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In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-399V

Filed: April 9, 2019

PUBLISHED

JOANNA WEBER,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU);

Decision Awarding Damages; 

Decision on the Written Record; 

Influenza (Flu); Shoulder Injury 

Related to Vaccine Administration 

(SIRVA)

Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for 

petitioner.

Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On March 21, 2017, petitioner filed a petition for compensation under the 

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

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(the 

“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to 

vaccine administration (“SIRVA”) caused by an influenza (“flu”) vaccination. Petition at 

1. The case was assigned to the Special Processing Unit (“SPU”) of the Office of 

Special Masters and the undersigned issued a Ruling on Entitlement finding petitioner 

entitled to compensation for a SIRVA. For the reasons discussed below, the 

 

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 

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, the 

undersigned agrees that the identified material fits within this definition, the undersigned will redact such 

material from public access. Because this unpublished decision contains a reasoned explanation for the 

action in this case, undersigned is 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).

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

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

300aa (2012).
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undersigned now awards compensation in the amount of $85,000.00 for past pain and 

suffering, and $1,027.83 for past unreimbursable medical expenses. 

I. Procedural History 

On March 21, 2017, petitioner filed a petition for compensation. ECF No. 1. On 

March 23, 2017, petitioner filed medical records (ECF No. 6) and a statement of 

completion on March 30, 2017. ECF No. 8. On May 2, 2017, petitioner filed an 

affidavit. ECF Nos. 9. Updated medical records were filed on June 8, 2017 (ECF No. 

12), and July 20, 2017 (ECF No. 16), with an amended statement of completion filed on 

July 20, 2017. ECF No. 17. 

Respondent filed his Rule 4(c) report on March 27, 2018, in which he conceded 

that petitioner was entitled to compensation. ECF No. 33. On March 29, 2018, the 

undersigned issued a ruling on entitlement finding petitioner entitled to compensation for 

a SIRVA. ECF No. 34. The parties then began the process of negotiating the 

appropriate amount of damages.

On August 15, 2018, respondent filed a status report stating that an offer of 

damages was made on August 9, 2018, which petitioner did not accept. ECF No. 39. 

On September 13, 2018, a scheduling order was issued. ECF No. 41. The scheduling 

order noted that the only issue in dispute was damages relating to pain and suffering. 

Id. Petitioner filed a Motion for Finding of Fact Regarding Damages on September 14, 

2018. ECF No. 40. Respondent filed Respondent’s Brief on Damages on September 

28, 2018, (ECF No. 42), and petitioner filed a reply on October 5, 2018. ECF No. 43. 

This case is now ripe for a determination regarding petitioner’s pain and suffering 

award. 

II. Relevant Medical History

Petitioner received a flu vaccination on October 8, 2015 in her left shoulder. Ex. 

1 at 2. Petitioner’s prior history includes arthroscopic debridement and repair of her 

right shoulder labrum in April of 2013. Ex. 2 at 1-4.

On October 27, 2015, petitioner saw Dr. Anthony Wallace, an orthopedist, 

complaining of left arm pain immediately following a flu shot. Ex. 5 at 13. At that time, 

petitioner stated her pain was “8/10 on the pain scale,” occurred with overhead lifting, 

and that she experienced mild weakness. Id. However, an evaluation showed 

petitioner had a full range of motion and full strength at that time. Id. at 15. Neer’s 

maneuver and Hawkins maneuver were positive, but crossover test and O’Brien’s test 

were negative. Id. Petitioner received a steroid injection at that time and Dr. Wallace 

noted “[c]onstellation of symptoms resembles impingement.” Id. at 15-16. Imaging and 

non-steroidal anti-inflammatory drugs were avoided because petitioner may have been 

pregnant. Id. at 16. Dr. Wallace performed a subacromial injection. Id. at 16.
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Petitioner saw Dr. Mark Hines, a pain management specialist, due to right 

shoulder pain and right cervicalgia on December 29, 2015. Ex. 2 at 1-4. Petitioner 

reported that she began developing shoulder pain about 12-18 months earlier, and 

returned to physical therapy. Petitioner did not mention left shoulder pain at that time. 

Id. 

Petitioner attended physical therapy for right neck and shoulder pain from

December 31, 2015 through July 13, 2016. Ex. 11 at 192, 395-98.

On January 11, 2016, petitioner returned to Dr. Wallace for left shoulder pain. 

Petitioner reported that the steroid injection had provided some relief, but described her 

pain as 4-5 out of 10. Ex. 5 at 8. Petitioner also stated that the pain was worse with 

overhead activity and when lying directly on it, but it did “not really wake her from sleep.” 

Id. Petitioner had a full range of motion and full strength at that time. Id. at 11. Further, 

Neer’s maneuver and O’Brien’s tests were positive, but Hawkins maneuver and 

crossover tests were negative. Id. An ultrasound was performed, which showed no 

partial or high-grade tearing of the rotator cuff tendon, normal glenohumeral and 

acromioclaviular joints, and negative dynamic impingement testing. Id. at 12. Dr. 

Wallace noted that it was possible the vaccine injection could have penetrated her 

subacromial space and caused an inflammatory reaction. Id.

An MRI arthrogram of petitioner’s left shoulder was performed on January 29, 

2016. Ex. 3 at 377. The MRI showed mild degenerative arthrosis of the 

acromioclavicular joint with small superior sublabral recess, and a less likely small 

superior labral tear from anterior to posterior (“SLAP”) lesion. Id. 

On February 3, 2016, petitioner saw Dr. Hines again for cervical dystonia, and 

complained of left lateral shoulder pain that began after her October 15 vaccination. Ex. 

2 at 5-6. Petitioner reported that “she had pretty severe pain that she [felt] is more 

restrictive and internal and not necessarily superficial.” Id. at 5. Dr. Hines noted that 

petitioner’s left shoulder “is painful and she lacks internal rotation by about 15 degrees 

at 90 degrees of abduction.” Id. Dr. Hines recommended physical therapy and dry 

needling. Id. at 6.

Petitioner received dry needling in her left shoulder during two physical therapy 

visits that were intended to address pain in her previously injured right shoulder. Ex. 11 

at 218, 226. At a February 3, 2016 physical therapy session, petitioner’s therapist noted 

that petitioner received dry needling on her left shoulder muscles to help with the neck 

shoulder cervical rotation. This improved the left shoulder comfort but was “a secondary 

effect and not the focus of today’s treatment.” Id. at 227. The therapist added that they 

were not getting full improvement of petitioner’s neck dysfunction because of the “left 

shoulder inflammation and irritation that occurred with her left shoulder flu shot.” Id. 

On March 11, 2016, petitioner saw Dr. Martin for a follow-up for her left shoulder 

pain. Ex. 5 at 3. Petitioner reported that she continued to have mild to moderate pain 

that woke her from sleep if she rolled over onto it and pain with overhead activity. Id. 
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An examination revealed petitioner had full range of motion and full strength on internal 

and external rotation. Id. at 6. Dr. Martin noted that petitioner may have a small SLAP 

tear, but that she did not want to undergo surgery due to the “significant difficulty postop 

with her rehabilitation and pain in regard to the right [shoulder surgery].” Id. at 7. A left 

glenohumeral shoulder injection of lidocaine and Kenalog was performed on March 17, 

2016, that resulted in “[i]mmediate improvement in pain and symptoms.” Id. at 2. 

On April 22, 2016, petitioner saw Catherine Norton, M.D., for a physical. Ex. 6 at 

3-6. Petitioner’s medical history included “Left shoulder labrum tear and impingement 

syndrome 2015.” Id. at 3. However, there was no indication that she reported any pain, 

reduced strength, or reduced range of motion at that time. Id. at 3-6. 

During a physical therapy session on May 25, 2016, petitioner underwent soft 

tissue manipulation of her left subscapularis, dry needling of her left anterior deltoid, and 

thermal treatment of her left bicep tendon. Ex. 11 at 352. 

On May 31, 2016, petitioner saw Donald D’Alessandro, M.D., an orthopedist, for 

a follow-up regarding her right shoulder injury. Ex. 8 at 3-10. There was no indication 

that she reported any left shoulder pain, reduced strength, or reduced range of motion 

at that time. Id. 

Petitioner returned to Dr. Hines for follow-up of her right shoulder pain on July 7, 

2016. She reported that she was about 85-90% improved, but was concerned because 

her symptoms recurred when she stopped therapy. Ex. 9 at 2-4. Petitioner reported that 

her pain was not overwhelming, and at that time was reported as “1/10”. Id. However, 

there was no indication that she reported any pain, reduced strength, or reduced range 

of motion of her left shoulder at that time. Id. 

Petitioner gave birth to a baby girl on April 4, 2017. See generally Ex. 12. The 

admission information identifies Dr. Martin as a medical provider that she saw for 

unspecified “shoulder pain.” Id. at 218. 

Petitioner returned to Dr. Martin on February 20, 2018 for a follow-up for left 

shoulder pain. Ex. 13 at 3. Dr. Martin reported that petitioner “[b]ecame pregnant, and 

has not been to see me in approximately 1.5 years.” Id. at 3. Petitioner also reported 

that the injection she received at her last visit in 2016 improved her symptoms, however 

they “[s]lowly recurred over time.” Id. Petitioner had not done any physical therapy 

regarding her left shoulder, and she experienced pain with overhead activity that was 

“better with anti-inflammatories.” Id. On examination, petitioner showed normal 

strength and full range of motion in forward flexion and external rotation, and no 

tenderness to palpation. Neer’s maneuver, Hawkins maneuver, and crossover tests

were positive, but O’Brien’s test and empty can test were negative. Id. Petitioner was 

assessed with left shoulder impingement syndrome and it was recommended that she 

attend physical therapy as well as take 800 mg of ibuprofen three times a day. Id. Dr. 

Martin also stated petitioner should “[f]ollow-up if not improving, would perform 
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subacromial injection at that time.” Id. There is no indication that petitioner pursued 

physical therapy or additional subacromial injections.

III. Affidavit Evidence

On July 5, 2018, petitioner filed an affidavit regarding pain and suffering. Ex. 15. 

Petitioner described how, prior to her vaccine-related injury, she was extremely active 

including exercising 4-5 times per week and taking walks with her two dogs. Id. at 1. 

Petitioner was dependent on her left arm due to a previous right shoulder injury. Id.

According to petitioner, the injury delayed recovery of her right shoulder. Id. at 2. 

Further, petitioner stated that her prior history of right shoulder pain “should be seen as 

an aggravating factor” because it “took out my one good arm, the one I had relied on 

and would be relying on as I continued to recover from my right shoulder surgery.” Id.

at 4-5.

The SIRVA also altered petitioner’s physical activity. Petitioner could not 

exercise with the same frequency or intensity in the months after her injury. Id. at 3. 

The injury also negatively impacted her physical activities, such as swimming and 

bowling. Id. at 7. Petitioner stated she can no longer walk her dogs without her 

husband because she “cannot manage both on a leash if they decide to start pulling.” 

Id. at 3.

Petitioner described how the injury effected her professional life as a nurse. Due 

to her SIRVA, petitioner claims she cannot physically move patients without assistance, 

making her less efficient and effective. Id. at 2.

Petitioner provided additional details regarding her treatments as well, explaining 

that she was unable to pursue aggressive treatment because she was pregnant. 

Further, petitioner did not “feel the need to return for follow-up visits simply to check in 

with [her] doctors, because, as a nurse practitioner, I have a sufficient knowledge of 

medicine to monitor my own status and progress.” Id. at 5. 

The SIRVA also impacted petitioner’s personal life. Immediately following the 

injury, she was forced to rely on her husband to help with everyday tasks including 

showering, changing clothes, and transportation. Additionally, the injury caused 

significant anxiety because “[t]he prior shoulder injury on the other side had culminated 

in a disastrous surgery, and I was terrified that this new injury would result in the same 

level of trauma, disruption, and pain.” Id. at 3. The injury also negatively effected

caring for her newborn daughter due to weakness and pain in her shoulder. Id. at 5.

Regarding petitioner’s current condition, she assessed herself at 65-75% of her 

prior capacity. Petitioner stated that she continues to have weakness and soreness in 

her left shoulder. Petitioner also described how she has difficulty with tasks such as 

physically interacting with her young child, managing her luggage when she travels, and 

moving patients in her capacity as a nurse. Id. at 2, 8. Petitioner also “cannot sleep on 

the side of [her] affected arm” due to pain. Id. at 3. Currently, petitioner is not 
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scheduling additional visits for her shoulder as she is “relying instead on [her] own base 

of knowledge as a treater.” Id. at 8.

IV. Party Contentions 

Petitioner requests $114,027.83 in compensation, consisting of $1,027.83 for 

past unreimbursable medical expenses and $113,000.00 for pain and suffering. 

Petitioner’s Motion for Finding of Fact Regarding Damages (“Pet. Brief”) at 1, 3. 

Petitioner represented that the unreimbursable medical expenses are not contested by 

respondent, and the only issue in dispute is that of pain and suffering. Id. at n.1. Thus, 

the only disputed issue before the undersigned is the amount of damages to be 

awarded for pain and suffering.

Petitioner argues that she should be awarded $113,000.00 based on three years 

of ongoing symptoms and “the foreseeable future of residual effects over additional 

years (reduced to net present value)....” Pet. Brief at 3. Petitioner compares the instant 

case to Derosiers, in which damages were decided by the undersigned. Id. at 3-4. 

Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 

2017) (awarding $85,000.00 for pain and suffering). Petitioner notes that, like the 

petitioner in Desrosiers, petitioner was limited in her treatment options due to her 

pregnancy, and her injury was complicated by the need to care for a newborn. Unlike 

Desrosiers, petitioners’ course of injury proved to be more severe. Petitioner asserts 

that she continues to suffer from adverse symptoms and underwent more aggressive 

treatment, including two steroid injections, prescriptions anti-inflammatories, and 

physical therapy visits that included dry needling. Id. at 3, 4.

Petitioner further argues that using her medical records and treatment regimen 

as the primary measure of pain and suffering is inadequate (and even inappropriate). 

Petitioner’s counsel listed several factors that contributed to petitioner’s inability to 

actively pursue treatment, including: family obligations pertaining to her ill father, the 

construction of her a new home, graduate school, IVF treatments, pregnancy, and 

caring for her newborn daughter. Id; Petitioner’s Reply to Respondent’s Response to 

the Motion for Finding of Fact Regarding Damages (“Pet. Reply”) at 3.3 Moreover, 

according to petitioner’s counsel, the cessation of doctor visits “has no bearing on the 

level of suffering or emotional trauma [petitioner] has experienced.” Pet. Brief at 3. 

Further, petitioner’s counsel asserts that petitioner conducted much of her rehabilitation 

for her left shoulder through self-guided exercises. Pet. Reply at 2.

Respondent argues that petitioner should be awarded $85,000.00 in 

compensation for pain and suffering. Respondent’s Brief on Damages (“Res. Brief”) at 

1. Respondent notes that petitioner’s medical records reflect a relatively minor injury 

with relatively little related treatment. Res. Brief at 6. Respondent references four total 

orthopedic visits for petitioner’s left shoulder pain wherein petitioner’s strength and 

range of motion was normal, two steroid injections that appeared to provide significant 

 

3 Petitioner’s counsel failed to provide citations to the record for support of these points. 
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relief, and an MRI that showed only a possible SLAP tear and degenerative arthrosis. 

Id. Respondent also noted that by February of 2018 petitioner reported that pain did 

not interfere with her sleep, and she exhibited no tenderness to palpitation. Id. 

Moreover, while petitioner underwent extensive physical therapy for her pre-existing 

right shoulder and neck injury including dozens of sessions over seven months, only 

two included any treatment for her left shoulder. Id. 

Respondent contends that his position “is reasonable, especially in light of the 

seven publicly available pain and suffering award issued in SIRVA cases.” Id. at 7-8 

(citing Desrosiers, 2017 WL 5507804 at *5; Dhanoa v. HHS, No. 15-1011V, 2018 WL 

1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018); Marino v. HHS, No. 16-622V, 2018 WL 

2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018); Knauss v. HHS, No. 16-1372V, 2018 WL 

3432906 at *7 (Fed. Cl. Spec. Mstr. May 23, 2018); Kim v. HHS, No. 17-418V, 2018 WL 

3991022 (Fed. Cl. Spec. Mstr. Jul. 20, 2018).

Respondent argues that Desrosiers is distinguishable, because the amount 

awarded in that case (which is less than petitioner requests in this case) was based in 

significant part on extenuating circumstances related to that petitioner’s pregnancy. 

Respondent contends that here, petitioner gave birth in April 2017, and there is no 

evidence that this affected her treatment in 2015 and early 2016, noting that petitioner 

received extensive treatment for her right shoulder injury in 2016. Res. Brief at 7. 

Respondent also asserts that Marino is instructive here. In that case, petitioner’s 

shoulder injury interfered with her capacity to perform her job duties as a nurse 

practitioner and her ability to play tennis, resulting in the loss of petitioner’s enjoyable 

physical activity and outlet for stress relief. Id. at 7-8. 

V. Discussion

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.” § 15(a)(4). Petitioner bears the burden of proof with 

respect to each element of compensation requested. Brewer v. HHS, No. 93-92V, 1996 

WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). 

There is no formula for assigning a monetary value to a person’s pain and 

suffering and emotional distress. I.D. v. HHS, No. 04-1593V, 2013 WL 2448125, at *9 

(Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently 

subjective and cannot be determined by using a mathematical formula”); Stansfield v. 

HHS, No. 93-172V, 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.4I.D., 2013 WL 

 

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In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times 

petitioner was a competent adult with no impairments that would impact her awareness of her injury. 

Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s 

injury.
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2448125, at *9; McAllister v. HHS, 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). Further, when an amount is awarded for “projected”—i.e., future—

“pain and suffering,” such amount must be adjusted to its “net present value.” Childers 

v. HHS, No. 96-194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mst. Mar. 5, 1999) (citing 

Youngblood v. HHS, 32 F.3d 552 (Fed.Cir.1994)).

The undersigned may also look to prior pain and suffering awards to aid in her 

resolution of the appropriate amount of compensation for pain and suffering. Jane Doe 

34 v. HHS, 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, the undersigned also may rely on her own experience adjudicating 

similar claims.5 Hodges v. HHS, 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). Importantly, however, it must 

also be stressed that pain and suffering is not determined based on a continuum. 

Graves v. HHS, 109 Fed. Cl. 579 (2013). Instead, it is assessed 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. 

In that regard, the undersigned notes that over the past four years the SPU has 

acquired significant experience regarding pain and suffering damages in SIRVA cases. 

In Kim v. HHS, the undersigned explained that after four years of SPU experience, 864 

SIRVA cases were resolved informally as of July 1, 2018. Kim v. HHS, No. 17-418V, 

2018 WL 3991022, at *6 (Fed. Cl. Spec. Mstr. July 20, 2018). The undersigned noted 

that the median award for cases resolved via government proffer was $100,000.00 and 

the median award for cases resolved via stipulation by the parties was $71,355.26.6 Id. 

The undersigned noted that “to the extent prior informal resolutions are to be 

considered, the undersigned finds that the overall history of informal resolution in SPU 

provides a more valuable context for assessing the damages in this case. Since it 

reflects a substantial history of resolutions among many different cases with many 

 

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

Since that time, all SPU cases, which include the majority of SIRVA claims, have remained on the 

undersigned’s docket. 

6 The undersigned further stressed that the “typical” range of SIRVA awards – meaning the middle 

quartiles – is $77,500.00 to $125,000.00 for proffered cases and $50,000.00 to $95,228.00 for stipulated 

cases. The total range for all informally resolved SIRVA claims – by proffer or stipulation – spans from 

$5,000.00 to $1,500,000.00. Kim, 2018 WL 3991022, at *6. Importantly, these amounts represent total 

compensation and typically do not separately list amounts intended to compensate for lost wages or 

expenses. Id. The undersigned noted that “These figures represent four years’ worth of past informal 

resolution of SIRVA claims and represent the bulk of prior SIRVA experience in the Vaccine Program. 

However, these figures are subject to change as additional cases resolve and do not dictate the result in 

this or any future case. Nor do they dictate the amount of any future proffer or settlement.” Id.
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different counsel, the undersigned is persuaded that the full SPU history of settlement 

and proffer conveys a better sense of the overall arms-length evaluation of the 

monetary value of pain and suffering in a typical SIRVA case.” Id. at *9.

In their respective briefs, the parties compared the instant case to Desrosier, 

Dhanoa, Marino, Knauss, and Kim. Additionally, since the inception of SPU in July 

2014, there have been several reasoned decisions by the undersigned awarding 

damages in SPU SIRVA cases where the parties were unable to informally resolve 

damages.7 Typically, the primary point of dispute has been the appropriate amount of 

compensation for pain and suffering. 

A. Determining Petitioner’s Award of Pain and Suffering in This Case

Petitioner bears the burden of proof with respect to each element of 

compensation requested. Brewer, 1996 WL 147722 at *22-23. Further, just as 

entitlement cannot be “based on the claims of a petitioner alone, unsubstantiated by 

medical records or by medical opinion” (§13(a)(1)), neither can pain and suffering be 

based solely on the statements of petitioner. Petitioner argues that “it is altogether 

improper to use medical records as the sole or even primary index of pain and 

suffering”, and that the absence of specific references to symptoms within medical 

records are not “indicia to use as primary measurements of pain and suffering 

damages.” Pet. Brief. at 5, 8. However, contemporaneous medical records generally 

provide the most reliable supporting documentation of a medical condition and the effect 

it has on an individual’s daily life. See Shapiro v. HHS., 101 Fed. Cl. 532, 537-38 

(2011) (“[t]here is little doubt that the decisional law in the vaccine area favors medical 

records created contemporaneously with the events they describe over subsequent 

recollections”), citing United States v. U.S. Gypsum Co., 333 U.S. 364 (1948); see also 

Cucuras v. HHS, 993 F.2d 1525, 1528-29 (Fed. Cir. 1993) (noting that medical records 

are generally contemporaneous to the medical events recorded and are generally 

trustworthy records). In this case, there are few medical records and few 

contemporaneous records, making evaluation of petitioner’s pain and suffering 

challenging. 

A petitioner who seeks more medical care has not necessarily experienced a 

greater degree of suffering and distress than a petitioner who seeks less care. 

Individuals have differing levels of pain tolerance and different thresholds for seeking 

medical treatment. However, the undersigned is required to decide this case based on 

 

7 See, e.g., Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017); 

Dhanoa v. HHS, No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018); Marino v. HHS, 

No. 16-622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018); Collado v. HHS, No. 17-225, 2018 

WL 3433352 (Fed. Cl. Spec. Mstr. Jun. 6, 2018); Knauss v. HHS, No. 16-1372V, 2018 WL 3432906 (Fed. 

Cl. Spec. Mstr. May 23, 2018); Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. Jul. 20, 

2018); Dobbins v. HHS, No. 16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018); Dirksen v. 

HHS, No. 16-1461, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018); Cooper v. HHS, No. 16-

1387V, 2018 WL 6288181 (Fed. Cl. Nov. 7, 2018), Knudson v. HHS, No. 17-1004, 2018 WL 6293381 

(Fed. Cl. Spec. Mstr. Nov. 7, 2018).
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the evidence of record. A petitioner who has sought more medical care will often have 

more contemporaneous medical records documenting his or her pain and limitations, 

which will assist the petitioner in demonstrating his or her level of pain and suffering and 

emotional distress.

In determining an award in this case, the undersigned does not rely on a single 

decision or case. Rather, the undersigned has reviewed the particular facts and 

circumstances in this case, giving due consideration to the circumstances and damages 

in other cases cited by the parties and other relevant cases, as well as her knowledge 

and experience adjudicating similar cases. Upon the undersigned’s review of the 

complete record in this case and in consideration of the undersigned’s experience in 

evaluating SIRVA claims, the undersigned finds that an award of $85,000.00 for 

petitioner’s actual pain and suffering is appropriate in this case.

In the experience of the undersigned, awareness of suffering is not typically a 

disputed issue in cases involving SIRVA. In this case, neither party has raised, nor is 

the undersigned aware of, any issue concerning petitioner’s awareness of suffering. 

Thus, based on the circumstances of this case, the undersigned determines that 

petitioner had full awareness of her suffering. 

a. Severity of the Injury

Upon the undersigned’s review of the complete record in this case and in 

consideration of the undersigned’s experience evaluating SIRVA claims, petitioner 

appears to have suffered a shoulder injury that was relatively mild. That is, the 

available evidence demonstrates that petitioner’s injury was not severe, and the period 

of her recovery was not prolonged.

With respect to the severity of petitioner’s injury, her left shoulder was evaluated 

on four occasions. On October 27, 2015, 19 days after her vaccination, petitioner 

reported left shoulder pain of 8 out of 10. Ex. 5 at 13. However, she also exhibited a

full range of motion and strength at that time. Id. at 15. Petitioner’s medical records do 

not reference left shoulder pain again until January 11, 2016 when she categorized her 

pain as 4-5 out of 10, but that it was not so severe as to “wake her from sleep.” Id. at 

11. Petitioner next reported pain on March 11, 2016, which she reported as mild to 

moderate, and that it woke her from sleep if she rolled onto her left shoulder. Id. at 3. 

However, she continued to exhibit full range of motion and strength. Id. at 6. 

The last time petitioner sought care for her left shoulder was on February 20, 

2018, almost two years after her vaccination. At that time, petitioner reported that her 

symptoms improved after an injection in 2016, but that they had recurred over time. Ex. 

13 at 3. Physical therapy was recommended, however there is no indication that 

petitioner pursued that course of treatment. 

Additionally, between October 27, 2015 and February 20, 2018, there were 

multiple instances where petitioner sought medical care but the records do not mention 
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left shoulder pain. See, e.g., Ex. 2 at 1-4 (petitioner sought care for right shoulder pain 

and right cervicalgia but there is no mention of left shoulder pain); Ex. 6 at 3-6 (showing 

no mention of left shoulder pain during a physical examination by petitioner’s primary 

care physician); Ex. 8 at 3-10 (failing to note any left shoulder pain during an orthopedic 

follow-up for right shoulder injury).

Further, diagnostic testing indicated that petitioner’s SIRVA was not severe. For 

example, additional testing performed at various times, including Neer’s maneuver, 

Hawkins maneuver, the crossover test, and O’Brien’s test, were inconsistently positive. 

Ex. 5 at 15 (indicating Neer’s maneuver and Hawkins maneuver were positive, but 

crossover test and O’Brien’s test were negative); Ex. 5 at 11 (indicating Neer’s 

maneuver and O’Brien’s tests were positive, but Hawkins maneuver and crossover tests 

were negative). Moreover, petitioner’s MRI from January 11, 2016 revealed only mild 

degenerative arthrosis with small superior sublabral recess and, less likely, a small 

SLAP lesion. Ex. 3 at 277. 

b. Duration of the Suffering 

i. Past Pain and Suffering

Upon the undersigned’s review of the complete record in this case and in 

consideration of the undersigned’s experience evaluating SIRVA claims, petitioner 

appears to have suffered a relatively mild shoulder injury. 

As described above, petitioner initially presented with significant pain on October 

27, 2015. Ex. 5 at 13. However, she also exhibited a full range of motion and strength 

at that time. Id. at 15. Thereafter, petitioner’s shoulder pain was only documented

intermittently, and she never described a significant amount of pain. On January 11, 

2016 petitioner categorized her pain as 4-5 out of 10, but that it was not so severe as to 

“really wake her from sleep.” Id. at 11. On March 11, 2016, petitioner reported mild to 

moderate pain that woke her from sleep if she rolled onto her left shoulder and with 

overhead activity. Id. at 3. And on February 20, 2018, petitioner reported that her 

symptoms improved after an injection but recurred over time. Ex. 13 at 3. However, at 

that time petitioner had not done any recent physical therapy, and apparently did not 

choose to partake in any additional physical therapy despite her physician’s 

recommendation. Id. 

Petitioner did undergo certain testing and treatments for her shoulder pain, 

including an MRI, two cortisone injections, dry needling, and an at-home exercise 

program. The records indicate these treatments were effective, and not significantly 

onerous. For example, the cortisone injection on March 17, 2016 resulted in 

“[i]mmediate improvement in pain and symptoms.” Ex. 5 at 2. And while petitioner’s 

orthopedist considered her condition severe enough to recommend steroid injection 
12

treatment, there is no indication that surgery was suggested.8 As a whole, the medical 

records suggest a fairly limited period of mild to moderate pain lasting approximately six

months.9

Petitioner claims that she did not seek additional follow-up visits because “as a 

nurse practitioner, [she has] sufficient knowledge of medicine to monitor [her] own 

status and progress.” Ex. 15 at 5. Petitioner also self-assesses her current condition at 

65-75% of her prior capacity. Id. at 8. Petitioner’s counsel provides additional reasons 

for why she did not actively pursue treatment for her injury, namely 

Her life was very busy and stressful: Her father was on lifesupport over a 6-month hospital stay (which required 

Petitioner to be present daily at the hospital), she and her 

husband were overseeing construction of their home, she was 

in graduate school full-time (located four hours away from 

home), and she was undergoing IVF treatments (which is 

time-intensive). Then she was pregnant, had a baby, and her 

father died, so she had to deal with those affairs.

Reply Brief at 5-6. 

Despite petitioner’s affidavit, and petitioner’s counsel’s unsupported argument, 

the medical records are the most reliable evidence regarding a petitioner’s medical 

condition and the effect it has on her daily life. Shapiro, 101 Fed. Cl. 532, at 537-38. 

The paucity of relevant treatment records in this case leaves valuation of petitioner’s 

pain and suffering challenging. See, e.g. Marino, 2018 WL 2224736, at *8. Moreover, 

for the reasons described above, notwithstanding petitioner’s assertion that she pursued 

less than complete treatment of her injury, those records which do exist are not 

suggestive of a severe or prolonged injury.

The undersigned does note, however, that some additional (non-medical) 

mitigating factors are present in this case. Petitioner described her physical difficulty 

caring for her child and working while experiencing her shoulder pain as well as the 

emotional toll of this added stress. Ex. 15 at 6. Petitioner also described how her injury 

has negatively impacted her ability to exercise as she once did. Id. at 3, 7. Additionally, 

petitioner has suggested in her affidavit that a previous injury to her right shoulder made 

her left SIRVA that much more onerous as she could not rely on a healthy shoulder to 

assist in her recovery.

10

 

8 Records indicate that petitioner did “not want to undergo another surgical procedure” as of January 29, 

2016, but there is no indication that surgery was recommended or even considered. Ex. 5 at 7.

9 There were also multiple instances where petitioner’s medical records do not include any reference to 

left shoulder pain. See, e.g., Ex. 2 at 1-4; Ex. 8 at 3-10. 

10 Petitioner’s affidavit also describes ongoing pain and limitations of her left shoulder that are specifically 

contradicted by contemporaneous medical records. For example, petitioner claims that she cannot sleep 
13

To the extent petitioner has averred that she has ongoing pain, weakness, and 

limited range of motion, this is not substantiated in the record of the case. As noted 

above, petitioner’s most recent medical record does acknowledge “left shoulder pain”. 

However, that record is more than a year old and also acknowledged that an injection in 

2016 improved petitioner’s symptoms. Ex. 13 at 2. Moreover, as of February 20, 2018, 

petitioner’s orthopedist recommended only follow-up if not improving, and there is no 

evidence that petitioner ever returned or sought additional care elsewhere. Id. 

The undersigned finds the Marino and Desroisers decisions to be helpful in 

determining the appropriate award for petitioner’s past pain and suffering. Petitioners in 

both Marino and the present case reported significant pain at their initial medical 

evaluations. Ex. Ex. 5 at 13; Marino, 2018 WL 2224736, at *2-3. Like Marino, petitioner 

reported significant disruption of her employment duties and physically active lifestyle. 

Ex. 15; Marino, 2018 WL 2224736, at *4-5. Further, as in Marino, petitioner’s busy work 

schedule, family obligations, and status as a nurse practitioner contributed to her lack of 

ongoing medical care. Ex. 15; Marino, 2018 WL 2224736, at *2-3. 

Although petitioner in the instant case sought medical attention sooner and 

received additional treatment following her vaccination, the undersigned notes that the 

radiographic imaging in Marino revealed more significant shoulder pathology. 

Specifically, the April 2015 MRI in Marino revealed mild-to-moderate tendinosis and a 

tiny anterior peripheral leading edge bursal surface partial tear of the supraspinatus 

tendon. Id. at *2. By contrast, a January 11, 2016 MRI of petitioner’s left shoulder in 

the current case revealed only mild degenerative arthrosis with small superior sublabral

recess and, less likely, a small SLAP lesion. Ex. 3 at 277. In summary, the overall facts 

of both cases suggest a similar degree of shoulder impairment. 

Further, like Desroisers, petitioner was limited in her treatment options due to her 

pregnancy, and her injury was complicated by the need to care for a newborn. 2017 

WL 5507804, at *5. Petitioner’s course of treatment was also more extensive that in 

Desrosiers: here, petitioner underwent two steroid injections, prescriptions antiinflammatories, and physical therapy visits that included dry needling. However, unlike 

the instant petitioner, the petitioner in Desrosiers sought treatment on a more consistent 

basis, seeking treatment on 13 different occasions.

11

 As described above, petitioner in 

this case sought care intermittently. 

 

on her left side, and often awoke to searing pain from her shoulder injury. Ex. 15 at 3. However, her 

February 20, 2018 medical records specifically stated that her left shoulder pain “[d]oes not wake her 

from sleep at night.” Ex. 13 at 2.

11 As described in the decision awarding damages, the Desrosiers petitioner first sought treatment for her 

shoulder injury on March 24, 2015, within two weeks of her March 9, 2015 vaccination. From that point 

forward, she sought treatment on March 30, April 9, April 16, April 21, April 23, April 28, May 5, May 14, 

June 1, July 7, August 3, September 21, and October 6. 2017 WL 5507804, at *1-4.
14

Based on all of the information above, the undersigned finds that an award of 

$85,000.00 is appropriate for petitioner’s past pain and suffering. 

ii. Future Pain and Suffering

Petitioner argues in her brief that she will suffer pain and suffering and emotional 

distress as her residual symptoms persist. Pet. Brief at 2, 3.

12

 However, the 

undersigned does not find preponderant evidence to support future damages. 

In making this finding, the undersigned has considered petitioner’s brief and 

affidavit. As noted above, petitioner filed an affidavit dated approximately 36 months

after her vaccination in which she reported that “[a]t this point, I rate myself at between 

65% to 75% of my prior capacity for normal, day-today activities, and lower than that for 

specialized or strenuous movements.” Ex. 15 at 8. Petitioner provided no additional 

evidence in support of her claim for future pain, suffering, and/or emotional distress.

The undersigned finds the affidavit to be inconsistent with the available medical 

evidence of record in this case. This is significant because medical records are the 

most reliable evidence regarding a petitioner’s medical condition. Shapiro, 101 Fed. Cl. 

532, 537-38. Indeed, as described above, petitioner’s medical records reflect 

improvement of her left shoulder condition with treatment. For example, at an 

evaluation on February 20, 2018, petitioner had normal strength and range of motion. 

Ex. 13 at 3. Petitioner’s physician recommended only 800 mg of ibuprofen thrice daily, 

physical therapy, and ordered petitioner to return only if she did not improve. Id. 

Petitioner admitted in her affidavit that she has not returned for a follow-up, and that she 

has not felt the need to schedule additional visits. Ex. 15 at 8. Moreover, the record 

does not reflect evidence of additional medical treatment for petitioner’s left shoulder 

after February 20, 2018. Taken together, petitioner’s medical records and lack of 

ongoing treatment are inconsistent with the degree of symptoms alleged in petitioner’s 

affidavit. 

Petitioner asserts that her knowledge as a nurse practitioner providers her with 

sufficient knowledge of medicine to monitor her own status and progress. Ex. 15 at 5.

13

 

However, the undersigned does not find petitioner’s position, or her self-assessment, to 

constitute preponderant evidence to support an award for future pain and suffering. The 

undersigned notes that petitioner bears the burden of proof with respect to each 

 

12 Petitioner’s Reply Brief does not appear to argue for future pain and suffering, as it requests that the 

Court make a factual finding for only pain and suffering that petitioner has already sustained. See Pet. 

Reply at 6 (stating “Petitioner MOVES the Court to make Factual Findings that Petitioner has sustained

pain and suffering damages amounting to $113,000.00 ....”) emphasis added.

13 Initially, there is no evidence that petitioner possesses additional training, certification, or expertise in 

orthopedic medicine. Even if such evidence were furnished, the record does not contain medical records 

to evaluate the basis or supportability of her opinion. There are no other statements or opinions from 

petitioner’s medical providers to support an award of future pain and suffering. 
15

element of compensation requested. Brewer, 1996 WL 147722, at *22-23. Based on 

the information above, the undersigned does not find preponderant evidence to support 

an award of future pain and suffering in this case. 

VI. Conclusion

In light of all of the above, and in consideration of the record as a whole, the 

undersigned finds that petitioner should be awarded $85,000.00 in compensation for 

actual (or past) pain and suffering and $1,027.83 in compensation for past 

unreimbursable expenses. The undersigned makes no award for projected pain and 

suffering, future medical expenses, or past or future lost wages.

Accordingly, the undersigned awards petitioner a lump sum payment of 

$86,027.83, representing $85,000.00 in compensation for actual pain and suffering 

and $1,027.83 in compensation for past unreimbursable expenses, in the form of 

a check payable to petitioner, Joanna Weber. This amount represents 

compensation for all damages that would be available under § 300aa-15(a). 

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

decision.14

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 

14 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.