema

in his lower extremities. Id. at 47. He was given anxiety medication and discharged. Id.

Petitioner first sought treatment for shoulder pain in December 2020 – although

there is some ambiguity as to the precise date for that treatment event. Ex. 3 at 134-138.

Petitioner asserts that he was first seen on December 1st, and returned on December

16th, while Respondent asserts that Petitioner was first seen on December 16th. On

2

reviewing the record, I find that it is more likely that Petitioner was first seen on December

16, 2020.3 Id.

At this December 16th visit (now over eleven weeks post-vaccination), Petitioner

stated that he had received a flu vaccine in September and “has had pain in shoulder

since.” Ex. 3 at 138. He explained that “right away after the injection he had pain around

the deltoid region that has since persisted.” Id. The pain was aggravated when he lifted

things with his left arm. Id. He had not noticed significant loss of motion, although pain

was somewhat limiting. Id. He had mild weakness and occasional numbness and tingling

extending down his arm. Id. He had tried over the counter anti-inflammatory and pain

medication, as well as hot and cold packs, without relief. Id.

On examination, Petitioner’ left shoulder was tender to palpation in the subacromial

space and deltoid. Ex. 3 at 142. His range of motion (“ROM”) was 180 degrees in forward

flexion, 170 degrees in abduction, and 80 degrees in external rotation, with positive

impingement signs. Id. He was assessed with left rotator cuff tendinitis, and given a

steroid injection. Id. at 142-43. PA Brown noted that this “could be symptoms related to

SIRVA,” although Petitioner also had pain and weakness consistent with rotator cuff

pathology. Id. at 143.

On December 29, 2020, Petitioner saw Dr. Kai Huang for a pre-operative

examination in preparation for knee surgery. Ex. 2 at 87. He received a tetanus vaccine,

although the administration situs was not recorded. Id. at 90-91. The record is silent on

shoulder concerns. Petitioner’s knee surgery was performed on January 22, 2021. Ex. 3

at 174.

3

The records of this provider, TriHealth Orthopedic and Sports Institute, appear to include pages listing a

“visit date” even when there does not appear to have been an office visit on that date. Relevant here are

seven pages listing a “visit date” of December 1, 2020. Ex. 3 at 130-136. One of these pages lists the

reason for visit as “Left Shoulder,” noting that Petitioner received a flu shot in September and had pain

since then. Id. at 136. However, the pages dated December 1st do not include a patient history, review of

systems, examination findings, or other indications that Petitioner was seen that day. All of the detailed

information about Petitioner’s history and examination findings are found in the December 16, 2020 visit

record. Id. at 138-44. It is not clear what occurred on December 1st, but the evidence does not preponderate

in favor of a finding that Petitioner was seen in the office on that date.

This pattern – of TriHealth Orthopedic records including pages for dates on which no office visit appears to

have occurred – is repeated several other times. For instance, just before Petitioner first saw PA Brown for

knee pain, there are three pages of records listing a visit date of October 28, 2020 (Ex. 3 at 91-93), one of

which lists a diagnosis of “[a]cute pain of right knee.” Id. at 93. However, the record does not otherwise

suggest that Petitioner was actually seen on October 28th; there is not a patient history, review of systems,

or examination findings for that date.

Therefore, I find that Petitioner’s first medical consultation for his left shoulder pain more likely occurred on

December 16, 2020.

3

Petitioner underwent a left shoulder MRI on March 2, 2021. Ex. 4 at 61. The MRI

report lists a history of “LEFT SHOULDER PAIN STARTED AFTER FLU VACCINE FALL

2020.” Id. The MRI showed a small tear near the junction of the supraspinatus and

infraspinatus tendons, minimal subacromial bursal fluid, and minimal degenerative

changes at the acromioclavicular joint. Id.

Petitioner saw Dr. Joseph Thomas, an orthopedist, for a post-operative

appointment for his knee on March 8, 2021. Ex. 3 at 184. Petitioner reported that he also

“continue[d] to have left shoulder pain where he was previously seen for rotator cuff

tendinitis and given an injection.” Id. On examination, his ROM was “good,” but he had

positive impingement signs and subacromial pain. Id. Dr. Thomas recommended physical

therapy (“PT”) for his shoulder. Id.

Petitioner underwent a PT evaluation of his left shoulder two weeks later, on March

22, 2021. Ex. 3 at 193. He reported left shoulder pain that had been ongoing following his

vaccination in the fall. Id. He had received a cortisone shot, with minimal benefit, and an

MRI showed a rotator cuff tear. Id. His pain was constant and localized, ranging from

three to seven out of ten. Id. at 194. On examination, his left shoulder active ROM was

156 degrees in flexion (compared to 160 degrees on the right), 55 degrees in extension

(versus 80 on the right), 145 degrees in abduction (versus 170 on the right), and 85

degrees in external rotation (versus 90 on the right). Id. at 196. He reported restrictions

in driving, fitness, leisure activities, housework, cooking, and yard work. Id. at 198.

Petitioner attended three more PT sessions, on March 24, April 1, and April 7, 2021. Id.

at 203, 213, 220.

Petitioner followed up with Dr. Thomas for left shoulder pain on April 12, 2021. Ex.

5 at 21. He continued to experience pain and limited ROM, and had not seen improvement

with a cortisone injection or PT. Id. After discussing treatment options, Dr. Thomas

recommended surgery, and Petitioner agreed. Id.

Four months later (August 20, 2021), Petitioner underwent left shoulder

arthroscopy with rotator cuff repair and subacromial decompression. Ex. 5 at 203. He saw

PA Brown for a post-operative visit on August 26, 2021. Id. at 318. Petitioner was doing

well, with the expected level of postoperative pain. Id. He was wearing a sling, and had

some difficulty sleeping. Id. PT was recommended. Id.

Petitioner underwent a PT evaluation of his left shoulder on August 30, 2021. Ex.

10 at 4. His pain ranged between four and eight out of ten. Id. He reported limitations in

reaching, carrying, pushing/pulling, lifting, sleeping, household chores, driving, and

activities of daily living. Id. On examination, his left shoulder passive ROM was 110

degrees in flexion (compared to 171 on the right), 0 degrees in extension (versus 60 on

the right), 55 degrees in abduction (versus 180 on the right), and 21 degrees in external

rotation (versus 90 on the right).

4

Petitioner followed up with PA Brown on September 23, 2021. Ex. 6 at 25. His pain

and ROM were improving with PT. Id. On examination, his left shoulder ROM was 140

degrees in forward elevation, 120 degrees in abduction, and 65 degrees in external

rotation. Id. at 29. PA Brown recommended that he transition out of the sling and continue

PT. Id. Petitioner saw Dr. Thomas on November 1, 2021. Id. at 33. He was doing well,

and no longer taking pain medications. Id. The following month (December 2, 2021),

Petitioner saw PA Kaycie Klausing for a follow up visit. Id. at 42. He estimated that he

was “about 90% improved” and “very happy with his range of motion.” Id. He continued

to experience weakness, as expected. Id. He was sleeping well. Id.

Petitioner was discharged from PT after 15 post-operative visits on December 13,

2021. Ex. 10 at 81. He was pain-free, and his passive ROM was 165 degrees in flexion,

178 degrees in abduction, 88 degrees in external rotation, and 86 degrees in internal

rotation. Id. at 81-82. He was noted to have “excellent ROM and good to excellent

strength.” Id. Petitioner had either met, or had a home exercise plan to meet, all goals. Id.

B. Declaration

Petitioner submitted a declaration in support of his claim. Ex. 7. He states that

when he received the at-issue vaccine, he “knew immediately that it felt ‘different’ as the

pain was instant and severe compared to all other vaccines” he had received. Id. at ¶ 4.

He was not aware that a vaccine injection could cause severe damage, and thought the

pain would go away. Id. at ¶¶ 4-5. Additionally, he was focusing on other health problems:

his wife’s Stage 3 cancer, which she was treating with surgery, chemo, and radiation, and

his own knee problem that resulted in surgery. Id. at ¶¶ 5, 9.

Petitioner also remembered his doctor’s office telling him that new issues required

a “new problem” appointment, rather than being addressed during a follow up

appointment for another issue. Ex. 7 at ¶ 6. Therefore, he followed this process, and kept

the focus of his November 2020 appointments to his knee, and scheduled a “new issue”

appointment for December 2020 for his shoulder pain. Id. at ¶ 7.

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

5

opinion. Id.

To resolve factual issues, the special master must weigh the evidence presented,

which may include contemporaneous medical records and testimony. See Burns v. Sec'y

of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special

master must decide what weight to give evidence including oral testimony and

contemporaneous medical records). “Medical records, in general, warrant consideration

as trustworthy evidence. The records contain information supplied to or by health

professionals to facilitate diagnosis and treatment of medical conditions. With proper

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

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).

6

treatment gap . . . does not automatically mean severity cannot be established.” Law v.

Sec’y of Health & Human Servs., No. 21-0699V, 2023 WL 2641502, at *5 (Fed. Cl. Spec.

Mstr. Feb. 23, 2023) (finding severity requirement met where Petitioner sought care for

under three months and had met physical therapy goals but still lacked full range of motion

and experienced difficulty with certain activities, then returned to care nearly five months

later reporting stiffness and continuing restrictions in motion); see also Peeples v. Sec’y

of Health & Human Servs., No. 20-0634V, 2022 WL 2387749 (Fed. Cl. Spec. Mstr. May

26, 2022) (finding severity requirement met where Petitioner sought care for four months,

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

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(iv) No other condition or abnormality is present that would explain the

patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,

brachial neuritis, mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10).

A special master may find that the first symptom or manifestation of onset of an

injury occurred “within the time period described in the Vaccine Injury Table even though

the occurrence of such symptom or manifestation was not recorded or was incorrectly

recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may

be made only upon demonstration by a preponderance of the evidence that the onset [of

the injury] . . . did in fact occur within the time period described in the Vaccine Injury

Table.” Id.

B. Parties’ Arguments on Entitlement

Petitioner asserts that he continuously and consistently related the onset of his

shoulder pain to vaccination. Petitioner’s Motion for Ruling on the Record, filed June 10,

2024, at *7 (ECF No. 30) (“Mot.”). He relies on records starting in December 2020, as well

as his March 2, 2021 MRI and declaration testimony. Id. Petitioner emphasizes that he

reported pain “since” vaccination. Id. (citing Ex. 3 at 136).

Respondent argues that Petitioner cannot prevail on a Table SIRVA claim because

the medical records do not establish that Petitioner suffered the first symptoms or

manifestation of onset of a shoulder injury within 48 hours of vaccination. Respondent’s

Rule 4(c) Report and Response, filed Aug. 26, 2024, at *7 (ECF No. 32) (“Resp.”).

Petitioner’s first post-vaccination complaint of shoulder pain occurred 81 days after

vaccination, when he reported pain “after” vaccination. Id. In the interim, Petitioner saw

his orthopedist – an appropriate specialist to treat such an injury – twice, but without

mentioning shoulder pain. Id. at *7-8. Although Petitioner asserts that he was required to

make a “new problem” appointment, he later sought care for his shoulder during a follow

up appointment for his knee, on March 8, 2021 (Ex. 3 at 184). Id. at *8. Petitioner also

went to the ED twice, without mentioning shoulder pain, during the time between

vaccination and his first report of shoulder pain. Id. Respondent finds “curious” Petitioner’s

lengthy delay in seeking care, and failure to mention his shoulder pain at these intervening

medical encounters, in light of his claim that he “knew immediately” that this vaccination

felt different. Id.

Petitioner objects to Respondent’s suggestion that Petitioner’s testimony about his

understanding that he needed a “new problem” appointment is disingenuous. Petitioner’s

Reply, filed Sept. 9, 2024, at *2 (ECF No. 33) (“Reply”). Petitioner asserts that, at the time

of the March 2021 appointment Respondent cites, neither his knee nor his shoulder pain

was a “new problem.” Id. And Petitioner points out that no medical records suggest that

his shoulder pain resulted from anything other than vaccination. Id. at *3.

8

C. Factual Findings on Onset

I find that the record supports a finding that Petitioner’s shoulder pain likely began

within 48 hours of vaccination. Petitioner first sought care for his shoulder pain less than

three months after vaccination, and thereafter he consistently related his pain to

vaccination.

A treatment delay of this length does not, by itself, raise serious concerns about

onset. Tully v. Sec’y of Health & Human Servs., No. 21-1998V, 2024 WL 4533515 (Fed.

Cl. Spec. Mstr. Sept. 20, 2024) (finding onset occurred within 48 hours although claimant

did not seek care for two and a half months); Diaz v. Sec’y of Health & Human Servs.,

20-1003V, 2023 WL 8440873, at *6 (Fed. Cl. Spec. Mstr. Nov. 1, 2023) (finding onset

was within 48 hours where the petitioner delayed seeking care for over three months after

vaccination); Buck v. Sec’y of Health & Human Servs., No. 19-1301V, 2023 WL 6213423,

at *7 (Fed. Cl. Spec. Mstr. Aug. 23, 2023) (finding onset of pain occurred within 48 hours

where the petitioner did not seek care for over three months and noting that a delay in

seeking care is relevant to onset, but not dispositive). However, a delay in seeking care

coupled with evidence that the claimant attended medical appointments for other

problems raises additional concern. This is particularly so if those intervening

appointments are with providers to whom it would be appropriate to report shoulder pain,

such as a primary care provider or orthopedist – as occurred here.

But the fact that Petitioner saw his orthopedist twice between vaccination and his

first visit for shoulder pain does not automatically mean he cannot prevail. Rather, it merits

a closer look at the facts and circumstances of the appointments, the reasons for both the

treatment delay and for not reporting shoulder pain at the intervening appointments, and,

importantly, what the medical records (from when Petitioner ultimately did seek treatment)

say about when his pain began.

In this case, Petitioner saw his orthopedist twice and visited the ED twice in the

time between vaccination and his first treatment for shoulder pain. The ED visits in

December 2020 do not raise serious concerns about onset. These visits occurred just a

few days before his first shoulder treatment. And he sought treatment for chest pain and

panic attacks. It is understandable that a person seeking emergency care for these

problems may not mention shoulder pain that had been present for over two months.

The two orthopedic visits are more concerning. These appointments occurred just

over a month after vaccination, and the records are silent on Petitioner’s shoulder – and

he concedes that he did not discuss his shoulder pain at them. These concerns are

heightened by the fact that the appointments were with an orthopedic provider – an

appropriate specialist to treat a shoulder problem, and in fact the provider that he

ultimately went to for care.

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When Petitioner did seek care for shoulder pain, however, he consistently related

his pain to vaccination, even if he used vague terminology. Ex. 3 at 138; Ex. 4 at 61; Ex.

3 at 193. And he has provided testimonial evidence that, during the time between

vaccination and his first treatment, he was having knee pain and his wife was undergoing

treatment for Stage 3 cancer. Ex. 7 at ¶¶ 5, 9.

Taken as a whole, the record supports a finding that, more likely than not,

Petitioner’s shoulder pain began within 48 hours of vaccination. See G.C. v. Sec’y of

Health & Human Servs., No. 19-296V, 2022 WL 21817453 (Fed. Cl. Spec. Mstr. Aug. 9,

2022) (finding onset of shoulder pain within 48 hours despite four-month delay in seeking

care with two intervening primary care encounters, where the petitioner consistently

reported that his shoulder pain began after vaccination); Dempsey v. Sec’y of Health &

Human Servs., No. 18-0970V, 2021 WL 1080563 (Fed. Cl. Spec. Mstr. Feb. 17, 2021)

(finding that onset occurred within 48 hours despite four-month delay in seeking care,

with two intervening medical appointments, one with the claimant’s primary care provider;

stating that thereafter, the claimant consistently related onset to vaccination, and adding

that the same outcome may not follow if the treatment delay was longer).

However, this record clearly establishes ample opportunity to seek treatment

despite Petitioner’s understandable reasons for delay – and therefore I cannot find this

SIRVA to have the level of pain severity that would be true for cases where a claimant

more readily, and consistently, sought treatment. This will be taken into account in my

damages determination, as noted below.

D. Factual Findings on Remaining SIRVA QAI Criteria and Statutory

Requirements

The remaining QAI and statutory requirements are not disputed, and I find that

they are satisfied. The record does not contain preponderant evidence that Petitioner had

a history of left shoulder pain or any other condition that would explain his post-

vaccination symptoms. Ex. 2. He exhibited reduced ROM, and his pain and ROM

limitations were limited to the vaccinated shoulder. Ex. 3 at 196. He received a covered

vaccine in the United States. Ex. 1 at 4. He experienced residual effects of his injury for

more than six months. Ex. 5 at 203; Ex. 10 at 4. And he states that he never received an

award or settlement for his vaccine-related injury, nor has he filed a civil action. Ex. 1 at

¶ 14.

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.

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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.5

B. Parties’ Damages Arguments

Petitioner seeks a pain and suffering award of $135,000.00, relying on Wilson and

Rafferty, which involved awards of $130.000.00 and $127,500.00, respectively.6 Mot. at

*10-13. Petitioner emphasizes that he sought treatment “approximately 2 months after his

vaccination,” and underwent an MRI, a cortisone injection, two rounds of PT, and

arthroscopic surgery. Id. at *11. He views his treatment as similar to Wilson and Rafferty

except that he asserts that those petitioners did not undergo a cortisone injection and had

a shorter overall treatment course. Id.

Respondent argues that an award of $70,000.00 for pain and suffering is

appropriate, although he does not cite any decisions in support of his proposed award.

Resp. at *10. Respondent asserts that Petitioner experienced approximately 15 months

of mild shoulder discomfort after vaccination. Id. at *12. Petitioner reported pain levels

5

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)).

6

Wilson v. Sec’y of Health & Human Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. March

18, 2021); and Rafferty v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956, (Fed. Cl.

Spec. Mstr. May 21, 2020).

11

ranging from three to seven out of ten before surgery. Id. At his final post-operative follow

up, he reported that his shoulder pain was 90% improved. Id. at *13.

Respondent asserts that the Wilson petitioner experienced a more severe SIRVA,

although he acknowledges that Mr. Egan’s treatment was similar to that in Wilson. Resp.

at *13. And he argues that the Rafferty petitioner underwent more treatment and reported

higher pain levels than Mr. Egan. 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 mild to moderate SIRVA that required surgery. By 15 months

after the onset of his injury, he was 90% better, with “excellent ROM and good to excellent

strength.” Ex. 6 at 42; Ex. 10 at 82. He underwent a cortisone injection, arthroscopic

surgery, two rounds of PT totaling 19 sessions, and an MRI. However, his delay in seeking

care – particularly his failure to seek care when he saw an orthopedist for another injury

– bears heavily on damages. While I understand that requiring a separate appointment

for new issues is not uncommon, in this case Petitioner was not seen for that separate

appointment until more than two months post-vaccination.

Although Petitioner’s injury has many similarities to Wilson and Rafferty, there are

also important differences. Most significantly, those claimants initially sought care at one

month (Wilson) and six weeks (Rafferty) – suggesting a more severe injury. Petitioner’s

delay in seeking care – particularly his failure to seek care when he saw an orthopedist

twice for another injury – is compelling evidence suggesting a milder injury.

While the Wilson petitioner’s initial treatment period was shorter than Petitioner’s,

that claimant later returned to treatment. And the Rafferty petitioner had more severe

ROM deficits than Mr. Egan. However, I acknowledge that Mr. Egan treated for longer

than the Rafferty petitioner, and underwent a cortisone injection, which neither the Wilson

nor Rafferty claimant did.

In light of the record evidence, I find that an award of $98,000.00 for pain and

suffering is appropriate. Surgery SIRVA cases do typically result in six-figure awards of

pain and suffering – but the delays in treatment and gaps and other circumstances herein

do not justify such an award.

D. Unreimbursable Expenses

Petitioner requests $289.54 in out-of-pocket medical expenses, and Respondent

does not dispute these expenses. Mot. at *11; Resp. at *14. Petitioner also requests

$6,065.00 in expenses for lawn care. Mot. at *12. He argues that he usually tends his

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own lawn, but had to pay a landscaper for these services while he was recovering from

surgery. Id. The only evidentiary support cited or provided for these expenses is cancelled

checks. Ex. 12. The checks are made payable to two different individuals. Id. One of the

checks states it is for “Final Cut” (id. at 20); the remainder provide no indication of the

reason for the payments.

Respondent objects to reimbursement of these costs as “inconsistent with the

statute.” Resp. at *14 (citing Curri v. Sec’y of Health & Human Servs., No. 17-432V, 2018

WL 6273562, at *3 (Fed. Cl. Spec. Mstr. Oct. 31, 2018).

Petitioner has not submitted medical record or testimonial evidence that would

support his assertion that these expenses relate to his SIRVA; the only link to his SIRVA

is attorney argument. Moreover, lawn care expenses are generally not reimbursable

expenses, except in rare circumstances not present here, such as a significantly more

severe injury, and/or proof that the claimant was unable to perform these tasks and had

no other means of assistance. Curri, 2018 WL 6273562, at *3-4. Petitioner has not

demonstrated entitlement to reimbursement of lawn care expenses.

Conclusion

For all of the reasons discussed above and based on consideration of the record

as a whole, I GRANT Petitioner’s motion for a ruling on the record, and find that

Petitioner suffered an injury that meets the definition for a Table SIRVA and is

entitled to compensation. I find that $98,000.00 represents a fair and appropriate

amount of compensation for Petitioner’s actual pain and suffering.7 Additionally, I

find that Petitioner is entitled to $289.54 in out-of-pocket expenses.

Based on consideration of the record as a whole and arguments of the parties, I

award Petitioner a lump sum of $98,289.54, to be paid through an ACH deposit to

Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This

amount represents compensation for all damages that would be available under Section

15(a).

The Clerk of Court is directed to enter judgment in accordance with this Decision.8

7

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)).

8

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

renouncing the right to seek review.

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IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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