In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 19-1298V

UNPUBLISHED

ALLYSON LAVIGNE,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: May 12, 2022

Special Processing Unit (SPU); 

Decision Awarding Damages; Pain 

and Suffering; Influenza (Flu) 

Vaccine; Shoulder Injury Related to 

Vaccine Administration (SIRVA)

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

Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On August 27, 2019, Allyson Lavigne 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 she suffered a shoulder injury related to vaccine 

administration (SIRVA) resulting from adverse effects of an influenza (flu) vaccination she 

received on October 16, 2018. Petition at 1. The case was assigned to the Special 

Processing Unit of the Office of Special Masters.

For the reasons described below, I find that Petitioner is entitled to an award of 

damages in the amount of $199,587.14 - $198,000.00 for her actual pain and suffering,

and $1,587.14 for her past unreimbursable expenses.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am 

required to post it on the United States Court of Federal Claims' website in accordance with the 

E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012).
2

I. Relevant Procedural History

Approximately a year and a half after this case was initiated, on March 8, 2021, 

Respondent filed his Rule 4(c) Report conceding that Petitioner was entitled to 

compensation. ECF No. 19. A Ruling on Entitlement was issued on March 15, 2021. ECF 

No. 20. The parties thereafter attempted to informally resolve damages but were 

unsuccessful. ECF No. 26, 28. On December 27, 2021, I issued a scheduling order

regarding the briefing of disputed damages issues. ECF No. 31. The parties filed their 

respective briefs (ECF Nos. 33 (“Br.”), 34 (“Opp.”), and 37 (“Resp.”)). The parties agreed

to argue their positions at a motions hearing, at which time I would decide the disputed 

damages issues. ECF. No. 36. That hearing was held on April 29, 2022,

3 and the case is 

now ripe for a determination.

II. Relevant Medical History

A complete recitation of the facts can be found in the Petition, in Respondent’s 

Rule 4(c) Report, and in the parties’ respective pre-hearing briefs.

In summary, at the time of vaccination, Ms. Lavigne was 27-year-old with a noncontributory medical history. See, e.g., Ex. 2 at 5. Petitioner received a flu vaccine in her 

left deltoid on October 16, 2018. Ex. 1 at 25, Ex. 1 at 1.

On October 18, 2018, Petitioner presented to an orthopedist for pain in the left 

shoulder. Ex. 2 at 19. She was positive for joint pain and was having difficulty moving her 

arm. Id. Petitioner was administered her first subdeltoid steroid injection. Id. Two weeks 

later, on November 1, 2018, Petitioner returned to the orthopedist for a follow-up

appointment, reporting that her shoulder was getting worse, not better. Id. at 17. It was 

noted that “[t]he injection worked for 4 or 5 days but the pain came back. The shoulder is 

tender and irritated. She can’t do things with it as she would like . . . . She has tenderness 

along the anterior edge of the acromion. The CA ligament is extremely tender. It is almost 

like she has a fibrotic reaction.” Id. Petitioner was scheduled for surgery the following 

day. Id.

Ms. Lavigne had surgery on November 2, 2018, including “[a]rthroscopy of 

shoulder, left side, manipulation under general anesthesia, subacromial decompression 

of a class II acromion to a class O. Significant scar tissue fibrosis resection, undersurface 

subdeltoid bursa resection for secondary scar formation, shoulder, left side.” Ex. 6 at 7. 

3 At the end of the hearing held on April 29, 2022, I issued an oral ruling from the bench on damages in this 

case. That ruling is set forth fully in the transcript from the hearing. The transcript from the hearing is fully 

incorporated into this Decision. ECF No. 40.
3

Post-operative diagnoses were impingement syndrome, secondary fibrosis, and 

inflammation. Id. 

Ms. Lavigne continued to have problems with her shoulder post-operatively, and 

on December 6, 2018, she was diagnosed with rotator cuff tendonitis despite the 

debridement, previous fibrosis, and irritation of the shoulder. Ex. 2 at 13. Petitioner was 

then administered her second subdeltoid steroid injection. Id.

Continuing to have shoulder pain and post-operative soreness, Petitioner was 

administered her third subdeltoid steroid injection on December 27, 2018. Ex. 2 at 11. At 

this visit, Petitioner was also prescribed Celebrex, a prescription anti-inflammatory drug. 

Id. At a follow-up appointment three and a half months post-surgery, Ms. Lavigne still had 

shoulder pain and tendonitis and was administered her fourth subdeltoid steroid injection

on February 14, 2019. Id. at 9.

By April 4, 2019, Petitioner’s orthopedist indicated that she was still having chronic 

pain, trouble sleeping at night, trouble going behind her head, and irritation posteriorly. 

Ex. 2 at 7. The orthopedist’s assessments were pain in the left shoulder and ankylosis. 

Id. At that point, the orthopedist recommended an MRI, and Ms. Lavigne had an MRI on 

April 5, 2019. Id. at 7, 23. The MRI revealed, “1. Synovitis with small-to-moderate-sized 

joint effusion. No bone marrow edema or articular cartilage destruction to suggest an 

aggressive infectious process. 2. Rotator cuff tendinosis and mild bursitis. 3. Incomplete 

tat suppression versus probable reactive edema involving the distal clavicle and

acromion, with no acute fracture identified.” Id. at 23. 

On April 22, 2019, Petitioner returned to her orthopedist for a six-month follow-up. 

Ex. 2 at 5. Petitioner was still positive for joint pain. Id. Petitioner was administered her 

fifth subdeltoid steroid injection and the orthopedist recommended commencing physical 

therapy (PT). Id. On April 23, 2019, Petitioner received a PT evaluation, which was 

positive for pain on all planes of motion of her left arm, and she had positive impingement 

tests. Ex. 3 at 6-7.4 PT was recommended for two times per week for six weeks. Petitioner

received PT from April 23, 2019, through May 17, 2019. See id. at 1-26.

On May 23, 2019, Ms. Lavigne returned to her orthopedist, nearly seven months 

post-surgery. Ex. 7 at 1. Petitioner was noted to have “progressively gotten worse

because scar tissue matured and has irritation.” Id. The orthopedist recommended a 

second surgery. Id. On May 31, 2019, Petitioner had her second surgery, including 

“[a]rthroscopic shoulder, left side, with intra-articular synovectomy, extraarticular 

4 The Exhibit 3 PT records appear to have been mislabeled as Exhibit 4. However, Exhibit 3 was identified 

in the Exhibit List as EW Motion Therapy and was filed after Exhibit 2 and before another exhibit also 

labeled Exhibit 4; therefore, I will nevertheless refer to and cite to these PT records as Exhibit 3.
4

subacromial synovectomy, bursectomy, decompression of scar tissue on the anterior 

deltoid, lateral deltoid, and subdeltoid bursa.” Id. at 3. Post-operative diagnoses were 

fibrosis and impingement syndrome. Id. 

On August 20, 2019, Ms. Lavigne presented to her second PT evaluation with 

decreased range of motion, strength, flexibility, joint mobility, soft tissue mobility, and 

increased edema, pain, impairments with posture, body mechanics, and lifting 

mechanics. Ex. 9 at 18. PT was recommended for two times per week for four weeks. 

Petitioner received PT from August 20, 2019, through September 12, 2019. Ex. Id. at 1-

32. At discharge, Petitioner reported “feeling better” and that “she is doing good.” Id. at 7. 

She also reported “that she has went back to her workout class and is doing good” and 

“doesn't have constant pain and she can now raise her arm without issue.” Id.

On January 29, 2020, Ms. Lavigne presented to a Sports Medicine and 

Orthopaedic Center. Ex. 10 at 1. It was noted that Petitioner’s left shoulder pain “was not 

significantly improved after having multiple arthroscopies and subacromial corticosteroid 

injection[s] . . . .” Id. Petitioner was noted to have “[t]enderness to palpation over the 

anterior aspect of the shoulder in the biceps tendon groove and pain with active and 

passive range of motion. Positive Speed's test and positive O'Brien's and Neer's test.” Id. 

Petitioner began a trial of meloxicam, but only experienced mild improvement. Id. at 3-4. 

On March 16, 2020, Petitioner was administered her fifth subdeltoid steroid injection 

under ultrasound guidance. Id. at 5. 

Due to the coronavirus Pandemic/COVID concerns, Petitioner explains, she has

not returned to be seen in-person for SIRVA treatment since March 2020. Ex. 11 at 1. But 

she has continued to complete the recommended PT exercises at home, regaining much 

of the mobility in her shoulder in the process. Id. Her constant and severe pain has since 

largely resolved, and three years following the October 2018 flu shot, she is finally back 

participating in an exercise program and can engage in some of the hobbies she enjoyed 

prior to vaccination, though she still requires modified movements on some exercises due 

to mobility pain. Id.

III. Legal Standard

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 
5

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). 

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.5 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 the Court several 

years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579, 489-90 (2013). In 

Graves, Judge Merrow rejected a special master’s approach of awarding compensation 

for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap. 

Judge Merrow 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.” Graves, 109 Fed. Cl. at 590. Instead, 

Judge Merrow 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 

5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For 

the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were 

assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the 

majority of SPU cases were reassigned to me as the current Chief Special Master. 
6

outside of the Vaccine Program. Id. at 595. Under this alternative 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.

IV. Appropriate Compensation for Petitioner’s Pain and Suffering

In this case, Petitioner’s awareness of her injury is not disputed, leaving only its 

severity and duration to be considered. In determining appropriate compensation for 

Petitioner’s pain and suffering, I have carefully reviewed and considered the complete 

record in this case. I have also considered prior awards for pain and suffering in both SPU 

and non-SPU SIRVA cases, and relied upon my experience adjudicating such cases.6

However, my determination is ultimately based upon the specific circumstances of this 

case. 

Petitioner requests an award of $225,000.00 in past pain and suffering. Br. at 1,7. 

Petitioner argues that she “has undergone two surgeries and six painful steroid injections 

in her left shoulder. The severity of [P]etitioner’s pain was so great . . . her orthopedic 

surgeon had her on the operating table only 17 days later.” Id. at 10. Additionally, “the 

need for a second surgery on her shoulder less than seven months later is further 

evidence that [P]etitioner suffered a severely debilitating injury that could not be alleviated 

by conservative treatment.” Id. Petitioner argues that it is indisputable that her injury was 

severe as evidenced by her “two surgeries (three surgical procedures), six steroid 

injections, multiple physical therapy sessions, multiple rounds of physical therapy, 

prescription pain killers, and anti-inflammatories,” which did not fully eliminate her pain. 

Id. at 11 (footnote omitted). Petitioner asserts that although “her condition is currently 

better than it was at its worst,” the “duration of [P]etitioner’s injury has been long and will 

likely continue for the rest of her life. At age 29, [P]etitioner will likely have many years 

ahead of her in which to deal with the residual effects of SIRVA.” Id. at 12. 

Petitioner looked to comparative guidance for similar SIRVA cases where multiple 

surgeries were involved, including cases like Schoonover and Lawson.

7 Petitioner cited 

to several other cases that involved the issue of multiple surgeries, all awarding damages 

6 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a 

brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of 

Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y 

of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood 

v. Sec’y of Health & Hum. Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020). 

7 Schoonover v. Sec’y of Health & Hum. Servs., No. 13-1324V, 2020 WL 5351341 (Fed. Cl. Spec. Mstr. 

Aug. 5, 2020) (awarding $200,000.00 for past pain and suffering); Lawson v. Sec’y of HHS, No. 18-882V, 

2021 WL 688560 (Fed. Cl. Spec. Mstr. Jan. 5, 2021) (awarding $205,000.00 for past pain and suffering).
7

between $200,000.00 and $210,000.00. See Br. at 12-15. Petitioner argues that the 

fibrosis complicated her course “so much more than the petitioners in the other cases and 

more than justifies an award of $225,000.00.” Id. at 15.

In response, Respondent recommended a pain and suffering award of no more 

than $157,500.00. Opp. at 1, 13. Respondent contends that during PT, “[P]etitioner 

consistently rated her pain at 3 or 4 (though the records do not indicate the top of the 

range of the pain scale) (see Ex. 3 at 9-21), and her range of motion was not significantly 

limited, even on initial evaluation . . . . ” and “[s]he only attended seven appointments of 

PT for this period.” Id. at 7-8; see, Ex. 9 at 26. Respondent also notes that “[b]y her own 

admission, [P]etitioner’s symptoms largely resolved sometime between March 2020 and 

November 2021.” Id. at 8. Otherwise, Petitioner consistently showed relatively mild 

limitation of motion and rated her pain consistently between 3 and 4, her injury was 

responsive to PT treatment, she showed good recovery after her surgeries, and her 

symptoms resolved somewhere between one and half and three years after vaccination.

Thus, the scope of Petitioner’s pain and suffering would be appropriately compensated 

by Respondent’s proposed award. Id. at 9.

Respondent asserts, in reaction, that Schoonover and Lawson are distinguishable 

from the instant case and do not support Petitioner’s requested damages award. Opp. at 

9. Respondent argues that “awarding damages cannot be reduced down to ‘two surgeries 

equal approximately $200,000.00.’” Rather, Pruitt v. Sec’y of Health & Hum. Servs., No. 

17-757V, 2020 WL 5292022 (Fed. Cl. Spec. Mstr. Oct. 29, 2021), which awarded the 

petitioner $185,000.00 in pain and suffering, is most analogous to the facts of Petitioner’s 

case here. Id. at 12. Even though it is higher than Respondent’s proposed award, Pruitt

demonstrates (in Respondent’s view) that “less severe SIRVA injuries, like [P]etitioner’s, 

do not necessarily merit a $200,000.00 pain and suffering valuation,” despite the fact that 

two surgeries were required. Id.

Pursuant to my oral ruling on April 29, 2022 (which is fully adopted herein), I find 

that $198,000.00 represents a fair and appropriate amount of compensation for 

Petitioner’s actual pain and suffering. 

While no one specific case is completely analogous to the circumstances herein, 

the cases cited by both Petitioner and Respondent are all instructive.

8 Pruitt, the 

comparable case offered by Respondent, is especially relevant - and it resulted in an 

award well above the $157,500.00 Respondent proposes. Respondent has not provided 

8

I acknowledge that none of the cases cited by Petitioner or Respondent are binding on this Decision. See 

Nance v. Sec'y of of Health & Human Servs., No. 06–730V, 2010 WL 3291896 at *8 (Fed. Cl. Spec. Mstr. 

July 30, 2010); Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters 

are neither bound by their own decisions nor by cases from the Court of Federal Claims, except, of course, 

in the same case on remand.”). These cases do, however, provide persuasive guidance.
8

a compelling argument for why his preferred sum is appropriate.

In Pruitt the petitioner did require two surgeries, but there was a significant gap in

treatment, as well as a significant gap between her surgeries. Also, Pruitt only received 

three steroid injections, and after her second surgery, there was no recommendation for 

continued treatment “since her pain is not constant and does not seem to be interfering 

with her life.” Pruitt, 2020 WL 5292022, at *2-3, 8. Additionally, there was some question 

regarding whether Pruitt’s second surgery for a SLAP tear was a direct sequela of her

vaccination. Id. at 9. Thus, the facts of this case actually support a somewhat higher 

award than was allowed in Pruitt.

This case is also somewhat similar to Schoonover – but the facts therein are also 

sufficiently distinguishable to support a slightly lower award in this case. The Schoonover

petitioner reported constant pain, she had pain at rest, she often described pain with 

activity as severe, with a rating of eight out of ten. Petitioner's pain also did not improve 

following multiple steroid injections – or the two surgeries she experienced. Schoonover, 

at *4. Ultimately, that petitioner underwent lengthy and significant medical and surgical 

care and treatment and suffered episodes of severe pain and limited mobility. Id. at *5.

The Schoonover petitioner was therefore awarded $200,000 in past pain and suffering 

and $1,200 per year for her life expectancy, reduced to net present value. Id. at *6.

In this case, we can infer that Ms. Lavigne was experiencing a significant enough 

amount of pain to warrant an initial surgery less than three weeks after vaccination, and 

a second surgery six months after that. This alone describes a more severe SIRVA than 

what many Program claimants experience. However, the record is largely silent on the 

severity of her pain specifically. Moreover, Ms. Lavigne did not undergo the numerous 

rounds of PT over several years as did the petitioner in Schoonover. 

There is no question that Petitioner’s SIRVA and the overall course she faced, 

including the number of surgeries, the number of steroid injections, and the duration of 

her injury, support a higher-than-normal award for pain and suffering in this case. Based 

on the current records, in just over the course of a year and a half, Petitioner underwent 

two surgeries, six steroid injections, two rounds of PT, and required prescription pain 

medication and anti-inflammatories. Petitioner’s course was also further complicated by 

the scar tissue fibrosis that was caused by the vaccination. See, e.g., Ex. 2 at 11; Ex. 6 

at 7; Ex. 7 at 1, 4, 6. Nevertheless, the record establishes that she did have instances 

documented in the record where she experienced some relief from her pain. See e.g., Ex. 

4 at 17, 20; Ex. 7 at 4; Ex. 9 at 7. And by November 30, 2021, she reported “I am feeling 

better” and that she is “finally back participating in an exercise program and can engage 

in some of the hobbies [she] enjoyed prior to vaccination.” Ex. 11 at 1.
9

I acknowledge that Ms. Lavigne may still have some sequelae from her SIRVA, 

but it appears that she largely recovered from the worst of her injury by 2019. Even 

accounting for COVID, which I credit, there was not an on-going effort of Petitioner 

seeking treatment. Thus, an award a bit lower than what was allowed in Schoonover is 

most appropriate.

V. Conclusion

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

as a whole, I find that $198,000.00 represents a fair and appropriate amount of 

compensation for Petitioner’s actual pain and suffering.9I also find that Petitioner 

is entitled to $1,587.14 in actual past unreimbursable expenses. 

Accordingly, I award Petitioner a lump sum payment of $199,587.14 in the form 

of a check payable to Petitioner. This amount represents compensation for all damages 

that would be available under § 15(a). 

The clerk of the court is directed to enter judgment in accordance with this Decision.10

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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

net present value is required. See § 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)).

10 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.