         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1372V
                                      Filed: May 23, 2018


    RICHARD KNAUSS,

                        Petitioner,                          Special Processing Unit (SPU);
    v.                                                       Decision Awarding Damages; Pain
                                                             and Suffering; Pneumococcal
    SECRETARY OF HEALTH AND                                  Conjugate Vaccine; Shoulder Injury
    HUMAN SERVICES,                                          Related to Vaccine Administration
                                                             (SIRVA)
                       Respondent.


Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

      On October 20, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered from a right shoulder injury related to
vaccine administration (“SIRVA”) as a result of receiving a pneumococcal conjugate
vaccine, Prevnar 13, on September 9, 2015. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.

        On September 5, 2017, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for a SIRVA. Petitioner did not request
compensation for lost wages or future medical expenses. The parties also agree to an
award for petitioner’s past out-of-pocket expenses. Thus, the only issue remaining
before the undersigned is the amount of damages that petitioner shall be awarded in
compensation for pain and suffering pursuant to § 15(a)(4). For the reasons described
1
  Because this decision contains a reasoned explanation for the action in this case, the undersigned
intends 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). 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.
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).
below, the undersigned finds that petitioner is entitled to an award of damages in the
amount of $60,000.00 for pain and suffering. The undersigned finds that petitioner is
entitled to a total award of $60,170.00.

    I.       Procedural History

       On October 20, 2016, petitioner filed a petition for compensation under the
Vaccine Act, alleging that he suffered from a right shoulder SIRVA as a result of
receiving a pneumococcal conjugate vaccine on September 9, 2015. Petition at 1.

       On February 16, 2017, respondent filed a status report stating that he was willing
to engage in discussions regarding potential settlement. ECF No. 12. Thereafter, the
parties engaged in settlement discussions and exchanged demands and counteroffers.
See ECF Nos. 14, 16, 18, 20.

        On July 19, 2017, petitioner filed a status report stating that the parties have
been unable to reach an agreement. ECF No. 23. During a status conference,
respondent stated that he will not contest entitlement, however the parties stated that
they have been unable to reach an agreement with regard to petitioner’s pain and
suffering. ECF No. 24. On September 1, 2017, respondent filed a Rule 4(c) Report
conceding that entitlement to compensation is appropriate in this case. ECF No. 26 at
5. The undersigned issued a ruling on entitlement on September 5, 2017, finding
petitioner entitled to compensation for his SIRVA. ECF No. 27.

       The parties also submitted a joint status report on September 1, 2017, advising
the Court that they wished to have a damages hearing. ECF No. 25. The parties
submitted pre-hearing briefs on November 17, 2017. ECF No. 31, Petitioner’s Brief in
Support of Damages (“Pet. Br.”) and ECF No. 30, Respondent’s Brief on Damages
(“Res. Br.”).

        The undersigned held a damages hearing on December 14, 2017. Petitioner
testified, and presented two witnesses for additional testimony, Juan Kauer and Susan
Stevens. Transcript of Proceedings held on December 14, 2017 (“Tr.”).

          This case is now ripe for a determination concerning petitioner’s damages.

    II.      Fact History

       Prior to September 9, 2015, petitioner complained of right shoulder pain with
range of motion pain on September 21, 2012. Ex. 2 at 43-44.3 An examination of his
shoulder revealed pain with range of motion, however the “pain etiology [was] not clear.”
A subsequent x-ray revealed degenerative changes with sclerosis and remodeling of
the glenoid, but no fracture or dislocation. Id. at 91. Upon review of the x-ray, petitioner
was assessed with degenerative joint disease. Id. at 41, 45.

      On September 9, 2015, petitioner, at the time a seventy-two year old right-
handed man, received an influenza vaccine in his left upper arm and a pneumococcal
conjugate vaccine, Prevnar 13, in his right upper arm. Ex. 2 at 19.
3
 Petitioner also reported episodic minor tremors in his right hand, however stated at the hearing that no
doctor has ever told him the tremor was caused by the vaccination. Tr. at 66.
                                                     2
       An undated Vaccine Adverse Event Reporting System (“VAERS”) form indicated
that petitioner received a flu vaccination in his left shoulder, and a Prevnar 13
vaccination in his right shoulder on September 9, 2015. The VAERS report also
indicated the onset of petitioner’s adverse event was on September 9, 2015. Ex. 1 at 2.

       Three months after receiving the vaccination, petitioner reported on December 2,
2015 to Dr. Mark Koshar that he “had flu shot and prevnar shot at pharmacy on 9/9/15
and still has problems with arm….” Petitioner also stated that since his shot “Pain in
area shot [sic] Radiating down arm and arm feels weaker”. Ex. 2 at 9. A
musculoskeletal exam showed range of motion caused pain, and there was tenderness
at the previous injection site. Id. at 10. An x-ray of petitioner’s right shoulder was
ordered, which was taken on December 3, 2015. The x-ray showed no evidence of a
fracture, dislocation, or degenerative changes. Id. at 16-17. Dr. Koshar recommended
a physical therapy consultation. Id. at 18.

       Petitioner began physical therapy on December 16, 2015 at BT Rehab Services.
Petitioner’s initial evaluation states:

              [B]ack in Sept, [petitioner] got the flu shot and pneumonia shot
              and had a bad reaction. Has had a dull ache since then also
              this has improved. Reports pain the most pain now with
              swimming when the arm is elevated above the shoulder.
              Does laps at the local community pool. Also reports shoulder
              pain with raking, yard work, lifting heavy boxes. Denies
              difficulty with reaching behind head, but does report difficult
              reaching behind the back… Also reports sleep disturbances
              due to shoulder… Not taking anything for pain.
Ex. 3 at 9.

        The initial evaluation also states that petitioner’s pain improves with rest, and that
he has difficulty writing due to an unrelated shaking in his wrist. Id. Petitioner reported
that he felt his right arm was getting weaker, and that at that time the pain severity was
0, and at worst reported it was 9. Id. at 9. An objective evaluation showed petitioner’s
range of motion in his right arm was limited and painful at certain times. However, his
right arm strength was not reported as decreased. Id. at 10.

        Between December 16, 2015 and February 3, 2016, petitioner had 14 physical
therapy sessions. Ex. 3 at 9-31. The physical therapy notes indicate petitioner was
improving. On January 13, 2016, petitioner stated he felt his shoulder was 75%
improved and that he mainly experienced pain with reaching, lifting, and carrying items.
Id. at 21. Petitioner also reported his pain at that time was 1.5.

       Petitioner sought medical treatment again on February 4, 2016, complaining of
pain in his shoulder that restricted his range of motion. Ex. 2 at 13. An evaluation of his
shoulder showed petitioner’s range of motion was “improved but restricted due to
ongoing discomfort”. Id. at 14. Petitioner was advised to keep attending physical
therapy. Id. at 15.



                                              3
       Petitioner attended another physical therapy session on February 5, 2016, where
he reported his pain at 1/10, and, at that time, “complaints are improving.” Petitioner
also stated he was scheduled for “an injection” on February 10th. Ex. 3 at 29.

         On February 10, 2016, petitioner was evaluated by Dr. Dale Federico for
shoulder pain. The physical examination by Dr. Federico showed “no motor or sensory
deficit” and that “[Petitioner] has full range of motion of his shoulder, full flexion, full
abduction, symmetrical rotation.” Ex. 2 at 23. The examination also showed that
“[petitioner] does have pain with impingement test.” Ex. 2 at 23, Ex. 4 at 9. Dr.
Federico’s impression was rotator cuff irritation secondary to injection. Ex. 2 at 23, Ex.
4 at 9. On February 10, 2016, Dr. Federico noted that “it was suggested that a
cortisone injection would be necessary.” Ex. 2 at 23, Ex. 4 at 9. However, no injection
was administered.

       Petitioner saw Dr. Dale Federico on February 16, 2016, to review the results of
an MRI. Ex. 2 at 24, Ex. 4 at 8. The MRI showed rotator cuff tendinosis, but no
evidence of an old rotator cuff tear and mild reactive edema proximal humerus. Ex. 2 at
24, Ex. 4 at 8.4 Dr. Federico stated that petitioner’s “best choice at this point would be
an exercise program, strengthening and range of motion.” Ex. 2 at 24, Ex. 4 at 8.

         Petitioner reported his pain at between 1.5 and .5 over 9 physical therapy
sessions between January 13, 2016 and February 17, 2016. Ex. 3 at 21-66. On
February 17, 2016, petitioner attended his last physical therapy session. Id. at 30. At
that time, he stated his shoulder was 94% improved, although he was “still having pain
with lifting items such as milk, grocery bags.” Id. at 31. Petitioner also stated that “MD
did not recommend an injection.” Id. at 31. Petitioner canceled his final two physical
therapy sessions, stating he was doing his home exercises and “feels good so he would
like to play it by ear.” Id. at 33.

        Approximately six months later, on August 29, 2016, petitioner again complained
of right arm pain to a second orthopedist, Dr. Kenneth Brislin. Ex. 5 at 5. Petitioner
reported “improved range of motion; however, he still does not have full range of motion
and is unable to do some of his desired activities such as swimming.” Id. at 5. Petitioner
reported to Dr. Brislin that he continued to have difficulty with overhead activity, difficulty
with swimming, especially doing the backstroke, and pain at night. Dr. Brislin also noted
that petitioner “reports that he typically does several mission trips a year for his church.
However, he has not been cleared to participate in his trips secondary to his continued
shoulder pain.” Id. at 5. Petitioner was diagnosed with “disorder of bursa of shoulder
region.” Id. at 8. Dr. Brislin ordered a second MRI, and stated that he “may benefit from
a steroid injection.” Id.5


4
 Petitioner contends in his brief that the MRI revealed “mild reactive edema of petitioner’s proximal
humerus and mild tendonitis and bursitis.” However, there is no evidence in the medical record reflecting
petitioner was suffering from, or diagnosed with, bursitis at that time. See Pet. Br. at 3.
5
  Dr. Federico noted that petitioner was seen and evaluated by Lehigh Valley Hospital orthopedic surgeon
who “diagnosed him with bursitis” and an MRI was ordered which confirmed bursitits. However, the
records indicate petitioner was not diagnosed with bursitis, but tendinosis, and there is no evidence that
an MRI prior to August of 2016 indicated petitioner was suffering from bursitis.

                                                    4
        On September 12, 2016, petitioner saw Dr. Brislin a final time for right shoulder
pain. Petitioner reported that his range of motion was limited and he “cannot do a
backstroke.” Ex. 5 at 1. A review of petitioner’s range of motion showed “sudden
[range of motion] end-point with pain.” Id. at 3. However, petitioner’s shoulder strength
was not diminished. Id. Dr. Brislin also reviewed petitioner’s second MRI, which
showed tendinosis about the anterior distal supraspinatus tendon and some bursitis. Id.
The MRI also showed petitioner had a small partial-thickness rotator cuff tear about the
anterior distal supraspinatus tendon that Dr. Brislin felt “may represent just tendinosis.”
Id. at 4. Petitioner was assessed with disorder of the bursa of the shoulder region, and
the record includes “Note to Provider: Right Shoulder Bursitis, tendinitis.” Id. at 4. A
steroid injection was provided. Id. Dr. Brislin also stated that “I feel that we can treat
this shoulder conservatively,” and recommended over-the-counter medication and
therapy to work on rotator cuff stretching and strengthening. Id. Petitioner was referred
to physical therapy for bi-weekly sessions over six weeks and scheduled to follow-up
with Dr. Brislin on October 10, 2016. Id. Petitioner did not follow-up with Dr. Brislin or
attend additional physical therapy sessions.

        A. Effect of Petitioner’s SIRVA on Volunteer Work

        Petitioner has been involved in volunteer work for many years, including traveling
for youth mission trips with his church. Petitioner testified that between 1985 and 2014
he participated in “14 or 15” mission trips, including trips to Hawaii, Glasgow, Scotland,
Hungary, Argentina, and Costa Rica. Tr. at 25-27.6 Following his SIRVA, petitioner
testified that he had to cancel a mission trip to Argentina in 2015 (Id. at 29), and that “I
wanted to go to the mission trip to Spain, and the doctors wouldn’t release me….” Id.,
see also id. at 13 (Juan Kauer, testifying that petitioner was “really missing the
opportunity to go to Spain with us, and he was very, very sad about that”). Petitioner
further explained that he had a desire to continue traveling, however “the doctors won’t
release me. I can’t carry the – my suitcases, and if I get sick, I need that medical
attention.” Id. at 31-32. On cross-examination, petitioner added that “Dr. Koshar said
he didn’t want me to fly internationally in case I, you know, would have any problems
overseas. So that’s – you know, so that’s – he did that, and then I didn’t go to Spain.”
Id. at 56. There is no record of Dr. Koshar’s advice though, because according to
petitioner, it was given “over the phone”. Id. Petitioner is still able to travel, as he
testified that he traveled in 2017 by plane to California for a week to visit family. Id. at
45.

        In addition to impacting his ability to volunteer abroad, petitioner also testified
that his injury has impacted his ability to help people in his local community, stating he
had to refocus and he is not able to do the things that he used to do. Tr. at 29.

        B. Current Status

       At the time of the hearing, petitioner provided additional testimony and evidence
regarding his current condition.

        Petitioner stated he still is able to swim, but that he must do stretching every day.
Tr. at 32-33. Petitioner also testified that he is unable to perform the butterfly swimming

6
  Petitioner’s briefing includes descriptions of 14 mission trips, however no affidavit or additional details
have been submitted other than the testimony provided by petitioner at the December 14, 2017 hearing.
                                                       5
stroke, however, he is able to do the backstroke again, even though he “wasn’t able to
do [his] backstroke in [his] swimming” for a period to time. Id. at 63-64.

        With regard to pain and the current effect of his SIRVA on his daily life, petitioner
testified that he still has some pain, and a shake in his hand now (Tr. at 32)7, but when
asked if he still “has any pain in [his] right shoulder”, testified he did not. Id. at 67.
Petitioner, who lives alone (id. at 40), continues to handle house work and tasks like
cutting the lawn and grocery shopping, and has no physical limitations. Id. at 40-42. In
addition, petitioner does not have trouble dressing, can reach behind his back, no
longer has any pain, and can sleep on his side for portions of the evening. Id. at 64-67.
And while petitioner testified there is nothing he can no longer do with his right arm due
to the problems he had after the injection, this is in part because he has learned to
compensate. Id. at 65. For example, petitioner explained that he uses his left hand to
carry items such as a cup of coffee because he is still unsteady, or feels weak. Id.

       Petitioner testified that he continues to stay active in his church, singing in the
choir and is “in missions” (Tr. at 40), and he recently volunteered locally as an advisor at
the Easton Children’s Home. Id. at 58.

    III.    Contentions of the Parties

       Petitioner requests reimbursement of $170.00 for past out of pocket medical
expenses. Respondent states that he does not object to that amount. Petitioner has
not claimed lost wages. Thus, the only disputed issue before the undersigned is the
amount of damages to be awarded for pain and suffering.

        Petitioner seeks a pain and suffering award of $150,000.00 for past pain and
suffering, and $120,000.00 for future pain and suffering damages.

        Petitioner cites one other SIRVA damages award involving a pregnant woman
who was diagnosed with rotator cuff tendinosis and subacromial bursitis following a
tetanus, diphtheria, acellular pertussis (“Tdap”) vaccination. Pet. Br. at 4. In that case,
the petitioner underwent an ultimately unsuccessful six-week course of physical
therapy, and was unable to utilize other treatment such as prescription medications,
steroid injections, or arthroscopic surgery because of her pregnancy. Consequently,
petitioner struggled to care for her newborn child. Id. at 4-5. Petitioner emphasizes
that, due to his shoulder injury, he was forced to cancel a mission trip to Argentina in
2015 and Spain in 2017. Id. at 6. Further, because petitioner will not travel on another
mission, he “has been deprived of the opportunity to end his work on his own terms.”
Id. at 7.

      Respondent proposes an award of $30,000.00 in pain and suffering. Res. Br. at
1. Respondent asserts that the medical records reveal petitioner’s right shoulder pain
was relatively mild, and could have been due in part to a preexisting degenerative joint
disease. Id. at 5. Respondent also contends that petitioner did not seek treatment until
almost three months after the vaccination, and that his symptoms were nearly
completely resolved by February 17, 2016, less than six months after his Prevnar 13

7
  Petitioner’s hand tremor is unrelated to his SIRVA injury. See Tr. at 66 (petitioner testifying that a doctor
has not stated the tremor was caused by the vaccination); Ex. 3 at 9 (petitioner’s initial physical therapy
evaluation states shaking in his wrist is unrelated to his right arm pain).
                                                       6
vaccination. Id. at 6. While petitioner did seek additional treatment in August of 2016,
respondent highlights petitioner’s ability to deal with his injury without treatment for long
periods of time.

      IV.     Discussion

        There is no formula for assigning a monetary value to a person’s pain and
suffering. See I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL
2448125 at *9 (Fed. Cl. Spec. Mstr. May 14, 2013), originally issued Apr. 19, 2013
(“I.D.”) (“Awards for emotional distress are inherently subjective and cannot be
determined by using a mathematical formula”); Stansfield v. Sec’y of Health & Human
Servs., 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”). 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.

        There are three published decisions involving damages awards for a SIRVA
where the damages were not based on informal agreements between the parties. In
the first, Desrosiers v. Sec’y of Health & Human Servs., No. 16-224V, 2017 WL
5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017), the undersigned awarded $85,000.00
for pain and suffering to a petitioner who suffered a SIRVA after receiving a Tdap
vaccine in March 2015. Id., at *1.

        The petitioner in Desrosiers is distinguishable. In that case, petitioner was
hampered by the fact that she was six months pregnant at the time of the vaccination.
She was unable to avail herself of treatments which could have improved her condition
such as pain medication, steroid injections, and surgery. Additionally, the petitioner in
that case was attempting to work while caring for her one-year-old child and, after giving
birth, her infant. The Desrosiers petitioner also suffered a relapse after giving birth, and
her shoulder injury affected her ability to care for her newborn baby. Id. at *3-4. The
petitioner in Desrosiers experienced the most severe symptoms for seven months and
the duration of her symptoms was at least two and a half years. Id. The decision in
Desrosiers expressly stated that the amount of the award was calculated in part to
reflect petitioner’s particular circumstances and limitations in treatment options imposed
by her pregnancy. Id. at *5.

        In another decision awarding damages not based on an informal agreement
between the parties related to a SIRVA, Dhanoa v. Sec’y of Health & Human Servs.,
No. 15-1011V, 2018 WL 122192 (Fed. Cl. Spec. Mstr. Feb. 1, 2018), the undersigned
awarded $85,000.00 for past pain and suffering, $10,000.00 for future pain and
suffering for the year following the decision, and $862.15 for past unreimbursable
medical expenses, for a total of $95,763.14.8 The petitioner in Dhanoa suffered a
SIRVA after receiving a flu vaccine in August 2014. In Dhanoa, the petitioner’s initial
pain level was 5 out of 10, but three months post-vaccination had risen to “nine and
8
    The award for future pain and suffering was reduced to a present value of $9,900.99.
                                                      7
one-half or ten and one-half.” Dhanoa, 2018 WL 122192, at *3. In Dhanoa, the
petitioner sought treatment off and on for a period of over three years. Id. at *4-5.
Petitioner received two cortisone injections and attended physical therapy sessions off
and on over a period of approximately eight months. Id. at *4-5. As recently as
November 2017, the petitioner in Dhanoa required medical treatment, a cortisone
injection, for her SIRVA. Id. at *5.

        In a third decision, Marino v. Sec’y of Health & Human Servs., No. 16-622, 2018
WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 24, 2018), the petitioner was awarded
$75,088.00 comprised of $75,000.00 for actual pain and suffering and emotional
distress, and $88.88 for past unreimbursable medical expenses. Id. at *1. The
petitioner in Marino suffered a SIRVA after receiving a flu vaccination in September
2014, and her pain and suffering lasted until at least March 2, 2017. Id. at *8. In
addition, in Marino, petitioner’s most intense pain and limiting symptoms lasted for
approximately seven months, and at two orthopedic assessments in April 2015,
petitioner reported pain levels of six out of ten and five out of ten. Id. Petitioner’s
treatment consisted of a cortisone injection, an MRI, and a home exercise program. Id.
at *7-8. In Marino, the undersigned also found that petitioner’s injury affected many
aspects of her life and caused suffering and distress. Petitioner’s injury negatively
impacted her ability to perform her job, which required that she move patients and assist
colleagues in moving patients in her employment as a nurse practitioner. Id. at *8-9.
Petitioner’s injury also resulted in the loss of a longstanding and enjoyable physical
activity and outlet for stress relief. Id.

       A. Petitioner’s Pain and Suffering

      Petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V,
1996 WL 147722 at *22-23 (Fed. Cl. Spec. Mstr. Mar, 18, 1996). 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. Sec’y
of Health & Human Servs., 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. Sec’y of
Health & Human Servs., 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).

       After a review of the entire record, as well as the parties’ briefing, the
undersigned finds that $60,000.00 represents a fair and appropriate amount of
compensation for petitioner’s past pain and suffering. This amount accounts for the fact
that petitioner reported pain and restricted range of motion following his vaccination on
September 9, 2015 (Ex. 2 at 9) until at least February 17, 2016, when he reported he
was 94% improved and his pain level was 1.5. Ex. 3 at 31. At petitioner’s most recent
evaluation, conducted by Dr. Brislin on September 12, 2016, petitioner reported he
continued to have some pain and limited range of motion approximately one year after
his vaccination.
                                            8
        The amount also accounts for petitioner’s diagnostic testing, evaluations, and
treatments. These include two MRIs, a course of physical therapy sessions between
December 16, 2015 and February 17, 2016 (Ex. 3 at 9-31), and one cortisone injection.
Ex. 5 at 4. Petitioner’s first MRI in 2016 showed mild reactive edema and rotator cuff
tendinosis, and he was diagnosed with rotator cuff irritation secondary to injection. Ex.
2 at 23, Ex. 4 at 9. Petitioner received another MRI in September of 2016 that showed
significant tendinitis and some bursitis. Ex. 5 at 8.

        The impact of petitioner’s injury on his daily life is also taken into account. Due to
petitioner’s SIRVA, he was unable to exercise, perform yard work, sleep comfortably,
and perform overhead activities in the capacity he could prior to the September 9, 2016
vaccination. Perhaps most distressing for petitioner was his inability to participate in
international volunteer work. Petitioner testified that he was forced to cancel one
international mission trip, and was not able to attend a second.9

        The undersigned notes that this award is less than the amount requested by
petitioner. Several factors weigh against petitioner’s request, including the severity of
petitioner’s injury, the duration of his suffering, and petitioner’s delay in seeking
treatment. Petitioner first sought treatment for his arm pain on December 2, 2015,
almost three months after his vaccination. Petitioner’s pain was also not as long-lasting
or severe as the other SIRVA cases discussed supra. Petitioner did not report
significant pain during his last nine physical therapy sessions (stating his pain was
between 1.5 and .5 between January 13, 2016 and February 17, 2016), and that he was
94% improved as of February 17, 2016. Ex. 3 at 21-66. The physical examination
performed by Dr. Federico on February 16, 2016, also showed that petitioner had full
range of motion of his shoulder. Ex. 2 at 23.

        Further, petitioner went extended periods of time without any treatment. After he
canceled his final physical therapy sessions because he “feels good so he would like to
play it by ear”, it was not until August 29, 2016 that he sought treatment again. Ex. 3 at
33, Ex. 5 at 5. The fact that petitioner did not seek medical care or treatment for his
shoulder injury for approximately three months after receiving the vaccination, and for a
six-month period between February and August of 2016, indicates that his symptoms
did not interfere with his ability to participate in activities of daily life to a degree that was
unmanageable. In addition, petitioner chose not to partake in the physical therapy after
his September 12, 2016 appointment despite Dr. Brislin’s referral. Ex. 5 at 4. Lastly,
petitioner did not attend a follow-up appointment with Dr. Brislin on October 10, 2016,
suggesting that petitioner no longer needed medical treatment.

       The impact on petitioner’s daily life was also not as extensive as other cases
discussed supra. The record shows that petitioner was still able to swim while
undergoing treatment, and able to continue physical tasks such as performing yard
work, grocery shopping, and volunteering locally.


9
  Petitioner testified that he has been unable to travel for additional missions because the doctors
“wouldn’t release me”, however, the medical records do not document that petitioner received advice to
limit his future travel due to his shoulder injury.
                                                       9
        The undersigned also finds that the evidence does not support petitioner’s claim
for future pain and suffering. At the time of the hearing, petitioner testified that he has
no pain in his shoulder, does not have trouble dressing, can reach behind his back, can
sleep on his side for portions of the evening, and ultimately regained the ability to do the
backstroke. Tr. at 64-67. Further, petitioner’s medical records indicate that he is no
longer seeking treatment for his right shoulder pain, he testified that his last physical
therapy session was on February 17, 2016, and his last appointment with a doctor was
with Dr. Brislin in 2016. Id. at 51, 59.

         There is also little evidence that petitioner’s SIRVA negatively impacts his future
ability to volunteer. Petitioner testified that “the doctors won’t release me” for
international travel, and that Dr. Koshar indicated he did not want petitioner to fly
internationally. Tr. at 29, 56. However, petitioner has continued to volunteer
domestically, and testified that he continues to be active in his church “in missions”. Id.
at 40, 58. Petitioner is also able to travel, testifying that he traveled by plane to
California in 2017 for a week to visit family. Id. at 45.

     V.     Conclusion

       For all of the reasons discussed above, and based on consideration of the
record as a whole, the undersigned finds that $60,000.00 represents a fair and
appropriate amount of compensation for petitioner’s pain and suffering. In
addition, the undersigned finds that petitioner is entitled to compensation for
$170.00 in past unreimbursable medical expenses.

     Based on the record as a whole and arguments of the parties, the undersigned
awards petitioner a lump sum payment of $60,170.00 in the form of a check
payable to petitioner, Richard Knauss. 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/Nora Beth Dorsey
                                         Nora Beth Dorsey
                                         Chief Special Master




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.

                                                     10
