# Sofen v. Secretary of Health and Human Services

> United States Court of Federal Claims · June 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11344615

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** June 17, 2026
- **Precedential status:** Unpublished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/11344615

## How later opinions describe it (automated extraction)

- finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”
- 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. 21-1976V

FREDERICK SOFEN, Chief Special Master Corcoran

Petitioner, Filed: May 12, 2026
v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES 1

On October 7, 2021, Frederick Sofen 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 a Table injury – Shoulder Injury Related to Vaccine Administration
(“SIRVA”) – as a result of his receipt of an influenza (“flu”) vaccine on October 29, 2020.
Petition, ECF No. 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).

For the reasons set forth below, and after holding a brief hearing on entitlement
and damages in this matter, I find that Petitioner is entitled to compensation, and I award

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).
damages in the total amount of $135,082.01, representing Petitioner’s actual pain and
suffering plus payment of his outstanding Medicaid lien.

I. Relevant Procedural History

After the claim’s initiation in December 2021, the parties engaged in settlement
discussions, but were unable to reach agreement. On March 18, 2024, Respondent filed
his Rule 4(c) Report arguing the claim should be dismissed. Rule 4(c) Report (ECF No.
30) at 11-14. I thereafter set deadlines for the filing of briefs addressing both Petitioner’s
entitlement to compensation and an appropriate damages award. Scheduling Order, filed
April 25, 2024 (ECF No. 31).

On July 31, 2024, Petitioner filed a Motion for Ruling on the Record Regarding
Entitlement and Damages, arguing that he had established entitlement to compensation
for his SIRVA injury, and requesting an award of $160,000.00 3 for past pain and suffering,
plus past unreimbursed expenses. Motion for Ruling on the Record (ECF No. 36).
Respondent reacted to the filing on September 27, 2024, recommending that entitlement
to compensation be denied under the terms of the Vaccine Act. Respondent’s Response
Brief (ECF No. 38). Respondent further argued that in the event entitlement to
compensation was found, Petitioner should be awarded the lesser amount of between
$95,000.00 to $125,000.00 for actual pain and suffering. Id. at 25-26, 28. Petitioner filed
a Reply on December 6, 2024. Petitioner’s Reply Brief (ECF No. 40). 4

Petitioner subsequently filed a Motion for Expedited Resolution of this case, and I
scheduled a “Motions’ Day” expedited hearing to resolve both entitlement and damages. 5
Petitioner’s Motion for Expedited Resolution, filed January 28, 2026 (ECF No. 43);
Hearing Order (Non-PDF), filed February 9, 2026. The Motion’s Day hearing took place
on February 23, 2026. Minute Entry, dated March 26, 2026. 6 After hearing argument, I

3Petitioner argued at the Motion’s Day Hearing that he should be awarded the increased amount of
$185,000.00 for pain and suffering. Transcript (“Tr.”) filed March 26, 2026 at 24, 36. (ECF No. 48).

4 Petitioner’s Reply brief and simultaneously filed exhibits clarified his request for unreimbursed expenses.

Specifically, Petitioner sought $1,350.16 for past unreimbursed expenses, and $82.01 for his payment of
his outstanding Medicaid lien. Petitioner’s Reply Brief at 20; Exs. 22-23. On February 11, 2026, Respondent
filed a Supplemental Brief objecting to reimbursement of Petitioner’s past unreimbursable expenses and
Medicaid lien. Respondent’s Supplemental Brief (ECF No. 44). On February 19, 2026, Petitioner filed a
Response to Respondent’s Supplemental Brief waiving his requested unreimbursed expenses, but
submitting additional evidence regarding his outstanding Medicaid lien. Petitioner’s Response to
Respondent’s Supplemental Brief (ECF No. 46); Ex. 25.

5 Accordingly, I hereby find Petitioner’s Motion (ECF No. 43) moot.

6 Michael Milmoe appeared on behalf of Petitioner, and Nathaniel Trager appeared on behalf of

Respondent.

2
orally ruled on Petitioner’s entitlement to compensation, and also made a damages
determination. This Decision memorializes those findings.

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).
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, 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, 7 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

7 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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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 QAI are as follows:

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:

(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;

(ii) Pain occurs within the specified time frame;

(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10).

B. Factual Findings

1. Severity

The preliminary issue to be determined in this case is whether Petitioner has
satisfied the Vaccine Act’s “severity requirement,” which requires a claimant to
demonstrate that he:

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(i) suffered the residual effects or complications of such illness, disability,
injury, or condition for more than 6 months after the administration of the
vaccine, or (ii) died from the administration of the vaccine, or (iii) suffered
such illness, disability, injury or condition from the vaccine which resulted in
inpatient hospitalization and surgical intervention.

Section 11(c)(1)(D). To do so here, Petitioner would need to establish sequelae from his
alleged SIRVA persisted until at least April 30, 2021 (assuming an onset of October 29,
2020). After a careful review of the record, I find that Petitioner has established that he
more likely than not suffered the sequela of his injury for more than six months.

Prior to a five-month treatment gap, Petitioner had a medical visit for his shoulder
with a neurologist on February 23, 2020 – nearly four months after the vaccine
administration. At that appointment, for his “flu shot reaction,” it was noted that he was
“doing much better. He [ha]s no new complaints. His arm is back to normal. He is very
pleased with how he is doing.” Ex. 4 at 4. The neurologist assessed Petitioner with an
autoimmune reaction, stating “he had a reaction to the flu[] shot. Based on the EMG this
does not appear to be neurologic. It is now resolved. The patient will follow-up as needed.”
Ex. 4 at 5. At this appointment, Petitioner was also provided prescriptions for prednisone
and diclofenac. Id.

Petitioner next received shoulder treatment on July 22, 2021, when he was seen
by orthopedic surgeon Alexander Martusiewicz, M.D., for “[b]ilateral shoulder pain.” Ex. 2
at 148. In his declaration, Petitioner explains that in the time after his neurology visit in
February 2020, his shoulder pain continued at “moderate to high levels (4-8),” and he
later decided to see an orthopedist. Ex. 8 at 1. At his orthopedic visit, Petitioner reported
that he “injured his right shoulder 4 years ago and has had mild pain since that time.” Ex.
2 at 148. The record further provides that Petitioner later “developed left shoulder pain in
October 2020 after receiving a flu vaccine. The shoulder has improved somewhat but is
still significant he complains of pain with activities in both arms as well as pain that wakes
him up at night. He complains of pain with daily activities.” Id. (emphasis added).

A physical examination by Dr. Martusiewicz found that Petitioner exhibited forward
flexion of 150 degrees and external rotation of 60 degrees in both shoulders. Ex. 2 at 150.
Petitioner was assessed with “[b]ilateral shoulder pain with likely left rotator cuff
tendinopathy, and chronic right partial thickness rotator cuff tear.” Id. He received a
steroid injection in his left shoulder, was advised to continue home exercises, use anti-
inflammatories as needed, and follow-up in eight weeks. Id. Subsequently, Petitioner
continued treatment for his left shoulder with Dr. Martusiewicz, which culminated in left

5
shoulder surgery on December 8, 2021, followed by three rounds of physical therapy for
through September 2022. Ex. 6 at 8; Ex. 5 at 3-48; Ex. 9 at 3-33; Ex. 11 at 38-60.

Respondent correctly points out that Petitioner’s injury appeared resolved right
before the five-month treatment gap (and short of the six months severity “cut off.”) But
the focus of the neurologist’s inquiry was likely upon any neurological injury – which was
ruled out by the EMG. Thus, the fact a specialist did not identify a neurologic injury at that
time does not rule out the possibility of an ongoing SIRVA.

Additionally, Respondent argues that Petitioner was seen by his primary care
provider (“PCP”) at various times during the gap - on March 2, May 4, and July 1, 2021 -
and there is no mention of shoulder pain in the records corresponding to these visits. See,
e.g. Ex. 2 at 82-91. However, these visits were not to address Petitioner’s shoulder issues.
Additionally, while these PCP records reflect that physical examinations were conducted
at these visits, no specific examinations of Petitioner’s shoulders are described. Ex. 2 at
83, 86, 89-90. Additionally, Petitioner did not report his shoulder pain to his PCP at his
first post-vaccination visit on December 10, 2020 – which was for his dyslipidemia and
medication refills - suggesting that Petitioner opted instead to address this issue with
specialists, like his neurologist or Dr. Martusiewicz. Ex. 2 at 79.

Moreover, I observe (based on my experience adjudicating SIRVA claims) that
pain levels in SIRVA cases often fluctuate, and while Petitioner may have felt his arm was
significantly better or “back to normal” at his February 23, 2020 appointment, his pain
ultimately persisted, as is supported by the medical record of Dr. Martusiewicz five
months later. Ex. 2 at 148. (The patient developed left shoulder pain in October 2020 after
receiving a flu vaccine. The shoulder has improved somewhat but is still significant. . . .”)
(emphasis added). Dr. Martusiewicz’s record is also supported by Petitioner’s own
declarations, as well as the declarations of his friends Barry Watkins and David Tumbas,
as well as his son, Jay Sofen. Exs. 8, 17-20. Finally, I note that there is no evidence for
an intervening cause of Petitioner’s shoulder pain during his gap in treatment.

Based on the above, I find that Petitioner has established he suffered the sequela
of his shoulder injury for more than six months after receipt of the vaccine.

2. Onset

The primary 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)(XIV)(B) (seasonal influenza vaccines); 42 C.F.R. § 100.3(c)(10)(ii) (required

6
onset for pain listed in the QAI). 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 flu vaccine in his left deltoid on October 29, 2020. Ex. 1 at 1.
Petitioner’s first medical visit after his vaccination, with his PCP on December 10, 2020,
does not document a complaint of left shoulder pain, and states that Petitioner was “doing
well.” Ex. 2 at 79-80. However, this visit was for Petitioner’s dyslipidemia and medical
refills. Id. While a general physical examination and review of systems is documented,
neither was specific to the shoulders. Id.

Subsequently, only 18 days later (and two months post-vaccination), on December
28, 2020, Petitioner sought treatment from his neurologist for “a flu shot reaction.” Ex. 4
at 6. Petitioner reported he “got a flu[] shot 4-5 weeks ago. Within a day of getting the
shot he had discomfort in his upper arm.” Id. (emphasis added). He reported the pain was
3-5/10, and there was “subtle weakness and numbness in the upper arm only.” Id. The
neurologist stated that Petitioner “had a reaction to the flu[] shot,” questioned if Petitioner
had a brachial plexopathy or not, ordered an EMG, and prescribed a “prednisone for him
to take if the pain starts up again.” Id. at 6-7.

On January 11, 2021, Petitioner had an EMG/NCS of the bilateral upper
extremities that was normal. Ex. 4 at 8-13. On January 26, 2021, Petitioner was seen
again by the neurologist. Id. at 4. The record notes that Petitioner’s EMG was normal,
and that Petitioner states “his arm is not as sore as it was and is slowly improving. He has
been cautious not to use his left arm as much. He does get pain in the left
delt/bicep/tricepts. It is intermittent and random. . . . He took a few doses of prednisone
and found that his [symptoms] improved.” Id. On February 23, 2021, Petitioner was seen
again by the neurologist for his “flu shot reaction.” Id. at 4. It was noted that he was “doing
much better. He [ha]s no new complaints. His arm is back to normal. He is very pleased
with how he is doing.” Ex. 4 at 4. The neurologist assessed Petitioner with an autoimmune
reaction, stating “he had a reaction to the flu shot. Based on the EMG this does not appear
to be neurologic. It is now resolved.” Id. at 5.

After a five-month gap in his shoulder treatment, Petitioner was by Dr.
Martusiewicz for “[b]ilateral shoulder pain.” Ex. 2 at 148. The record states that Petitioner
“developed left shoulder pain in October 2020 after receiving a flu vaccine. The shoulder
has improved somewhat but is still significant he complains of pain with activities in both
arms as well as pain that wakes him up at night. He complains of pain with daily activities.”
Id. (emphasis added). Thereafter, Petitioner continued to treat for his left shoulder injury.

The medical records cited above, as supported by Petitioner’s own sworn
declarations, and the declarations of Petitioner’s son and friends (Exs. 8, 17-20),

7
preponderately establish that the onset of his shoulder pain likely began within 48 hours
of his vaccination. 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).

3. Limited Range of Motion

Respondent also offered an additional objection to entitlement: that Petitioner
cannot establish that he ever suffered the QAI requirement of exhibiting limited range of
motion. As an initial matter I observe that I have previously held, after examining 42 C.F.R.
§ 100.3(c)(10), that the QAI definition for a SIRVA injury requires that a petitioner
demonstrate they suffered both pain and limited or reduced range of motion following
receipt of a covered vaccine. See Bolick v. Sec’y of Health & Hum. Servs., No. 20-893V,
2023 WL 8187307, at *7-8 (Fed. Cl. Spec. Mstr. Oct. 19, 2023). However, I have held that
there is no associated time requirement required by the Table within which a SIRVA
petitioner must manifest reduced range of motion, or how much such limitations must be
established. Id; see also Dawson v. Sec'y of Health & Hum. Servs., No. 19-278V, 2021
WL 5774655, at *4 (Fed. Cl. Spec. Mstr. Nov. 4, 2021)(“no time period is set forth in which
Petitioner must manifest reduced range of motion”).

In the instant case, the record contains sufficient evidence that Petitioner suffered
limited range of motion to find this element satisfied. The first objective evidence that
Petitioner suffered limited range of motion occurred approximately nine months after his
vaccination - at his July 22, 2021 examination by Dr. Martusiewicz. At that time,
measuring Petitioner’s range of motion in both shoulders was documented (Petitioner had
a separate and long-standing right shoulder injury) as follows: forward flexion of 150
degrees, external rotation of 60 degrees, internal rotation to T12. 8 Ex. 2 at 150. As I have
found in other cases, normal shoulder range of motion for adults ranges from 165 to 180
degrees in flexion, 170 to 180 degrees in abduction, 90 to 100 degrees in external
rotation, and 70 to 90 degrees in internal rotation. CYNTHIA C. NORKIN & D. JOYCE
WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 84,
88 (F. A. Davis Co., 5th ed. 2016); Stamm v. Sec'y of Health & Hum. Servs., No. 20-

8 I also observe that this is the first time one of Petitioner’s medical providers documented his range of

motion in the record.

8
1590V, 2024 WL 4678224, at *5 (Fed. Cl. Spec. Mstr. Oct. 1, 2024) (applying normal
range of motion measurements in another SIRVA claim as described in the text above).
Accordingly, Petitioner objectively exhibited reduced range of motion in his left shoulder.

Respondent argues that even if I find that Petitioner suffered the sequela of his
injury for more than six months, he still has failed to demonstrate that his shoulder range
of motion in July 2021 was abnormal for someone in his age group, and points out that
Petitioner’s MRI demonstrated severe degenerative changes. Respondent’s Response
Brief at 19. However, the Vaccine Injury Table contains no instruction regarding what
measurement specifically constitutes reduced range of motion – nor provides any age or
other qualifiers to determine whether a petitioner has demonstrated reduced range of
motion. At bottom, this claim element is not particularly difficult to meet, so long as there
is some objective record evidence of an affirmative finding of reduced ROM (as opposed
to pain on shoulder motion that causes a claimant to hesitate to move their shoulder).

Accordingly, I find that Petitioner demonstrated reduced range of motion in his left
shoulder and thus satisfied the third QAI requirement for a SIRVA Table injury. 42 C.F.R.
§ 100.3(c)(10)(iii).

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, etc. See
generally § 11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed in this
claim. I therefore find that Petitioner is entitled to compensation in this case.

III. Damages

A. Legal Standards for Damages Awards
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). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &

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Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).

There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & 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)).

I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims. Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).

Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by a Court of Federal
Claims decision several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed.
Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of all
suffering awards into a global comparative scale in which the individual petitioner’s
suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590.
Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain
and suffering awards within the Vaccine Program, and a survey of similar injury claims
outside of the Vaccine Program. Id. at 595. Under this approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap. Although Graves is not
controlling of the outcome in this case, it provides reasoned guidance in calculating pain
and suffering awards – and properly emphasizes the importance in each case of basing
damages on the specific injured party’s circumstances.

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B. Prior SIRVA Compensation Within SPU9

1. Data Regarding Compensation in SPU SIRVA Cases

SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2026, 5,397 SPU SIRVA cases have resolved since the inception of SPU
more than ten years before. Compensation has been awarded in the vast majority of
cases (5,194), with the remaining 203 cases dismissed.

2,946 of the compensated SPU SIRVA cases were the result of a ruling that the
petitioner was entitled to compensation (as opposed to an informal settlement), and
therefore reflect full compensation. 10 In only 351 of these cases, however, was the
amount of damages determined by a special master in a reasoned decision or ruling. 11
As I have previously stated, the written decisions setting forth such determinations,
prepared by neutral judicial officers (the special masters themselves), provide the most
reliable guidance in deciding what similarly-situated claimants should also receive. 12

The data for all categories of damages decisions described above reflect the
expected differences in outcome, summarized as follows:

9 All figures included in this decision are derived from a review of the decisions awarding compensation

within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.

10 The remaining 2,248 compensated SIRVA cases were resolved via stipulated agreement of the parties

without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.

11 The rest of these cases resulting in damages after concession were either reflective of a proffer by

Respondent (2,561 cases) or stipulation (34 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.

12 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or

proffer) must still be approved by a special master, such determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases,
these determinations nevertheless “provide some evidence of the kinds of awards received overall in
comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed
upon by the parties and cases in which damages are determined by a special master).

11
Damages Proffered Stipulated Stipulated 13
Decisions by Damages Damages Agreement
Special Master
Total Cases 352 2,560 34 2,248
Lowest $25,000.00 $4,000.00 $37,013.60 $1,000.00
1 Quartile $66,994.13
st $58,000.79 $87,750.00 $30,000.00
Median $91,163.89 $77,500.00 $112,119.37 $47,951.60
3 Quartile $125,000.00
rd $105,276.51 $160,376.79 $73,477.50
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00

2. Pain and Suffering Awards in Reasoned Decisions

In the 352 SPU SIRVA cases in which damages were determined via reasoned
decision or ruling, compensation for a petitioner’s actual or past pain and suffering varied
from $25,000.00 to $215,000.00, with $89,500.00 as the median amount. Only ten of
these cases involved an award for future pain and suffering, with yearly awards ranging
from $250.00 to $1,500.00. 14 In one of these cases, the future pain and suffering award
was limited by the statutory pain and suffering cap. 15

In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one

13 Two awards were for an annuity only, the exact amounts which were not determined at the time of

judgment.

14 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa

v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).

15 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr.

Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in
Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A));
see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the
application of the statutory cap before any projected pain and suffering award is reduced to net present
value).

12
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.

Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In nine cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.

3. 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 February
23, 2026. 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 Petitioner’s initial gap in
treatment during the first six months following his vaccination. Petitioner alleges that after
he last saw his neurologist (nearly four months post vaccination), his shoulder pain
continued at “moderate to high levels (4-8).” Ex. 8 at 1. Yet, he waited five months to seek
further care. While I find that such a gap in treatment does not mean that Petitioner’s
shoulder pain did not persist (and was therefore not grounds for denial of entitlement),
the delay in seeking further treatment supports the conclusion that Petitioner’s shoulder
pain was not so severe as to necessitate urgent treatment, and that he was able to
manage his shoulder pain during this time period.

13
Thereafter, Petitioner sought care from orthopedic surgeon Dr. Martusiewicz for
four a-half months (undergoing a steroid injection 16 and an MRI 17) before electing to have
shoulder surgery on December 8, 2021. 18 After undergoing his shoulder surgery,
Petitioner engaged in an initial 24 post-operative physical therapy sessions from February
1, 2022 through May 5, 2022. Ex. 5 at 3-48; Ex. 9 at 3-33. However, after his discharge
from physical therapy, Petitioner reported that his left shoulder pain persisted, and after
reviewing an updated MRI conducted on July 20, 2022, 19 Dr. Martusiewicz referred
Petitioner to a physical medicine and rehabilitative (“PMR”) specialist. Ex. 13 at 24.

That PMR treater, Jose L. Mendez, M.D., noted that Petitioner reported only a
“slight improvement” since his surgery, and daily pain. Ex. 10 at 35. Dr. Mendez assessed
Petitioner with chronic left shoulder pain and referred Petitioner for additional physical
therapy. Id. at 39. Petitioner completed an additional nine physical therapy visits for his
shoulder pain between August 11, 2022 and September 9, 2022. Ex. 11 at 38-60.
Petitioner was seen for a follow-up PMR visit on November 16, 2022. Ex. 10 at 19.

16 Petitioner received a steroid injection in the left shoulder at this initial appointment with Dr. Martusiewicz

on July 22, 2021. Ex. 2 at 150.

17 During this time, Petitioner underwent an left shoulder MRI on October 16, 2021 which indicated:

[1.] Tendinopathy involving the subscapularis tendon. Biceps tendon is intact.
[2.] Tendinopathy changes involving the anterior and mid fibers of the
supraspinatus tendon. Posterior fibers and infraspinatus fibers are
normal. No tear identified.
[3.] Severe degenerative changes of the AC joint with impingement.
[4.] No joint effusion. No bone marrow edema.
[5.] Tear of the middle glenohumeral ligament.

Ex. 7 at 1. The impression was [t]endinopathy changes of the subscapularis and supraspinatus tendons.
No tear identified”. Id.
18 On December 8, 2021, Petitioner underwent general anesthesia for the following surgical procedures:

Left shoulder arthroscopy with subacromial decompression, open bicep tenodesis, and rotator cuff repair.
Ex. 6 at 8. Petitioner’s pre and post operative diagnoses were: Left shoulder bursitis, bicep tendonitis, partial
cuff tear. Id. Finally, the “Indication for Procedure” was “[l]eft shoulder bursitis, near full thickness rotator
cuff tear and biceps tendonitis refractory to conservative care. Onset [status post] vaccination in shoulder
without resolution.” Id.
19 Petitioner’s July 20, 2022 MRI impression included:

1. No evidence of recurrent or retracted tear. Rotator cuff anchors in place
in the greater tuberosity. Mild distention of the subdeltoid bursa. Correlate
for subdeltoid bursitis.
2. Circumferential tear of the labrum.
3. Absent biceps tendon. Correlate for full-thickness tear versus tenodesis.
4. Moderate AC joint arthrosis with undersurface spurring.

Ex. 12 at 4-5
.

14
Petitioner reported at this appointment that he was “95% better”, and that his pain ranged
from 0-4/10. Id. at 19. The assessment remained chronic left shoulder pain. Id. at 23.

Subsequently, there are additional gaps in Petitioner’s treatment for his left
shoulder during 2023 and 2024. 20 Additionally, during this time Petitioner sought medical
care for multiple unrelated conditions in addition to his left shoulder, including bilateral leg
pain, right elbow pain, left elbow pain, and lateral epicondylitis of the left elbow, in addition
to his chronic left shoulder pain. See, e.g., Ex. 11 at 3-28; Ex. 14 at 1; Ex. 15 at 49-50.
While it is difficult to attribute how much of Petitioner’s reported left shoulder symptoms
in 2023 and 2024 are related to his SIRVA, this record establishes that it is likely Petitioner
continued to experience some SIRVA sequelae during this time period. However, I do not
find that Petitioner has established that his left elbow symptoms (which culminated in
elbow surgery on May 1, 2024) are related to his SIRVA. Ex. 16 at 54.

In making my determination, I have also fully considered Petitioner’s sworn
statements and those of his son and friends. Exs. 8, 17-20. I acknowledge that Petitioner’s
injury caused him to suffer pain (both mental and physical) for multiple years – although
as he admits, that pain waxed and wanted over time. I also recognize that Petitioner’s
mental anguish was particularly significant given his history of anxiety and depression.
See, e.g., Ex. 10 at 20; Ex. 8. Additionally, I have given weight to Petitioner’s pain journal
entries, where he reports his subjective pain measurements for both his left shoulder, and
other injuries, from his surgery on December 8, 2021 through August 11, 2024. Ex. 21.

Petitioner argued in his briefs, and at the hearing in this case, that his case is
comparable to the following cases: Reed v. Sec'y of Health & Hum. Servs., No. 16-1670,
2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 in pain and
suffering awarded by another special master); Reynolds v. Sec'y of Health & Hum. Servs.,
No. 20-0294V, 2022 WL 17819545 (Fed. Cl. Spec. Mstr. Nov. 7, 2022) (awarding
$150,000.00 pain and suffering); Schoonover v. Sec'y of Health & Hum. Servs., No. 16-
1324V, 2020 WL 5351341 (Fed. Cl. Spec. Mstr. Aug. 5, 2020) ($200,000.00 pain and
suffering, plus $39,600.00 in future pain and suffering, awarded by another special

20During this time period, Petitioner underwent a left shoulder ultrasound on February 19, 2024, the
impression of which included:

1. Tendinosis of the long head biceps tendon with postsurgical tenodesis
changes.
2. Supraspinatus tendinosis with postsurgical changes in low-grade
partial-thickness articular surface tear without evidence of full-thickness
retracted tear.
3. Subscapularis tendinosis.
4. Intrasubstance tear of the visualized posterior labrum.

Ex. 15 at 38.

15
master); Hooper v. Sec'y of Health & Hum. Servs., No. 17-12V, 2019 WL 1561519 (Fed.
Cl. Spec. Mstr. Mar. 20, 2019) ($185,000.00 pain and suffering plus a future pain and
suffering awarded by another special master); Lawson v. Sec'y of Health & Hum. Servs.,
No. 18-882V, 2021 WL 688560 (Fed. Cl. Spec. Mstr. Jan. 5, 2021) (awarding $205,000.00
pain and suffering in three surgery SIRVA case). However, I find these cases represent
more severe injuries than suffered by Petitioner. Particularly inapposite the instant claim
are Hooper (involving a SIRVA injury so severe a future award was warranted),
Schoonover (which involved both a future damages award and two shoulder surgeries),
and Lawson (a SIRVA claim involving three shoulder surgeries and seven steroid
injections).

Respondent, by contrast, offers comparable decisions representing cases where
the injuries suffered were not quite as severe as that suffered by Petitioner herein,
including: Hunt v. Sec'y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed.
Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 pain and suffering); Shelton v. Sec'y
of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21,
2021) (awarding $97,500.00 pain and suffering); Crawford v. Sec'y of Health & Hum.
Servs., No. 19-0544V, 2024 WL 1045147 (Fed. Cl. Spec. Mstr. Feb. 5, 2024) (awarding
$105,000.00 in actual pain and suffering); Gray v. Sec'y of Health & Hum. Servs., No. 20-
1708V, 2022 WL 6957013 (Fed. Cl. Spec. Mstr. Sept. 12, 2022) (awarding $110,000.00
pain and suffering); and Meyers v. Sec'y of Health & Hum. Servs., No. 20-0779V, 2024
WL 706877 (Fed. Cl. Spec. Mstr. Jan. 12, 2024)(awarding $125,000.00 pain and
suffering).

I find that the best comparable case offered by either party was Crawford.
Crawford, 2024 WL 1045147. Although there are individual distinguishing factors, both
Mr. Sofen and the Crawford petitioner experienced gaps during which they either did not
receive shoulder treatment, or such treatment was “limited in scope,” but on balance
“endured a fairly long treatment course.” Id. at *25. Nonetheless, I find Petitioner’s injury
herein warrants a higher award of pain and suffering as the initial delay before first
seeking care was longer in the Crawford claim (four months before reporting shoulder
pain versus two months by Petitioner herein). In addition, Petitioner herein maintained a
detailed pain journal evidencing his pain levels post-surgery, and Petitioner experienced
unique mental anguish given his mental health-related medical history.

Accordingly, I find that $135,000.00 represents a fair and appropriate amount
of compensation for Petitioner’s past or actual pain and suffering.

16
4. Appropriate Compensation for Unreimbursed Expenses

Petitioner has waived his previously sought unreimbursed expenses, except for a
Medicaid lien that totals $82.01. ECF No. 46. Petitioner has submitted documentation that
this amount is related to his left shoulder pain (and specifically his January 10, 2024
medical visit which included a diagnosis of “[p]ain in left shoulder”). Ex. 25. 21 As I
discussed above and at the hearing in this matter, it is difficult to parse out how exactly
much of Petitioner’s left shoulder symptoms remained attributable to his SIRVA in 2023
and 2024. But I have found (as discussed above) that at least some of Petitioner’s left
shoulder sequela is related to his SIRVA. In particular, in finding this amount
compensable, I note that Petitioner’s Medicaid lien documentation provides a “D/I:
10/29/2020” – the date of Petitioner’s vaccination. Ex. 23 at 2. Accordingly, I find that
Petitioner should be awarded $82.01 in reimbursement for his Medicaid lien.

Conclusion

For all of the reasons discussed above and based on consideration of the record
as a whole, I award the following compensation:

1. A lump sum payment of $135,000.00 (representing pain and suffering) to
be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account
for prompt disbursement; and

2. A lump sum payment of $82.01, representing compensation for the State
of Michigan Medicaid lien, to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement to:

Michigan Department of Health and Human Services
Third Party Liability Division
P.O. Box 30053
Lansing, MI 48909

This amount represents compensation for all damages that would be available
under Section 15(a). 22

21 At the expedited hearing, Respondent deferred to me regarding whether Petitioner should be awarded

the requested Medicaid lien reimbursement in this claim. Tr. at 11.

22 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to

net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).

17
The Clerk of Court is directed to enter judgment in accordance with this Decision. 23

IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

23 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.

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11344615. Public record. Not legal advice.