In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0225V
Filed: June 6, 2018
TO BE PUBLISHED
NATHALIE COLLADO,
Petitioner, Special Processing Unit (SPU);
v. Decision Awarding Damages; Pain
and Suffering; Influenza (Flu)
SECRETARY OF HEALTH AND Vaccine; Shoulder Injury Related to
HUMAN SERVICES, Vaccine Administration (SIRVA)
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On February 16, 2017, 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 she suffered left shoulder injuries caused in fact
by the influenza vaccination she received on October 22, 2015. Petition at 1, ¶¶ 2, 13
(ECF No. 1). The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On July 20, 2017, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for her shoulder injury related to vaccine
administration (“SIRVA”). (ECF No. 18). Being previously informed that the parties had
been unable to agree upon an appropriate amount of compensation in this case, the
undersigned ordered the parties to file simultaneous briefs regarding the damages to be
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
2National 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).
awarded. For the reasons described below, the undersigned finds that petitioner is
entitled to an award of damages in the amount of $120,772.53, representing $772.53
for actual unreimbursable expenses and $120,000.00 for actual pain and
suffering.
I. Relevant Procedural History
With the petition, petitioner filed the medical records needed to establish the
merits of her case. See Exhibits 1-5 (ECF No. 1); Exhibit List (ECF No. 2); Statement of
Completion (ECF No. 6). Respondent filed his Rule 4(c) Report on July 17, 2017,
conceding that petitioner is entitled to compensation. (ECF No. 17). Specifically,
respondent “concluded that petitioner’s alleged injury is consistent with SIRVA; that a
preponderance of evidence establishes that her SIRVA was caused-in-fact by the flu
vaccination she received on October 22, 2015; and that no other causes for petitioner’s
SIRVA were identified.” Id. at 2. Petitioner was ordered to file updated medical records
which established her current condition and the parties were instructed to engage in
informal damages negotiations. (ECF No. 19).
Over the next four months, petitioner forwarded a demand to respondent and
filed a statement and updated medical records regarding her current condition. See
Status Report, filed Sept. 5, 2017 (indicating petitioner’s demand was sent on July 25,
2017) (ECF No. 20); Exhibit 6 (updated medical records) (ECF No. 24); Exhibit 7
(petitioner’s statement) (ECF No. 26). Respondent responded to petitioner’s demand
on December 7, 2017. See Status Report, filed Dec. 8, 2017 (ECF No. 28).
On January 11, 2018, petitioner filed a status report indicating she “believe[d]
further negotiations will be futile and respectfully request[ed] a status conference to
discuss further proceedings.” (ECF No. 30). During informal discussions with the staff
attorney managing this SPU case regarding their availability for a telephonic status
conference, the parties decided they preferred to submit briefs concerning the amount
damages to be awarded. See Informal Remark, dated Jan. 12, 2018. On January 19,
2018, the undersigned ordered the parties to file simultaneous briefs. (ECF No. 31).
Approximately two weeks later, she also ordered the parties to file a joint status report
indicating if they wished to participate in mediation. (ECF No. 33).
In February 2018, petitioner filed additional affidavits from her daughters, ex-
sister-in-law, and herself. See Exhibits 8-11 (ECF No. 34). The parties filed their briefs
on March 8, 2018. (ECF Nos. 36-37). They also indicated that petitioner was willing to
engage in mediation, but respondent was not. Joint Status Report, filed Mar. 12, 2018
(ECF No. 38).
In May 2018, the staff attorney emailed the parties, regarding documentation for
the $772.53 in unreimbursable expenses sought. See Informal Remark, dated May 11,
2018. Petitioner filed these receipts the same day. See Exhibits 12-13, filed May 11,
2018 (ECF No. 39). A week later, the undersigned ordered petitioner to file the medical
records from her March 23, 2018 surgery which she noticed were still outstanding.
(ECF No. 40). Petitioner filed these medical records the same day. See Exhibit 14,
filed May 18, 2018 (ECF No. 41).
2
II. Relevant Medical History
There is no evidence in the medical records filed to show that petitioner suffered
left arm/shoulder pain prior to receiving the flu vaccine on October 22, 2015. See
Exhibit 1 (record of vaccination); Exhibits 2 at 22-44, 49-148; 6 at 1-11, 17-24 (for
evidence regarding prior condition).3
Two weeks after vaccination, on November 5, 2015, petitioner visited the ER at
the Staten Island University Hospital, complaining of left arm pain existing since
vaccination and worsening in the last day. Exhibit 2 at 8. Petitioner described her pain
as dull and aching. Id. at 10. Upon examination, she was noted to have “tenderness
over deltoid to muscle” and pain when raising her arm. Id. at 12. X-rays were taken,
and petitioner was prescribed Motrin and referred to orthopedics, specifically Dr. Reilly.
Id. at 10-13; see id. at 21 (for results of x-rays).
Petitioner was seen at Dr. Reilly’s practice by RPA (physician’s assistant)
Ekonomakos on November 13, 2015. At that visit, petitioner described her pain as
“severe pain along the shoulder region.” Exhibit 3 at 10. She characterized pain as
increasing in severity, rating the level as 10 out of 10. She indicated it occurred during
rest, activity and at night and restricted her ability to move. Id. at 10-11. Anti-
inflammatory medicine and physical therapy (“PT”) were prescribed, and an MRI was
scheduled. Id. at 10. Petitioner may have attended one PT session at Dr. Reilly’s
practice, Healthcare Associates in Medicine (see exhibit 13 at 11, co-pay for “physical
therapy” dated 11/23/15), but the undersigned was unable to locate a medical record
from that visit.
The MRI was performed on November 25, 2015, and petitioner was seen again
at Dr. Reilly’s practice on November 27, 2015, this time by Dr. Tejani. Exhibit 3 at 9
(record of November 27, 2015 visit); 14-15 (for results of MRI). Dr. Tejani noted that
petitioner’s MRI was “significant for partial bursal surface tear of the infraspinatus and of
the supraspinatus.” Id. at 9. He administered a steroid injection and instructed
petitioner to continue physical therapy. Id.
Petitioner was seen at her PCP for her left shoulder pain on December 4, 2015.
Exhibit 2 at 44. She again described her pain as 10 out of 10 and indicated her range of
motion (“ROM”) was decreasing. Id. She was referred to orthopedics and prescribed
PT. Id. at 45.
Petitioner attended her first PT session at Masefield and Cavallaro on January
27, 2016. She rated her pain as 2-10 on a scale of 10 and described it as a constant
aching pain, with intermittent burning and throbbing and sharp pain with movement.
Exhibit 4 at 2. She indicated she was unable to lay on her left side, had been forced to
alter the way she dressed, and required assistance from her daughter when cooking
and lifting objects. Id. Petitioner’s pain was noted to be 10 out of 10 with the activities
attempted. She was assessed as having “significantly decreased left shoulder ROM
3 It appears that petitioner receives her primary care from Staten Island University Hospital. Unless the
visit is to the emergency room (“ER”), this hospital will be referred to hereafter as petitioner’s primary care
provider (“PCP”).
3
and strength, poor postural awareness, [and] poor functional mobility.” Id. at 3.
Petitioner received moist heat and ice and ultrasound therapies. Id. It was
recommended that she attend PT two to three times a week for six weeks. Id. at 4.
The next day, petitioner again saw Dr. Tejani. Describing her pain as 8 out of 10,
petitioner indicated she “ha[d] been going to physical therapy, which ha[d] been of
minimal benefit.” Exhibit 3 at 8. She added that her pain was increasing, that it kept her
awake at night, and that she was experiencing decreased strength. She described her
injury as “greatly affecting her life,” rating the negative effect as 9 out of 10. Id. Dr.
Tejani discussed treatment options with petitioner and scheduled her for “left shoulder
arthroscopy, rotator cuff repair, subacromial decompression, and possible biceps
tenodesis.” Id. at 9.
Petitioner returned to Masefield and Cavallaro for PT on February 12, 2016. She
informed the physical therapist that she was having rotator cuff repair surgery at the end
of March. Exhibit 4 at 8. At that visit, it was reported that she had “pain with end range
motion in all planes.” Id. On March 9, petitioner indicated by phone that in light of her
upcoming surgery, her “MD recommended she stop PT.” Id. at 10. She was
discharged from PT with a functional disability rating of 71%. Id.
On March 11, 2016, petitioner was seen at her PCP for pre-operation clearance.
Exhibit 2 at 46-48. Surgery consisting of rotator cuff repair, subacromial
decompression, open biceps tenodesis,4 and extensive debridement was performed on
March 23, 2016. Exhibit 3 at 8. According to the surgical records, petitioner was
administered an interscalene block and general anesthesia. Exhibit 14 at 29. Several
portals were made under direct visualization. Id. “Evaluation of the glenohumeral joint
showed there was evidence of a SLAP[5] tear and biceps tenosynovitis.[6]” Id. at 30.
The need for tenodesis was confirmed. Debridement of multiple areas was performed
and a small U shaped tear in petitioner’s rotator cuff was repaired. “With the use of a
burr, subacromial decompression and acromioplasty[7] was performed.” Id. A 4 cm
incision was made in order to complete the open biceps tenodesis. The surgery was
performed by Dr. Tenjani who noted there were no complications. Id. at 29-30
At next appointment on April 1, 2016, Dr. Tejani reported that petitioner was
“doing well.” Exhibit 3 at 7. He instructed her to begin PT. Id.
4 Tenodesis is “the stabilization of a joint by anchoring a tendon to a bone, done either surgically or
through use of an orthosis.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1882 (32th ed.
2012).
5 The labrum is the thick band of tissue which surrounds the shoulder socket and keeps the shoulder joint
stable. “In a labrum SLAP tear, SLAP stands for superior labrum anterior and posterior. This means your
labrum is torn at the top in both the front (anterior) and back (posterior) of where it attaches to the biceps
tendon.” https://www.webmd.com/pain-management/labrum-slap-tear#1 (last visited on May 23, 2018).
6 Tenosynovitis is the “inflammation of a tendon sheath.” DORLAND’S at 1882.
7 Acromioplasty is the “surgical removal of an anterior spur acromion to relieve mechanical pressure of
the rotator cuff during movement of the glenohumeral joint.” DORLAND’S at 20.
4
Petitioner attended PT sessions at Masefield and Cavallaro on April 11, April 18,
May 5, and May 16, 2016. Exhibit 4 at 11-16. At her last visit on May 16, 2016,
petitioner had improved ROM and rated her pain as 4 out of 10. Id. at 16. She
indicated she was “having difficulty paying her co pays but ha[d] been performing
exercises at home.” Id.
At what appears to be petitioner’s last visit to Dr. Tejani on May 18, 2016,
petitioner reported improved ROM and pain that was “about 40% improved.” Exhibit 3
at 7. Dr. Tejani prescribed additional PT. Id. However, it does not appear that
petitioner attended any further formal PT. See id. at 17-18 (PT billing records); Exhibit
13 at 1-4.
On October 31, 2016, petitioner was seen by her PCP for follow up pertaining to
her dyslipidemia8 and gastroesophageal reflux disease (GERD). Exhibit 6 at 31-32.
She reported “no major complaints” and mentioned her shoulder surgery only to explain
why she not yet undergone the neck sonogram previously ordered for her thyromegaly. 9
Id. at 31.
Petitioner was seen again for an enlarged thyroid and dizziness on April 28,
2017. Id. at 28-29. It was noted that she had undergone a thyroid ultrasound but the
results were not yet available. A thyroid profile was ordered, and petitioner was
instructed to wear compression stockings to combat her dizziness, thought to be caused
by orthostatic hypotension.10 Id. at 29. Petitioner’s left shoulder surgery was mentioned
only in the history section. Id. at 28.
The latest medical record filed is from petitioner’s August 17, 2017 visit to her
PCP. Id. at 25-27. In the record from that visit, petitioner’s dizziness is described as
“[r]esolved.” Id. at 26. Her shoulder surgery was again mentioned in the history
section, but no shoulder issues were noted. Id. at 25. In a later section, it was reported
that petitioner had “no joint pain.” Id.
III. Affidavits Filed by Petitioner
On March 1, 2017, petitioner filed the basic affidavit required by § 11(c)(1).
Exhibit 5 (ECF No. 11-1). In that affidavit, she asserted she suffered a left shoulder
injury caused by the influenza vaccination she received on October 22, 2016, suffered
the residual effects of her injury for more than six months, and has not received an
award or settlement for that injury. Id. at ¶¶ 3-5.
8Dyslipidemia is the abnormality in, or abnormal amounts of lipids and lipoproteins in the blood.”
DORLAND’S at 578.
9Thyromegaly or goiter is “an enlargement of the thyroid gland, causing a swelling in the front part of the
neck.” DORLAND’S at 796.
10Orthostatic hypotension is “a fall in blood pressure associated with dizziness, blurred vision, and
sometimes syncope, occurring upon standing or when standing motionless in a fixed position.”
DORLAND’S at 906.
5
In November 2017, petitioner filed a statement indicating she continued to suffer
“ongoing shoulder pain” following her March 2016 surgery. Exhibit 7, filed Nov. 7, 2017
(ECF No. 7-1). She stated that she continues to visit her primary care provider every
three to four months for her shoulder pain and is “advised to continue home exercises
and aleve.” Id. Petitioner added that she recently tried to see Dr. Tejani again but her
appointment was canceled twice. Id.
On February 27, 2018, petitioner filed more detailed affidavits from her
daughters, Ashley and Alyssa Ramharracksingh, her ex-sister-in-law, Sharon Englebert,
and herself. Exhibits 8-11. (ECF No. 34). In her affidavit, petitioner’s oldest daughter,
Ashley, indicated she no longer sees her mother’s previous strength. Exhibit 8 at ¶ 1
(ECF No. 34-2). She described difficulties experienced by her mother when performing
tasks such as driving, chopping vegetables, changing curtains, making beds, and
washing dishes. Maintaining that her mother’s appearance and attitude had changed,
Ashley, stated petitioner was no longer “bursting with energy, eager to go to the movies
or . . . yoga classes.” Id. at ¶ 3. She claimed her mother’s injury has impacted their
vacations because she is unable to handle her luggage or to swim. Id. at ¶ 4.11
Petitioner’s younger daughter, Alyssa, echoed these allegations in her affidavit,
asserting that her mother no longer drives her places or volunteers in her after school
art class “because she is weakened from the shoulder.” Exhibit 9 at ¶ 1 (ECF No. 34-3).
She claimed they “hardly take vacations anymore . . . because [her mother] is scared
she will do something to damage her shoulder more.” Id. at ¶ 2.
Sharon Englebert described difficulties experienced by petitioner when shopping
and doing laundry. Exhibit 10 (ECF No. 34-4). Maintaining that petitioner was “[a]lways
an independent woman” (id. at ¶ 1), Ms. Englebert stated “this shoulder incident has
completely changed her mentally and physically” (id. at ¶ 2).
In her more detailed affidavit, petitioner indicated she is the single mother of two
daughters, a 23 year old college student and a 17 year old high school student who
suffers from Wilson disease.12 Exhibit 11 at ¶ 3 (ECF No. 34-5). Maintaining she has
no family and receives no support from her ex-husband, petitioner stated she must rely
on her ex-sister-in-law “to help [her] with grocery shopping and cleaning the house.” Id.
at ¶ 5. Petitioner described difficulties driving, walking her dog, and dressing. Id. at ¶¶
6-7, 9, 12. She claimed she “no longer ha[s] strength in [her] left shoulder and certain
movements are extremely painful.” Id. at ¶ 4.
IV. The Parties’ Arguments
Petitioner seeks damages in the amount of $150,000.00. Petitioner’s Brief in
Support of Damages (“Pet. Brief”) at 5 (ECF No. 37). Respondent proposes petitioner
be awarded $75,000.00 for actual pain and suffering. Respondent’s Brief on Damages
(“Res. Brief”) at 1 (ECF No. 36). With regard to $772.53 in past unreimbursable
expenses requested by petitioner in her demand, respondent indicates he “has no overt
11This paragraph is labeled as a second paragraph 2. It is clear this is an error, and the paragraph
should be labeled as paragraph 4.
12Wilson disease is “a rare, progressive, autosomal recessive disease due to a defect in metabolism of
copper.” DORLAND’S at 545.
6
basis to refute this amount, [but] does not have substantiating documentation in his
files.” Id. at 1 n.1.
To support the amount she seeks, petitioner cites to four other vaccine cases in
which petitioner was awarded between $120,000.00 and $135,000.00 in damages. Pet.
Brief at 4. In all cases, petitioner was found to be entitled to compensation, and the
parties agreed upon the amount of damages to be awarded. None of these agreements
indicated the category of damages being awarded but it can be surmised that the
majority of the compensation awarded was for pain and suffering. As noted by
petitioner, all four cases involved petitioners who experienced a rotator cuff tear which
required surgical repair. However, petitioner argues that her injury was more severe
and surgery more extensive. Id. (referencing the results of petitioner’s MRI and
additional procedures performed during surgery).
Petitioner further argues that her “shoulder injury continues to impact her quality
of life and emotional well-being,” particularly “her time with her daughters, her difficulty
with her day to day living, and her ability to remain independent.” Id. at 5. She has not,
however, specified which portion of the $150,000.00 sought should be awarded for past
pain and suffering and which portion for future.
Respondent argues for a lower amount, $75,000.00, for petitioner’s pain and
suffering. Res. Brief at 1. Emphasizing the lack of treatment after May 2016,
respondent argues that “[b]ased on this record, the evidence is that petitioner’s shoulder
surgery was ultimately successful.” Id. at 11. Respondent maintains that the affidavits
filed by petitioner, her daughters, and her ex-sister-in-law “are inconsistent with a lack of
continued care, or reporting when medical care was sought.” Id. at 11-12.
Respondent cites no other cases to support his argued for amount. Instead, he
focuses the majority of his argument on the proposition that special masters should
award a continuum of compensation for pain and suffering with only the most egregious
cases receiving the full amount allowed under the Vaccine Act, $250,000.00. Id. at 3-
11; see § 15(a)(4) (for statutory cap for actual and projected pain and suffering).
Respondent asserts that the legislative history of the Vaccine Act and case law prior to
the 2013 decision in Graves13 support this approach. However, respondent adds that
he agrees “with Graves to the extent it calls for an individual assessment of damages
based on the specific facts of a petitioner’s case.” Id. at 5.
V. Discussion
The undersigned finds petitioner has provided documentation of actual
unreimbursable expenses sufficient to support an award in the amount sought, $772.53.
See Exhibit 14. Thus, the only issue remaining is the amount of compensation to be
paid for petitioner’s pain and suffering.
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. See I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL
13 Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013).
7
2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013); McAllister v. Sec’y of Health &
Human Servs., No 91-103V, 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).
Examining those factors in this case, giving due consideration to the circumstances and
damages in the cases cited by petitioner and other relevant cases, as well as her
knowledge and experience adjudicating similar cases, the undersigned has determined
petitioner is entitled to an award in the amount of $120,000.00 for actual pain and
suffering.
A. Facts and Circumstances in this Case
The evidence in this case shows petitioner suffered shoulder pain within 48 hours
of receiving the flu vaccine on October 22, 2015. Two weeks after vaccination she
visited the emergency room at 7:42 a.m. on November 5, 2015, complaining of pain
since vaccination severe enough to restrict her movement. At her November 13, 2015
visit to the orthopedist, petitioner described her pain as 10 on a scale of 1-10.
Petitioner continued to suffer pain at this level of severity during the five months
between vaccination and surgery. Petitioner was seen on five occasions, at the ER, her
PCP, and the orthopedist, attended either one or two PT sessions, and received one
steroid injection. The lack of formal PT may have been due to a concern about the cost
of these sessions or because petitioner’s pain did not allow her to tolerate any additional
sessions. The record is not clear on this point. However, the results of the November
25, 2015 MRI shows injury consistent with petitioner’s pain and limited movement.
Moreover, petitioner consistently described pain as severe during this time.
Further, the operative record shows significant pathology, requiring extensive
debridement, rotator cuff repair, and open biceps tenodesis. Thus, she had several
procedures, including an open surgical procedure. Although petitioner’s surgery was
extensive, the evidence shows that she recovered well, requiring only four PT sessions
thereafter. At her last orthopedic visit with Dr. Tejani on May 18, 2016, petitioner was
described as 40% improved. Dr. Tejani prescribed additional PT, but it appears
petitioner did not pursue this treatment. There is evidence showing petitioner’s decision
to engage in a home exercise program rather than formal PT was due, at least in part,
to the cost of such formal PT. By October 2016, petitioner appeared to be have
recovered. From that time through August 2017, petitioner sought treatment for other
conditions and did not to mention any issues with her arm/shoulder.
As with most SIRVA cases, petitioner is a mentally competent adult, fully aware
of her injury. Thus, an extensive discussion regarding her awareness is not required.
Petitioner was fully aware of her injury and symptoms thereof.
Regarding the severity and duration of her injury, the undersigned finds that
petitioner suffered severe pain and limited ROM in the five months prior to her surgery.
These symptoms significantly impacted her abilities, and were, most likely, the reason
she did not pursue additional PT, opting instead for surgery. Following surgery, her
level of pain was much less. Additionally, it appears she had recovered by October
2016.
8
B. Other SIRVA Cases
To date, the undersigned has determined the amount of damages to be awarded
in a SIRVA case on four occasions.14 The award for pain and suffering in these cases
ranges from $60,170.00 to $94,900.99, but none of these petitioners had surgery or
symptoms which warranted surgery.
Petitioner cites four cases, handled by petitioner’s counsel’s law firm, in which
the petitioner received between $120,000.00 to $135,000.00 for pain and suffering. In
three of these cases, the petitioner underwent surgery, like petitioner in this case. In the
fourth case, petitioner was contemplating surgery which was recommended.
C. Amount to be Awarded for Pain and Suffering
Based upon the record as a whole, the undersigned finds the facts and
circumstances in this case warrant an award of $120,000.00 for actual pain and
suffering. The undersigned agrees that the surgery petitioner underwent in this case
was either similar to or more extensive than the surgeries involved in the four cases
cited by petitioner as well as surgeries other petitioners have undergone. Additionally,
petitioner’s level of pain prior to surgery was severe. However, the duration of this
severe pain was shorter than that of many petitioners suffering from SIRVAs.
Moreover, after surgery, petitioner’s level of pain was much lower. Furthermore, after
her surgery, it appears petitioner recovered quickly, requiring only four formal PT
sessions and two appointments with her orthopedist, Dr. Tejani. As the undersigned
indicated in Marino, there are multiple reasons why a petitioner may or may not seek
medical care. 2018 WL 2224736, at *8. Here, petitioner not only failed to pursue
further treatment for her SIRVA after May 18, 2016, she also failed to mention any
continuing symptoms at appointments for other conditions in October 2016, April 2017,
and August 2017.
Although petitioner did not designate a portion of the amount sought for pain and
suffering as being for projected pain and suffering, she did provide affidavits which
describe symptoms which continue to date. However, the undersigned finds that the
symptoms described in the affidavits are not reflected in the contemporaneously created
medical records. See Cucuras v. Sec’y, Health & Human Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993) (stressing the weight to be given to contemporaneously created
medical records). Moreover, “petitioners bear the burden of proof with respect to each
14 The decision in three of these cases are available to the public. See Marino v. Sec’y of Health &
Human Servs., No. 16-622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018) (awarding
$75,000.00 for actual pain and suffering); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V,
2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb.1, 2018) (awarding $85,000.00 for actual pain and suffering
and $9,900.99 for projected pain and suffering); Desrosier v. Sec’y of Health & Human Servs., No. 16-
224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and
suffering). The decision in the fourth case will be posted on the court’s website, www.uscfc.uscourts.gov,
after the parties have been given an opportunity to request redaction of any information contained in the
decision. See Knauss v. Sec’y of Health & Human Servs., No. 16-1372V (awarding $60,170.00 in pain
and suffering and issued May 23, 2018).
9
element of compensation requested.” Brewer v. Sec’y of Health & Human Servs., 1996
WL 147722, at *22 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Thus, petitioner has failed to
establish by preponderant evidence that she is entitled to an award for projected pain
and suffering.
VI. Conclusion
For all of the reasons discussed above, and based on consideration of the
record as a whole, the undersigned finds that $120,000.00 represents a fair and
appropriate amount of compensation for petitioner’s actual pain and suffering.15
In addition, the undersigned finds that petitioner is entitled to compensation for
$772.53 in actual unreimbursable medical expenses.
Based on the record as a whole and arguments of the parties, the undersigned
awards petitioner a lump sum payment of $120,772.53 in the form of a check
payable to petitioner, Nathalie Collado. 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.16
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
15Since 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 & Human Servs., No. 96-
194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
16Pursuant 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