In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0731V
Filed: March 20, 2019
PUBLISHED
COURTNEY P. BINETTE,
Special Processing Unit (SPU);
Petitioner, Ruling Awarding Damages; Pain and
v. Suffering; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH Administration (SIRVA)
AND HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
RULING AWARDING DAMAGES – SPECIAL PROCESSING UNIT1
Dorsey, Chief Special Master:
On June 22, 2016, Courtney P. Binette (“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 a shoulder
injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”)
1
The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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 published ruling 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).
1
vaccine she received on October 22, 2015.3 Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On March 13, 2018, the undersigned issued a ruling finding petitioner entitled to
compensation. (ECF No. 37). A damages order was issued on March 14, 2018. (ECF
No. 38). The parties were unable to reach an agreement on the appropriate amount to
award Ms. Binette for her pain and suffering. For the reasons discussed below, the
undersigned finds that petitioner should receive an award for actual pain and suffering
in the amount of $130,000.00 and an award for future pain and suffering in the amount
of $1,000.00 per year, for petitioner’s remaining life expectancy of 57 years.4 The basis
for this determination is set forth below.
I. Procedural History
Ms. Binette filed her petition for compensation on June 22, 2016. (ECF No. 1).
Two days later, she filed seven medical record exhibits and a Statement of Completion.
(ECF No. 6-7).
On September 12, 2016, respondent filed a status report stating that he was
willing to engage in discussions regarding a potential settlement and the parties began
discussions to determine if an informal settlement was possible. (ECF No. 11). On
October 24, 2016, petitioner filed a status report stating that she was unable to
formulate a demand because she was continuing “to experience severe and ongoing
left shoulder pain.” (ECF No. 13). Petitioner stated that she intended to forward a
demand to respondent once the scope of her treatment and future medical needs were
more fully known. Id. On November 23, 2016, petitioner confirmed that a demand had
been sent to respondent. (ECF No. 16).
On December 30, 2016, petitioner filed a status report stating that although the
parties had been in settlement discussions, petitioner recently learned that she may
need extensive shoulder surgery to treat her injury. (ECF No. 18). The parties agreed
to resume settlement discussions after petitioner’s upcoming appointment with her
orthopedic surgeon. Id.
Over the next six months, the parties continued their attempts to informally
resolve this case. On March 1, 2017, respondent’s counsel requested issuance of the
15-week stipulation order, stating that the parties had reached a tentative agreement in
3
The petition and vaccination record (petitioner’s exhibit 1) both list the date of vaccination as October 25,
2015. However, during the hearing, petitioner testified that the date of vaccination was October 22, 2015.
Petitioner testified that she was certain of the October 22, 2015 vaccination date because October 25,
2015 fell on a Sunday. At time of vaccination, petitioner worked at a bank that would not have been open
on Sunday. Petitioner thereafter filed exhibit 28, a flu shot schedule prepared by her employer listing the
times that each employee was scheduled to receive the flu vaccine on October 22, 2015. This document
provides preponderant evidence to support Ms. Binette’s claim that she received the vaccination on
October 22, 2015. Therefore, the undersigned finds that petitioner received the flu vaccination at issue in
this case on October 22, 2015.
4
Based on petitioner’s birth date of June 15, 1991, petitioner is expected to live for approximately 57
additional years. See Nat’l Ctr. For Health Statistics, United States Life Tables, 2015 (2018) at Table A.
2
the case. (ECF No. 25). However, on June 13, 2017, respondent filed a status report
stating that “[t]he authorized representative of the Attorney General ha[d] declined to
grant settlement approval for the proposed tentative settlement in this case.” (ECF No.
26). The parties requested a status conference to discuss further proceedings. Id. The
15-week stipulation order was subsequently withdrawn. (ECF No. 28).
On July 17, 2017, the undersigned held a status conference with the parties.
Counsel for petitioner stated that the parties had spent a large amount of time valuing
the damages of the case and that petitioner was not open to accepting a lower amount
than what the parties had tentatively agreed to. With the agreement of the parties and
to help the parties move the case towards resolution, the undersigned briefly reviewed
petitioner’s medical history and medical records and made a preliminary finding, stating
that petitioner’s claim qualified as a SIRVA injury. Respondent’s counsel requested the
opportunity to file a brief to set forth respondent’s position on the case. The
undersigned granted this request and a scheduling order was issued setting forth
deadlines for briefing. (ECF No. 27).
On September 18, 2017, petitioner filed a Motion for Ruling on the Record. (ECF
No. 32). Respondent filed a responsive brief on October 18, 2017. (ECF No. 35). In
his brief, respondent noted that petitioner’s claim was filed prior to the Table
amendment adding the SIRVA injury to Vaccine Injury Table, and thus, would not be
entitled to a presumption of vaccine causation and must proceed on a theory of
causation-in-fact. Id. at 6. Respondent also argued that the record provided insufficient
proof that “petitioner experienced the onset of pain within forty-eight hours of vaccine
administration” and thus, would not qualify as a SIRVA injury. Id. at 7. Respondent
stated that petitioner’s claim must be substantiated by her medical records or a credible
medical opinion because petitioner’s orthopedist’s opinion rested solely upon
petitioner’s representations without independent evidence to support the assertions. Id.
Respondent also argued that petitioner’s recollections of the onset of her injury were
inconsistent, contradictory and “cast[] doubt on petitioner’s ability to recollect other
dates from a similar time period.” Finally, respondent argued that petitioner failed to file
an expert report providing a theory of causation and thus, she should not be found
entitled to compensation under the terms of the Vaccine Act. Id. at 9-10.
On December 20, 2017, the undersigned issued a scheduling order and filed two
court exhibits, informing the parties that she intended to rely on two medical journal
articles discussing SIRVA: B. Atanasoff et al., Shoulder injury related to vaccine
administration (SIRVA), 28 Vaccine 8049 (2010), filed as Court Exhibit I, and M. Bodor
and E Montalvo, Vaccination Related Shoulder Dysfunction, 25 Vaccine 585 (2007),
filed as Court Exhibit II. (ECF No. 36). The parties were granted an additional 30 days
to respond to these exhibits or file any additional evidence for consideration. Id. No
additional evidence or responses were filed and the undersigned issued a ruling on
entitlement in petitioner’s favor on March 13, 2018. (ECF No. 37). A damages order
was issued and the parties were ordered to begin the process of resolving damages.
(ECF No. 38).
3
The parties were unable to reach a resolution on the appropriate amount of
damages, specifically, the amount to be awarded for petitioner’s pain and suffering.
(ECF Nos. 39-40). To resolve the issues of damages, a damages hearing was
scheduled. (ECF Nos. 40-41).
The parties filed their respective pre-hearing submissions on October 5, 2018
(ECF Nos. 44-48), and a damages hearing was held in Washington, D.C., on October
30, 2018. This matter is now ripe for adjudication on the issue of damages.
II. Medical History
On October 22, 2015, Ms. Binette (age 24) received a flu vaccine in her left
shoulder during an onsite wellness program provided by her employer. Ms. Binette is a
manager of a collections department at St. Mary’s Bank located in Manchester, New
Hampshire. Petition at 1; Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1; Pet. Ex. 8 at 1; Tr. 9.
St. Mary’s Bank had engaged Rite Aid Pharmacy to offer onsite vaccinations to its
employees as part of the bank’s wellness program. Petition at 1. Ms. Binette’s medical
history is significant for migraines, gastritis and depression. Id.; Pet. Ex. 2 at 3. Her
medical history does not mention any history of shoulder injuries and does not
otherwise appear to be contributory to her claim in this case.
After receiving the vaccination in her left arm (her non-dominant arm), Ms.
Binette noticed that the band-aid that covered the injection site was “at the top of my
shoulder.” Tr. 26. She described her arm as feeling immediately “tender” and “sore”
and two days later, she “couldn’t lift [her] arm and it just was so tight and so sore.” Tr.
26; Pet. Ex. 8 at 1 (“[t]wo days after the injection I began to have pain in my left
shoulder and arm.”) Ms. Binette stated that she experienced pain when lifting her left
arm and was unable to sleep due to the pain. Pet. Ex. 8 at 1.
Fifteen days later, on November 9, 2015, Ms. Binette presented to nurse
practitioner, James Giordani, at the office of her primary care physician, Elliot Family
Medicine, with complaints of joint pain and a limited range of motion (“ROM”) of her left
shoulder since receiving the flu shot. Pet. Ex. 3 at 18. Ms. Binette reported that she
was having difficulty with all activities and sleeping. Id. The notes from this visit state
that petitioner “received a flu shot to the left shoulder and a few days after the shot she
has had pain, decreased range of motion and mild swelling without redness.” Id. at 19.
Ms. Binette reported the pain as “mild” with “aching” and “cramping” and she stated that
she was taking nonsteroidal anti-inflammatory drugs (NSAIDS) for her symptoms with
only mild relief. Id. On examination, Ms. Binette exhibited decreased ROM and
tenderness. Id. at 20. Swelling was noted and she was assessed with acute bursitis of
the left shoulder. Id. at 21. Ms. Binette was instructed to continue taking Ibuprofen, to
gently stretch the shoulder, and rest and ice the area for one week. She was prescribed
a Medrol Dose pack and instructed to return if there was no improvement for a physical
therapy referral. Id. Ms. Binette stated in her affidavit that Nurse Giordani “concluded
that my pain was likely the result of an improperly administered flu vaccine.” Pet. Ex. 8
at 2. She stated that she took the prescribed steroids, but there was no improvement in
4
her range of motion. Id. In her affidavit, Ms. Binette rated her level of pain at this time
as a 10/10. Id.
On November 19, 2015, Ms. Binette underwent an initial evaluation for physical
therapy. Pet. Ex. 4 at 48. In the assessment, it is noted that Ms. Binette was being
referred for left shoulder bursitis which impaired her sleep, lifting, reaching and
participation in yoga. Id. The notes indicated that petitioner would benefit from skilled
physical therapy and that she demonstrated good rehabilitation potential. Id.
On December 11, 2015, Ms. Binette presented to Dr. Jennifer L. Hendricks at
Elliot Family Medicine with continued complaints of left shoulder pain which persisted
for the past seven weeks despite steroid treatment and physical therapy. Pet. Ex. 3 at
12-13. Ms. Binette reported that the vaccine was given high on her shoulder with pain
localized to the injection area. She also stated the oral steroids had only caused her to
sweat and did not help with her pain. Id. Ms. Binette stated that there had been no
improvement in her range of motion with the physical therapy. She reported her pain
level as severe, at 10/10 at times and she felt nauseous with pain until she was able to
maneuver her arm into a relaxed position. Id. She reported that she was still able to
perform yoga “at baseline” but was unable to perform certain specific movements. Id.
On examination, Dr. Hendricks noted that Ms. Binette “appear[ed] to be in pain with
limited ROM of left shoulder apparent.” Id. 15. Ms. Binette’s internal and external
rotational movements were intact, however, and she had a negative Hawkins’s
impingement sign. Id. at 16. She was given a referral to an orthopedist for evaluation.
Id.
On January 5, 2016, Ms. Binette presented to Sara Lupien, PAC, at Elliot
Orthopedic Surgery Specialists complaining of left shoulder pain since receiving a flu
vaccination on October 22, 2015. Pet. Ex. 2 at 1. Ms. Binette complained that although
she had been in physical therapy for the past six to seven weeks, she continued to
experience moderate and constant left shoulder pain. Id. A physical examination
revealed mild tenderness to palpation over the anterior lateral area of the left shoulder.
Pet. Ex. 2 at 4. The range of motion testing revealed “80 degrees of abduction, 45
degrees of adduction, forward flexion to 180 degrees, extension of 45 degrees, internal
rotation of 55 degrees, and external rotation of 40 degrees. Strength testing reveals 4/5
in abduction, adduction, internal rotation, external rotation, flexion and extension. No
scapular winging is noted. Drop arm test is painful and negative.” Id. Ms. Binette
underwent an x-ray which did not reveal any abnormalities. Id.; Pet. Ex. 2 at 9. She
was assessed with left rotator cuff tendinitis and received a cortisone injection in her left
shoulder to treat the pain. Id. at 5-6. Ms. Binette was encouraged to continue attending
physical therapy. Id. at 6.
Ms. Binette attended nine physical therapy sessions from November 19, 2015 to
March 8, 2016. Pet. Ex. 4. By the end of December 2015, Ms. Binette reported that her
symptoms had improved, she was sleeping better, and had a “much improved ROM.”
Pet. Ex. 4 at 22. On February 11, 2016, Ms. Binette reported to her physical therapist
that while her left shoulder pain was not constant, her range of motion had not returned
5
to baseline and she had received no benefit from the most recent cortisone injection.
Pet. Ex. 4 at 3. The assessment noted that Ms. Binette had symptoms of declining
active ROM, persistent pain and limited function. She also had cervical/periscapular
pain as a result of compensating for her shoulder weakness. Id.
On February 15, 2016, Ms. Binette presented to Dr. Hendricks with continued
complaints of left arm pain and decreased range of motion of her left shoulder. Pet. Ex.
3 at 2-3. She reported that the most recent steroid injection had improved her pain and
ROM for only one day. Id. at 3. Ms. Binette stated that she had completed six weeks of
physical therapy with some improvement in her ROM, but she still had limited flexion
and abduction. Id. She felt that her strength was decreasing in her left arm due to
restricted use and the pain was now radiating into her left bicep. Ms. Binette inquired
whether she should have imaging performed. Id. On examination, Dr. Hendricks noted
decreased passive and active range of motion of the left shoulder. Ms. Binette’s left
shoulder was also tender to the anterior lateral aspect and her strength was measured
at 4/5. Id. Ms. Binette was assessed with decreased ROM of the left shoulder and
adhesive capsulitis. Cervical radiculopathy was considered but ruled out given the
presenting symptoms. Id. Orders for imaging were deferred to petitioner’s orthopedist
for further evaluation. Id.
Ms. Binette underwent an MRI of her left shoulder on February 21, 2016. Pet.
Ex. 2 at 8. The MRI revealed no evidence of subcutaneous or muscle irregularity, but
there was evidence of tendinopathy of the supraspinatus, infraspinatus and
subscapularis tendons of the left shoulder. Id.
On February 26, 2016, Ms. Binette presented to Dr. Mark Piscopo, an orthopedic
surgeon at Elliott Hospital for an assessment of her left shoulder. Pet. Ex. 6 at 7. She
reported that she was regularly attending physical therapy but was still experiencing left
shoulder pain. Id. On examination, Dr. Piscopo noted that there was no obvious
swelling or deformity and he saw no indication of where the flu shot was administered.
Id. There was palpation about the left shoulder which “revealed some moderate
tenderness locally over the lateral aspect of the humeral head and subacromial
interval.” Id. at 7-8. He noted moderate pain but “reasonable strength to resisted
shoulder internal rotation, resisted external rotation, as well as resisted abduction.” Id.
at 8. Dr. Piscopo reviewed Ms. Binette’s MRI and x-ray results and noted the focal area
of rotator cuff tendinosis in the supraspinatus tendon. Id. In the “Plan” section of the
notes, Dr. Piscopo stated:
I advised regarding her MRI findings and advised her that the most likely
explanation for her continuing pain symptoms is that the [vaccine] was
administered too high on the shoulder and some of the vaccine was likely
injected into the rotator cuff causing this rotator cuff tendinosis. I advised
her that this falls into the category of shoulder injury related to vaccine
administration (SIRVA). I advised her that based on experience with some
of the newer vaccine products I advised her that it is likely going to take a
relatively extended period of time for the symptoms to resolve. I advised
6
her that beyond the treatment measures that she has received there does
not appear to be any other intervention that is indicated at this time. I
advised her that continuing with range of motion strengthening exercise[s]
for her shoulder remains appropriate and if she does develop significant
flareups, repeated cortisone injections or oral steroids, or even return to
physical therapy may need to be considered. We will plan to see her as
needed.
Id. On March 2, 2016, Ms. Binette called Dr. Piscopo asking if she could return to yoga.
She requested a letter specifying which exercises she “may or may not do.” Pet. Ex. 6
at 3. Dr. Piscopo advised Ms. Binette that she could engage in yoga, but she would
need to avoid positions that caused her discomfort. Id.
Ms. Binette was discharged from physical therapy on March 8, 2016 after
completing nine visits. Pet. Ex. 4 at 4. It was noted that the physical therapist had not
seen Ms. Binette since February 11, 2016. Id. Under “Patient’s Status at Time of
Discharge” it states: “Subjective: It doesn’t hurt all the time but still doesn’t move all the
way, no benefit from cortisone shot.” Id. In the assessment, Ms. Binette is noted to
have attained all LTGs (long-term goals) and she returned to yoga, which had been her
only remaining LTG. Id.
On March 31, 2016, Ms. Binette presented to orthopedist, Dr. Douglas Goumas,
at the New Hampshire Orthopedic Center to obtain a second opinion regarding her left
shoulder injury. Pet. Ex. 5. Ms. Binette reported that she had received a flu vaccination
in October 2015 and had ongoing shoulder pain since that time. Pet. Ex. 5 at 2. Dr.
Goumas noted that Ms. Binette “was seen at Elliot Orthopedics and was advised would
need to ‘live with this for the rest of her life…. was advised to get 2nd opinion.’” Id. Dr.
Goumas also noted that Ms. Binette had retained an attorney and that “I was not aware,
but there are a number of individuals who have had flu shots resulting in decreased
range of motion. Again, I do not have a lot of experience with that…” Id. at 15. On
examination, Dr. Goumas documented that Ms. Binette had good range of motion of her
head and neck, and there was no radiculopathy. Id. He did note, however, that she
had limitations with external rotation and limitations with motion and pain. He
documented that Ms. Binette had “significant pain with abduction, internal and external
rotation.” The diagnosis was “[s]houlder pain consistent with adhesive capsulitis, Stage
I.” Id. Dr. Goumas stated, “I am uncertain of the connection between the flu shot and
the adhesive capsulitis diagnosis that I am making with Courtney. However, we will get
her in for an IA injection to address her adhesive capsulitis and she will follow backup
with me after that.” Id.
On April 1, 2016, Ms. Binette received a guided fluoroscopic injection in her left
shoulder. Pet. Ex. 5 at 13. She rated her pre-injection pain as a 6/10 and her post-
injection pain as 0/10. Id.
On April 22, 2016, Ms. Binette presented to Dr. Goumas for a follow-up of her left
shoulder symptoms. Pet. Ex. 5 at 12. Dr. Goumas assessed Ms. Binette’s presentation
as consistent with adhesive capsulitis. Id. He noted that Ms. Binette’s last steroid
7
injection had only provided her with four hours of complete relief. While she was still
experiencing some relief from the injection, she continued to complain of lingering pain
in her left shoulder. Dr. Goumas referred Ms. Binette to physical therapy and
prescribed Meloxicam. Id.
On April 25, 2016, Ms. Binette presented to Apply Therapy Services in Bedford,
New Hampshire for an initial evaluation. Pet. Ex 5 at 4. After an assessment of her
symptoms, it was recommended that she attend physical therapy in conjunction with a
home exercise program, three times a week for six weeks. Id. at 6.
Ms. Binette attended physical therapy at Apple Therapy Services on April 27,
May 2, 4, 9, 11, 16, 18, 23, 25, 2016. By June 1, 2016, Ms. Binette reported a 20%
improvement since starting therapy. Pet. Ex. 7 at 41. Her maximum pain decreased
from a 10/10 to 8/10 with 0/10 at times. Ms. Binette’s range of motion “ha[d]
improvement steadily”, although she was very limited with strengthening and attempts
to increase her strength led to reports of elevated pain. It was recommended that she
continue with her current treatment plan. Id. at 41. Ms. Binette continued with physical
therapy sessions on June 1, 6, 8, 13, 15, 20, 2016 (16th session).
On September 28, 2016, Ms. Binette returned to Dr. Piscopo for a follow up of
her left shoulder. Pet. Ex. 9 at 1. She reported continued soreness of her left shoulder
with use of her arm. Id. Ms. Binette stated that reaching and lifting were very limited
due to her pain and restricted movement. Id. Upon examination, Dr. Piscopo noted
some mild to moderate tenderness over the subacromial interval. The range of motion
of her left shoulder was limited in certain planes, although she had good strength with
moderate discomfort. Dr. Piscopo advised Ms. Binette that her continued symptoms
were “not unexpected for the nature of her condition.” He stated that he anticipated that
her shoulder symptoms would gradually decrease in intensity, but that it was unclear
how long it would take before she ultimately got complete resolution of her symptoms.
Id. Dr. Piscopo advised that Ms. Binette continue with home exercises if she did not
feel she was benefiting from formal physical therapy and if she failed to show
improvement, then a further workup with repeat MRI would be considered. Id. at 2. Ms.
Binette received another steroid injection during this visit.
On January 13, 2017, Ms. Binette returned to Dr. Piscopo for a follow up. Pet.
Ex. 10 at 1. She reported that the last steroid injection helped for a little while, but not
long and she continued to experience soreness about her shoulder region, especially
with extended use of her left arm. Id. On examination, there was mild tenderness on
palpation over the AC joint and the subacromial interval. Id. at 2. Dr. Piscopo noted
some mild weakness and moderate pain to resisted shoulder abduction, but Ms. Binette
demonstrated full passive internal rotation without pain. In the assessment, Dr. Piscopo
advised that with petitioner’s continued symptoms, a further workup with an MRI scan
would be appropriate to assess her rotator cuff to look for evidence of either progressive
change or potential healing of the cuff. Id. Regarding prognosis, he stated that
recovery is unpredictable and that if her symptoms continued to fail to resolve over time,
she may need surgical treatment to debride the involved area and possibly repair the
rotator cuff. Id.
On January 23, 2017, Ms. Binette underwent another MRI of her left shoulder.
Pet. Ex. 23 at 1-2. The results showed “[a] very small amount of edema … seen in the
deltoid posteriorly…” Id. at 2. The MRI also showed subacromial and subdeltoid
8
bursitis, mild supraspinatus tendinosis and mild infraspinatus and subscapularis
tendinosis. Id. Bursal surface fraying of the distal supraspinatus and infraspinatus was
also seen. Id. There were no definite findings for capsulitis. Id. at 2-3.
By April 27, 2017, Ms. Binette returned to Dr. Piscopo complaining that while her
shoulder had been doing “ok” overall, over the past three weeks, her shoulder pain had
increased. Pet. Ex. 11 at 3. Ms. Binette stated that her pain was not severe but she
had been noting a gradual worsening of her symptoms and she requested another
steroid injection. Id. Dr. Piscopo again noted mild tenderness of the subacromial
interval laterally with mild tenderness over the more anterior aspect of the subacromial
interval. Id. at 4. He felt that another steroid injection at this point would be reasonable
and proceeded with the procedure. Id.
On July 27, 2017, petitioner presented to Dr. Piscopo for another follow up
regarding her left shoulder. Pet. Ex. 14 at 2. Ms. Binette reported that since her last
visit, the feeling of stiffness that she was having had largely resolved. Id. at 2-3. She
reported that she still experienced sharp pain with certain movements and she
remained unable to reach fully overhead, but “finds functionally it does not limit her all
that much.” Id. at 3. Dr. Piscopo noted that Ms. Binette had mild tenderness diffusely
about the subacromial interval, but no significant tenderness elsewhere about her
shoulder including no significant tenderness over the AC interval. Active abduction was
limited to 90° but passive internal rotation as well as passive external rotation were
within normal limits. Good strength was noted and Ms. Binette reported no pain to
resisted shoulder internal rotation or resisted shoulder external rotation. Id. Dr.
Piscopo stated “I advised the patient that at this point where she is not experiencing a
lot of pain I do not feel that further intervention is indicated at this time.” Id. He
encouraged her to continue using her left arm and to work on gentle stretching
exercises. Id. Regarding a prognosis, Dr. Piscopo stated that given the longevity of her
symptoms, there was at least a moderate risk that this may be a condition that she
continues to have some years in the future. He encouraged her to continue to mobilize
her left arm to tolerance and to return for a reassessment in three months. Id.
Three months later, on October 26, 2017, Ms. Binette returned for her follow-up
visit with Dr. Piscopo complaining that over the past few weeks, her pain symptoms
worsened. Pet. Ex. 14 at 11. She stated that she had not been engaging in any
unusual activity but the pain forced her to restrict the use of her arm and was interfering
with her sleep. Id. Dr. Piscopo noted a “significant flareup” about the shoulder region
on his physical examination. He recommended a repeat steroid injection to alleviate her
symptoms. Id. at 12. Ms. Binette agreed and the steroid injection was administered.
Id.
On March 1, 2018, Ms. Binette returned for a follow-up visit with Dr. Piscopo.
Pet. Ex. 14 at 19. She reported that her shoulder pain was now bothering her on a
constant basis. If she was careful with how she moved her arm, the pain was relatively
mild, but any abrupt movement of her shoulder would cause marked pain. Id. Ms.
Binette reported that her left shoulder motion had been reasonably maintained since the
episode with the frozen shoulder, but she was frustrated at the chronic nature of her
shoulder symptoms and was looking to discuss options, including surgery. Id. Dr.
Piscopo noted that he did not see any evidence of any structural pathology for which
surgery would be indicated. Id.
9
On March 15, 2018, Ms. Binette followed up again with Dr. Piscopo. Pet. Ex. 14
at 34. Ms. Binette reported that her symptoms were unchanged from the previous visit.
Id. at 35. She reported a “constant soreness about her shoulder, and use of her arm
will seem to accentuate her symptoms. Abrupt movements of her shoulder will cause
more sharp pain.” Id. On examination, Dr. Piscopo noted mild tenderness about the
subacromial interval and anterior humeral head. He also noted some reduced range of
motion with external and passive internal rotation of the shoulder. Id. at 36. Dr.
Piscopo reviewed the most recent MRI images and compared the results with Ms.
Binette’s February 2016 and January 2017 MRIs. He noted that the current images
continued to show an area of signal abnormality involving the supraspinatus that had
extended slightly more distally. Id. He did not see any other abnormality of the
shoulder. He “advised the patient that at this time I do not see any other good options
other than to manage her conservatively. I advised her that the area of involvement is
too broad, and extends to[o] deep into the rotator cuff to anticipate surgery for resection
of the involved area, and there does not appear to be any other abnormality about her
shoulder to explain her symptoms.” Id. He instructed Ms. Binette to continue with her
home exercises and to avoid strenuous use of her shoulder. Ms. Binette was to follow
up in three months. Id.
On June 18, 2018, Ms. Binette returned to see Dr. Piscopo in follow up. Pet. Ex.
14 at 57. She reported that her left shoulder continued to feel sore and constant. She
reported that the pain seemed to be more severe and by the end of the day, the pain
was worse than it was in the morning. Id. During this visit, Ms. Binette rated her
shoulder pain at rest as a 5/10. On examination, Dr. Piscopo noted “more pronounced
tenderness today as I palpate over the area of the acromioclavicuar joint…She has
good strength and only minor discomfort to resisted shoulder internal rotation as well as
resisted shoulder external rotation.” Pet. Ex. 14 at 58. Dr. Piscopo stated:
I advised the patient that her findings today appear grossly unchanged
from her recent office visits. I advised that given her failure to respond to
previous treatment I feel that it is likely that her condition is permanent. I
encouraged her to continue with gentle rotator cuff strengthening
exercises to try to keep up rotator cuff as healthy as possible. We’ll plan to
reassess her in a further 3 months.
The most recent record of treatment is dated September 17, 2018, where Ms.
Binette presented to Dr. Piscopo for a follow-up visit. Pet. Ex. 19 at 1. Ms. Binette
reported that there was no significant change in her pain symptoms. She reported
constant soreness about her shoulder, but that her pain levels increased with activity.
Id. On examination, there was no visible swelling or deformity. Id. at 2. Palpation
revealed mild tenderness over the subacromial interval and anterior humeral head but
no significant tenderness elsewhere about her shoulder. Id. Active forward elevation
was limited to 135° and active abduction was limited to 70°. Id. Passive forward
elevation was tolerated to 150° where it was limited by pain. Id. Ms. Binette
demonstrated “good strength” of her left shoulder with “only minor discomfort to resisted
shoulder internal rotation as well as resisted external rotation.” Id. Dr. Piscopo advised
that there did not appear to be any significant change to her shoulder since the previous
assessment three months prior. He encouraged Ms. Binette to continue with her
isolated rotator cuff exercises and to follow up in three months. Id. The assessment
was rotator cuff tendinosis of the left shoulder. Id. at 3.
10
Ms. Binette filed a letter from Dr. Piscopo dated October 18, 2018. Pet. Ex. 20 at
1. In the letter, Dr. Piscopo confirmed that Ms. Binette was under his care and that
“[m]assage and chiropractor could be helpful to manage[] her pain symptoms.” Id.
III. Impact on Personal Life
Ms. Binette stated that she has suffered “excruciating pain and significant
limitations in her range of motion from the time of her vaccination on October 22, 2015.”
Petitioner’s Prehearing Brief (“Pet. Brief”) at 10. Even at rest, she rated her pain level at
a 5/10. Id. Ms. Binette also noted that she is not a candidate for surgery and that
according to Dr. Piscopo, her injury is permanent. Id. Ms. Binette stated that she
suffers from a constant lack of sleep. She described in her affidavit how every aspect of
her life is affected by the injury. Id. at 11.
Prior to the October 22, 2015 flu vaccination, Ms. Binette participated in Bikram
yoga four to five times a week. Pet. Ex. 8 at 1. After receiving her vaccination, she is
no longer able to attend yoga and she states that she is unable to perform basic tasks.
Id. After attending physical therapy, Ms. Binette attempted to return to yoga, but
because she had to make so many modifications during class, she felt that she was no
longer benefiting from the class. Id. Ms. Binette averred that she has gained 25
pounds since the time of vaccination due to her inactivity and inability to exercise. Id.
At the time her first affidavit was filed, Ms. Binette stated that she continued to attend
physical therapy twice a week to rebuild her strength. Id. at 2. To minimize the
pressure on her left shoulder while sleeping, Ms. Binette purchased an inflatable device
to place under her mattress. She also attends monthly massage therapy sessions to
help alleviate the pain in her left shoulder. Id. Ms. Binette stated that because of the
vaccination, she can no longer participate in activities such as kayaking, canoeing, and
swimming overhand.
During her hearing testimony, Ms. Binette explained that she is scheduled to be
married in October of 2019. Tr. 14. She testified that dress shopping was difficult for
her; that the process was “painful, complicated, and took four people” to help her
change into and out of dresses. Id. at 15.
At work, Ms. Binette testified that her employer conducted an ergonomic
assessment in order to create a workspace that would accommodate her injury. Tr. 17.
She stated that her job is not in jeopardy and her employer has been very
accommodating, but her injury does affect her job. Id.
During the damages hearing, Ms. Binette’s fiancé, Joshua Creighton, testified.
Tr. 85-96. He stated that he frequently observes Ms. Binette in pain due to her shoulder
injury. Tr. 87. He described how he must assist her in daily tasks such as dressing,
bathing, shaving, laundry and buckling her seatbelt. Tr. 87-88. Mr. Creighton also
described his concerns for their future if Ms. Binette’s shoulder injury continues, such as
her ability to care for their children. Tr. 93-94.
11
Ms. Binette filed the affidavit of her co-worker, Ms. Joann Lanoi5, who was
present the day that Ms. Binette received her flu vaccination on October 22, 2015. Pet.
Ex. 12 at 1. Ms. Lanoi averred that she observed Ms. Binette in pain when she
attempted to lift overhead or remove heavy objects while at work. Ms. Lanoi recalled
that Ms. Binette had to rearrange her work station to accommodate her shoulder injury.
Id.
Ms. Binette also filed the affidavit of a vocational expert, Ms. Roberta J. Hurley.
Pet. Ex. 13. Ms. Hurley stated she spoke with Ms. Binette on September 19, 2017, to
discuss any challenges Ms. Binette experienced with her employment as a Collections
Specialist for St. Mary’s Bank. Ms. Binette reported to Ms. Hurley that she was
experiencing constant pain making it uncomfortable for her to sit for long periods. Her
position requires that she sit all day long, and Ms. Binette described how she had to
“shift” and “move” because the pain radiated from her shoulder and arm and affects her
back. Ms. Binette stated that she had to rely on others to move her files, many of which
are heavy. Id. Ms. Binette also reported that due to the lack of sleep which results from
her shoulder injury, she experiences fatigue which makes it difficult for her to work 40
hours per week. Id. Ms. Hurley stated that in her professional opinion, “these issues
will more likely than not impact Courtney’s ability to perform her job in the future. If her
pain persists at current levels, and if her fatigue continues to be an issue, there is a
reasonable likelihood that she will be unable to perform the duties of a Collections
Specialist at St. Mary’s Bank. Her loss of employment will result in lost wages.” Id.
IV. Contentions of the Parties
A. Petitioner’s Position
Petitioner proposes an award of $250,000 for past pain and suffering, the most
allowed for pain and suffering cases in the Vaccine Program under the statutory cap.6
Petitioner’s Brief Regarding Damages (“Pet. Brief”) at 1. Petitioner states that her injury
is permanent and one that is not capable of being surgically repaired. Id. at 1-2. She
argues that her current pain levels are between 5/10 at rest, a 10/10 with activity, and
her symptoms are expected to plague her for the rest of her life. Id. at 2.
5
Ms. Lanoi also testified during the damages hearing. Tr. 96-103. Her testimony is consistent with the
information contained in her affidavit. Id.
6
Petitioner proposes that SIRVA claims should be categorized based on severity and duration as “rough
guidelines” for awarding compensation. (ECF No. 48, p. 23.) Specifically, petitioner asserts that
appropriate awards for pain and suffering would be as follows:
Injuries lasting six months: $100,000 - $125,000
Injuries from six months to one year: $125,000 - $160,000
Injuries lasting one year to two: $160,000 - $190,000
Permanent residua (non-debilitating): $175,000 - $250,000
Permanent residua (debilitating): over $250,000 (reduced by cap to $250,000)
(ECF No. 48, p. 23-24.) The undersigned notes that, as described below, these proposed awards are
significantly higher than what has typically been awarded in SIRVA cases. See Kim, infra.
12
Consequently, petitioner also seeks an award for future pain and suffering of
$20,000.00 per year for the remainder of her life, an amount to be reduced to net
present value. Id. at 2. Ms. Binette states that she is making no claim for lost wages
but also seeks an award for past unreimbursable expenses in the amount of $7,101.98.
B. Respondent’s Position
Respondent proposes a pain and suffering award of no more than $87,500.00.
Respondent’s Brief on Damages (“Resp. Brief”) at 1 (ECF No. 44). At the time of
briefing, respondent did not dispute petitioner’s claim for $3,373.12 for past
unreimbursable expenses as her request was “well-supported and related to her right
SIRVA”. However, respondent has not agreed to petitioner’s most recent request for
unreimbursable expenses of $7,101.98.7 Resp. Brief at 1; Joint Status Report filed Dec.
20, 2018 (ECF No. 57).
In his brief, respondent argues that petitioner’s medical records demonstrate that
her initial complaints of left shoulder pain were relatively mild. Resp. Brief at 2.
Although Ms. Binette continued to have shoulder pain into 2017, respondent notes that
her complaints to her doctor were that her pain was not severe. Id.
Respondent also discusses several pain and suffering decisions arguing that the
degree of severity of the injuries in those cases, comparatively speaking, was greater
than Ms. Binette’s and the award of damages for pain and suffering were substantially
less than the award petitioner is seeking in this case. Resp. Brief at 6. Respondent
states that “t[]his is especially true in light of recent SIRVA pain and suffering damages
awards issued by the Court. For those cases in which petitioners did not undergo
surgery, but rather treated conservatively, in similar fashion to how petitioner here
treated her left shoulder, awards have ranged from $60,000.00 to $94,900.99 in pain
and suffering.” Id. (citations omitted).
V. Discussion and Analysis
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. 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”).
Compensation awarded pursuant to the Vaccine Act shall include “actual and projected
pain and suffering and emotional distress from the vaccine-related injury . . . not to
exceed $250,000.” § 15(a)(4). In determining an award for pain and suffering and
emotional distress, it is appropriate to consider the severity of injury and awareness and
duration of suffering. See I.D., 2013 WL 2448125 at *9-11, (citing McAllister v. Sec’y of
Health & Human Servs., No. 91-103V, 1993 WL 777030 (Fed. Cl. Spec. Mstr. Mar. 26,
7
Respondent did not provide any specific reason for his rejection of petitioner’s additional requested
expenses.
13
1993)), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995). In
evaluating these factors, the undersigned has reviewed the entire record, including
medical records, affidavits submitted by petitioner and others, and hearing testimony.
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 this case.
See, e.g. Jane Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009)
(finding that “there is nothing improper in the chief special master’s decision to refer to
damages for pain and suffering awarded in other cases as an aid in determining the
proper amount of damages in this case.”). And, of course, the undersigned also may
rely on her own experience adjudicating similar claims. See Hodges v. Sec’y of Health
& Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated
the special masters would use their accumulated expertise in the field of vaccine injuries
to judge the merits of individual claims). Importantly, it must be stressed that pain and
suffering is not determined based on a continuum. See Graves, 109 Fed. Cl. 579
(2013).
In Graves, the Court rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. The Court noted that this constituted “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl.
At 590. Instead, the Court assessed pain and suffering by looking to the record
evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595.
In that regard, the undersigned notes that over the past four years the Special
Processing Unit (“SPU”) has amassed a significant history regarding damages in SIRVA
cases. In Kim v. Sec’y of Health & Human Servs., the undersigned explained that after
four years of SPU experience, 864 SIRVA cases were resolved informally as of July 1,
2018. 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 is
$100,000.00 and the median award for cases resolved via stipulation by the parties is
$71,355.26.8 Id. In Kim, the undersigned rejected petitioner’s citation to a few isolated
proffers and 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
8
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 v. Sec’y of Health & Human Servs., No. 17-418V, 2018 WL 3991022 at
*6 (Fed.Cl.Spec.Mstr. July 20, 2018). 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 “[t]hese 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.
14
history of resolutions among many different cases with many different counsel, the
undersigned is persuaded that the full SPU history of settlements and proffers conveys
a better sense of the overall arms-length evaluation of the monetary value of pain and
suffering in a typical SIRVA case.”9 Id. at *9.
Additionally, since the inception of SPU in July 2014, there have been a number
of reasoned decisions by the undersigned awarding damages in SPU SIRVA cases
where the parties were unable to informally resolve damages. Typically, the primary
point of dispute has been the appropriate amount of compensation for pain and
suffering. To date, these decisions are10: Desrosiers 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 and $336.20 in past unreimbursable medical
expenses); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL
1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $94,900.99 for pain and
suffering and $862.14 in past unreimbursable medical expenses); 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 pain and suffering and $88.88 in unreimbursable
medical expenses); Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018
WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000.00 for pain and
suffering and $170.00 in unreimbursable medical expenses); Collado v. Sec’y of Health
& Human Servs., No. 17-225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018)
(awarding $120,000.00 for pain and suffering and $772.53 in unreimbursable medical
expenses); Kim v. Sec’y of Health & Human Servs., No. 17-418V, 2018 WL 3991022
(Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering and
$520.00 for medical expenses); Dobbins, No. 16-854V, 2018 WL 4611267 (Fed. Cl.
Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for pain and suffering and $3,143.80
for medical expenses); Cooper v. Sec’y of Health & Human Servs., No. 16-1387V, 2018
WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and
suffering and $3,642.33 in unreimbursable medical expenses).
In their respective briefs, the parties compared the instant case to Desrosiers,
Dhanoa, Marino, and Knauss.11 Additionally, petitioner cited two decisions issued by
other special masters in prior SIRVA cases.12 In Anthony v. Sec’y of Health & Human
Servs., petitioner was awarded $248,540.00 for pain and suffering. No. 14-680V, 2016
9
Petitioner cited the following informal resolutions: Deak v. Sec’y of Health & Human Servs., No. 14-668V
($160,000.00); Jenny v. Sec’y of Health & Human Servs., No. 14-338V ($140,000.00); Brand v. Sec’y of
Health & Human Servs, No. 12-549 ($178,225.98); and Strobel v. Sec’y of Health & Human Servs, No.
15-1375V ($184,750.00). Additionally, petitioner sought to distinguish the informal resolutions in Curtis v.
Sec’y of Health & Human Servs., No. 16-85V ($91,217.75) and Ponsness, No. 15-826V ($95,000.00).
10
This list is limited to those decisions which have been made public at the time of issue of this decision.
11
Petitioner also cited to Collado v. Sec’y of Health & Human Servs., No. 17-255V, and Kim v. Sec’y of
Health & Human Servs., No. 17-418V.
12
Petitioner also cited several intussusception cases; however, in the undersigned’s view, such cases are
not sufficiently analogous to be instructive.
15
WL 1169147 (Fed. Cl. Spec. Mstr. Mar. 2, 2016).13 In Courbois v. Sec’y of Health &
Human Servs., petitioner was awarded $142,794.40 for pain and suffering. No. 13-
939V, 2016 WL 2765092 (Fed Cl. Spec. Mstr. Apr. 20, 2016).14
A. Determining Petitioner’s Award of Pain and Suffering in This Case
The undersigned is mindful of all the above; however, 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 $130,000.00 for petitioner’s actual pain and suffering
and an additional $1,000.00 yearly for her future pain and suffering for the duration of
her life expectancy (reduced to net present value) 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 and
the undersigned finds that this matter is not in dispute. Thus, based on the
circumstances of this case, the undersigned determines that petitioner had full
awareness of her suffering.
a. Severity of the Injury
Ms. Binette argues that she has suffered excruciating pain and significant
limitations in her range of motion since the time she received the flu vaccination on
October 22, 2015. Pet. Brief at 10. She argues that her medical records demonstrate
that her pain is still extremely high, even at rest. Id. She notes that her orthopedist has
categorized her injury as permanent and inoperable. Id. at 14. Ms. Binette states she
has endured five cortisone injections, multiple rounds of physical therapy and there is
nothing else that can be done for her. Id.
The undersigned finds that Ms. Binette testified credibly that her condition was
very painful. Additionally, the contemporaneous records include notations which identify
high levels of pain. Ms. Binette reported her left shoulder pain to her medical provider
15 days after vaccination. Pet. Ex. 3 at 18. She rated her pain at this time as a 10/10.
Pet. Ex. 8 at 2. During this initial presentation, she exhibited a decreased range of
13
The decision issued in the Anthony case did not address the factors that contributed to the special
master’s award. The special master had previously ruled from the bench following a damages hearing.
14
Like Anthony, the special master in Courbois had made a prior oral ruling and the factors contributing to
the special master’s award were not disclosed.
16
motion of her left shoulder and tenderness and she was assessed with acute bursitis.
Pet. Ex. 3 at 21. Ms. Binette underwent two full rounds of physical therapy. Pet. Ex. 4;
Pet. Ex. 5, 7. Ms. Binette also underwent two MRIs of her left shoulder, both of which
yielded abnormal findings. The first MRI, dated February 21, 2016, demonstrated
“tendinopathy of the supraspinatus tendon infraspinatus tendon subscapularis tendons.”
Pet. Ex. 2 at 8. A second MRI dated, January 23, 2017, demonstrated edema,
subacromial and subdeltoid bursitis, mild supraspinatus tendinosis and mild
infraspinatus and subscapular tendinosis. There was evidence of bursal surface fraying
of the distal supraspinatus and infraspinatus. Pet. Ex. 23-1-2. Ms. Binette received five
cortisone injections to her left shoulder to treat her shoulder pain, all of which provided
temporary and limited relief. Pet. Ex. 2 at 5; Pet. Ex. 5 at 13; Pet. Ex. 9 at 2; Pet. Ex. 11
at 4; Pet. Ex. 14 at 2.
The undersigned also acknowledges that Ms. Binette suffered a flare up of her
symptoms as documented in Dr. Piscopo’s records in or around October 2017. Pet. Ex.
14 at 11. At this time, Ms. Binette reported that her shoulder pain was bothering her on
a constant basis. Pet. Ex. 14 at 19. Any abrupt movement of her shoulder caused
marked pain. Id. Ms. Binette’s condition continued to persist to September 2018 where
Dr. Piscopo opined that he felt that Ms. Binette’s symptoms had plateaued and that her
condition was permanent. Pet. Ex. 14 at 58, 61. Dr. Piscopo opined that he did not see
any structural pathology for which surgery would be indicated as the area of her
shoulder was too broad and extended too deep into the rotator cuff for surgery. Pet. Ex.
14 at 36.
Ms. Binette is young. She was 24 years old at the time of vaccination and 27
years old when she testified at the hearing. Tr. 21. At the damages hearing, she rated
her pain level at a seven out of 10 during the hearing, a higher level than normal
because the travel to the hearing had exacerbated her pain. Tr. 11-12. She stated that
on occasion, her pain levels rise above a seven due to weather changes or her sleeping
position. Tr. 12. Ms. Binette stated that her pain level can reach as high as a 10, but
never goes below a five. Tr. 12. Ms. Binette stated that she has managed her life
around her shoulder pain. Tr. 12.
b. Duration of the Suffering
i. Past Pain and Suffering.
As described above, the undersigned finds that there is evidence that Ms. Binette
suffered moderate to severe pain from the time of vaccination up to and until October
2017, a period of approximately two years. The undersigned acknowledges that during
this time, Ms. Binette suffered episodes of severe pain, mostly in conjunction with
increased use and activity of the affected shoulder. From October 2017 to the present,
(approximately 14 months) the undersigned finds that petitioner suffered an increased
level of pain. Dr. Piscopo opined that Ms. Binette’s shoulder condition was likely
permanent and surgically inoperable. Pet. Ex. 14 at 58; Pet. Ex. 14 at 36-49. Based on
17
Dr. Piscopo’s assessment, the undersigned finds that Ms. Binette’s current levels of
pain are likely to continue as further discussed below.
Thus, in light of all of the above, the undersigned finds that $130,000.00
represents an appropriate award for petitioner’s actual or past pain and suffering.
ii. Future Pain and Suffering
Ms. Binette argues that she is entitled to a “significant” award for future pain and
suffering. At the time of the hearing, Ms. Binette was 27 years old. She stated that she
“has a long life expectancy and will endure pain each and every day for the remainder
of her life.” Pet. Brief at 14. Her support for this argument is a statement from her
orthopedist, Dr. Piscopo, who stated that “given [Ms. Binette’s] failure to respond to
previous treatment I feel that it is likely that her condition is permanent.” Pet. Ex. 14 at
58. She therefore requests $20,000.00 per year for the rest of her life, nothing that the
undersigned must cap her total award for pain and suffering at $250,000.00. Pet. Brief
at 14.
Respondent’s brief does not address petitioner’s argument for an award for
future pain and suffering. He simply proposes a global award for “past and future pain
and suffering.” Resp. Brief at 6. The undersigned notes, however, that at the time
respondent’s brief was filed, petitioner had not yet filed the medical record from Dr.
Piscopo which states that he believes that Ms. Binette’s shoulder injury is permanent.
There are only two reasoned SIRVA damages decisions that have awarded
compensation for future pain and suffering: Dhanoa v. Sec’y of Health and Human
Serv., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) and Curri v.
Sec’y of Health & Human Servs., No. 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr.
Oct. 31, 2018). In Dhanoa, the special master awarded $10,000.00 for pain and
suffering for the year immediately following the decision, but gave no award for
subsequent years. 2018 WL 1221922 at *7. In Curri, taking into account petitioner’s
significant arm pain, her permanently reduced range of motion, and the unique
challenges petitioner faced in her day-to-day life, the special master found that $550.00
per year to be an appropriate award for petitioner’s future pain and suffering. 2018 WL
6273562 at *6.
In this case, the undersigned finds that Ms. Binette’s prognosis regarding the
ongoing nature of her pain and suffering is similar to that of the petitioner in the Curri
case. Curri, 2018 WL 6273562. In Curri, the petitioner filed a record from her
orthopedist stating that petitioner’s left shoulder “had reached its ‘maximum medical
improvement,’ leaving her with a permanent ‘scheduled loss of use’ of 22.5 percent of
her left arm.” Id. at *2. The special master awarded petitioner an award of $550.00 per
year for her future pain and suffering considering petitioner’s “significant arm and
shoulder pain, her permanently reduced range of motion, and the unique challenges her
shoulder injury creates in her day-to-day life as a working mother of three children. Id.
at *7. In this case, there is a similar statement from Ms. Binette’s orthopedist regarding
the permanent nature of her shoulder injury. In Dr. Piscopo’s most recent treatment
record, he states, “I advised that given [Ms. Binette’s] failure to respond to previous
treatment I feel that it is likely that her condition is permanent…” Pet. Ex. 14 at 58.
18
Petitioner bears the burden of proof with respect to each element of
compensation requested and the medical records are the most reliable evidence of
petitioner’s condition. Brewer v. Sec’y of Health & Human Servs., 1996 WL 147722 at
*22-23 (Fed.Cl.Spec.Mstr. Mar. 18, 1996); Shapiro v. Sec’y of Health & Human Serv.,
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.”). Based on the statement of Ms. Binette’s
orthopedist, the undersigned finds that an award of $1,000.00 per year for her life
expectancy to be an appropriate award for petitioner’s future pain and suffering. This
amount is to be reduced to net present value.
B. Award for Past Unreimbursable Expenses
Ms. Binette has provided documentation of past unreimbursed expenses in the
amount of $7,101.98. Pet. Ex. 22-23. In the joint status report filed on December 20,
2018, petitioner stated that the parties were unable to agree on a final amount for
petitioner’s past unreimbursed expenses. Joint Status Report, dated December 20,
2018 (ECF No. 57). The undersigned has reviewed the documentation filed by
petitioner to support her claim for her past unreimbursable expenses and finds all the
requested expenses to be reasonable. The undersigned awards petitioner $7,101.98
for her past unreimbursable expenses.
VI. Conclusion
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. In light of the above analysis, and in
consideration of the record as a whole, the undersigned finds that petitioner should be
awarded $130,000.00 in compensation for actual (or past) pain and suffering and
$1,000.00 per year reduced to net present value, for the rest of her life expectancy, for
future pain and suffering. Ms. Binette’s date of birth is June 15, 1991, and her
remaining life expectancy is approximately 57 years. Thus, her future pain and
suffering damages total approximately $57,000.00, prior to conversion to net present
value.
Therefore, Ms. Binette is awarded $130,000.00 for actual pain and suffering
and $57,000.00 for future pain and suffering. In addition, the undersigned finds
(with the agreement of the parties) that petitioner is entitled to compensation for
$7,101.98 for her past unreimbursed expenses.
The parties are to file a joint status report no later than by Friday, March 29,
2019: (1) converting the undersigned’s award of future pain and suffering to its
net present value, and (2) reporting on all outstanding items of damages that
remain unresolved, if there are any remaining issues. Once these issues have
been resolved, a damages decision will issue.
19
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
20