Wilt v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0446V
UNPUBLISHED

VIRGINIA WILT, Chief Special Master Corcoran

Petitioner, Filed: February 24, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.

Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On March 26, 2018, Virginia Wilt 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 from a right shoulder injury as a result
of receiving an influenza (“flu”) vaccine on September 20, 2016. Petition at 1. An amended
petition was filed on June 13, 2018. The case was assigned to the Special Processing
Unit (“SPU”) of the Office of Special Masters.

For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $110,270.00, representing compensation in the amount of
$110,000.00 for actual pain and suffering, plus $270.00 for past unreimbursable
expenses.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
 I. Relevant Procedural History

On March 26, 2018, Ms. Wilt filed the Petition, Exhibits 1-3 containing medical
records, and Ex. 4, an affidavit (ECF No. 1). On April 17, 2018, Petitioner filed Ex. 5-8,
containing additional medical records (ECF No. 9). On March 4, 2018, Petitioner filed a
Statement of Completion (ECF No. 10). On June 13, 2018 Petitioner filed an additional
medical record designated Ex. 9, an amended petition, and a status report (ECF Nos. 12-
14). On June 14, 2018, Petitioner filed another Statement of Completion (ECF No. 15).
Petitioner filed Ex. 10 containing orthopedic records on July 10, 2018 (ECF No. 16-1).

On April 15, 2019, Respondent filed his Rule 4(c) report (ECF No. 27). Respondent
took the position that Petitioner’s injury did not meet the Table criteria for a claim of
shoulder injury related to vaccine administration (“SIRVA”). Rule 4(c) Report at 4.
Respondent asserted that this was “because [Petitioner’s] pain extended beyond the
vaccinated shoulder to her neck and elbow. “ Id. at 5. However, Respondent nevertheless
stated that he had “concluded that petitioner’s right shoulder subdeltoid bursitis and
associated pain was more likely than not caused by the September 20, 2016 flu
vaccination.” Id. Respondent further agreed that the case was timely filed, the vaccine
was received in the United States, and that Petitioner suffered the residual effects or
complications of her injury for more than six months. Id. Respondent noted that Petitioner
averred that no civil action or proceedings had been pursued in connection with the
vaccine-related injury. Id. As a result, Respondent conceded “that entitlement to
compensation is appropriate.” Id. at 5-6.

On April 19, 2019, a ruling on entitlement was entered finding that Petitioner was
entitled to compensation (ECF NO. 28). The parties then commenced damages
discussions.

On July 15, 2019, Petitioner represented that the parties could not agree on
damages, and thereby asked that they be permitted to brief the issue for resolution.
Petitioner’s Status Report, filed July 15, 2019 (ECF No. 33). To that end, on October 16,
2019, Petitioner filed a damages brief (ECF No. 39), along with Exs. 11 and 12. On
November 5, 2019, Respondent filed a damages brief in response (ECF No. 40).

On January 10, 2020, I issued an order noting that Ex. 12 was cited and relied on
in Petitioner’s damages brief but was not an affidavit, and directed Petitioner to file an
affidavit concerning her pain and suffering (ECF No. 41). On January 27, 2020, Petitioner
filed a damages affidavit labeled Ex. 11 (ECF No. 42). Because the record already
included an Ex. 11, this filing was stricken on January 30, 2020 (ECF No. 43). On
February 7, 2020, Petitioner re-filed her damages affidavit as Ex. 13 (ECF No.44). The
issue of the amount of damages to be awarded is now ripe for resolution.

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 II. Relevant Medical History

Petitioner’s pre-vaccination medical history was significant for right shoulder
arthritis and pain, neck pain, back pain, cervical radiculopathy, hypertension,
degenerative arthritis, bilateral knee replacement, anxiety, and breast cancer. See Ex. 2
at 6-7, 16-17, 123-32, 138-46; Ex. 7. Beginning on November 12, 2015, approximately
ten months prior to vaccination, she reported and was treated for neck pain radiating into
her right shoulder. Ex. 7 at 7- 51. She also reported, and was treated by her chiropractor
for, right shoulder aching and stiffness prior to vaccination beginning on November 23,
2015. Ex. 7 at 11-51. The records of her pre-vaccination right shoulder treatment
consistently document that Petitioner’s symptoms during this time were limited to stiffness
and a pain level of two, or minimal pain. Id.

During this time period, from November 2015 until her September 30, 2016 flu
vaccination, Petitioner was seen at Twin Rose Family Medicine, her primary care office,
on five occasions. See Ex. 2 at 292-370 (recording visits on November 2, 2015, December
16, 2015, March 14, 2016, June 6, 2016, and September 28, 2016 primarily for follow up
of hypertension, labs, and other non-orthopedic concerns). The records do not indicate
that she sought treatment for her right shoulder from her primary care office during this
time.

On September 28, 2016, two days prior to the vaccination at issue in this case,
Petitioner was seen both by Dr. Scott Schucker of Twin Rose Family Medicine (Ex. 2 at
368) and by her chiropractor, Dr. Lydell Nunn (Ex. 7 at 51). The record of Petitioner’s
September 28, 2016 appointment with Dr. Schucker indicates that her chief complaint
was dermatological, a bleeding skin tag on her neck. Ex. 2 at 368. The record does not
indicate that any orthopedic concerns were raised or that an orthopedic examination was
done during this visit. Id.

At the September 28, 2016 appointment with chiropractor Dr. Nunn, Petitioner
reported neck pain, mid and low back pain, neck pain radiating into the right shoulder,
and right shoulder pain. Ex. 7 at 51. The neck pain radiating into her right shoulder was
described as “shooting in nature” and radiating. Id. Petitioner reported a pain level of three
and that it occurred occasionally, approximately 25% of the time. Id. For her right
shoulder, she reported stiffness and a pain level of “two which indicates a minimal level
of pain.” Id. This is nearly identical to the right shoulder symptoms she had been reporting
to Dr. Nunn since November 2015. See Ex. 7 at 11-51.

On September 30, 2016, Petitioner, then 81 years old, received a flu vaccine. Ex.1
at 1. The vaccine was administered intramuscularly into Petitioner’s right arm. Id.

On October 5, 2016, Petitioner presented to Dr. Bret Daniels of Twin Rose Family
Medicine with complaints of bruising on her right upper arm “after having vaccine” on
September 30. Ex. 2 at 381. The record indicates that she reported right arm pain at the
site of the flu shot given on September 30, and that the pain radiated to her elbow and
the right side of her neck. Id. On examination, Dr. Daniels found that Petitioner

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experienced pain with abduction of her right arm past 120 degrees. Id. at 382. Otherwise
he recorded her right arm orthopedic and neurology exam as within normal limits. Id.

On October 12, 2016, Petitioner was seen by chiropractor Dr. Nunn. Ex. 7 at 53.
The subjective complaints section of the record contains the same sections as Petitioner’s
pre-vaccination September 28, 2016 chiropractic record: neck pain, mid back pain, low
back pain, neck pain radiating into the right shoulder, and right shoulder. Id. at 51-53.

In the “Neck Pain Radiating into the Right Shoulder” section, the description of
Petitioner’s symptoms and pain level on October 12, 2016 is the same as that of
September 28, 2016 (two days prior to vaccination). Id. In the “Right Shoulder” section of
Dr. Nunn’s records, the description of the pain and symptoms on October 12, 13 days
after vaccination, differs from that of her pre-vaccination September 28 record. The
September 28, 2016 (pre-vaccination) record indicates that Petitioner reported right
shoulder stiffness with a pain level of “two which indicates a minimal level of pain.” Ex. 7
at 51. However, the “Right Shoulder” section of the October 12, 2016 (post-vaccination)
record states:

A burning sensation is being reported by the patient. A sharp pain is being
described by the patient. Stiffness is being presented as a complaint. On
this visit, the patient is reporting a pain level of 6/10 which indicates a
moderate level of pain. Comments Mrs. Wilt had a nurse give her a flu shot.
The nurse put the injection in the shoulder joint.

Id. at 53.

On October 20, 2016, Petitioner returned to Dr. Daniels. Ex. 2 at 395. Petitioner
reported that on October 12, 2016, she saw a chiropractor who performed massage
treatment that relieved her symptoms. Id. However, her symptoms reappeared a day or
so later. Id. She reported that home massage and heat helped, but that she still
experienced persistent right shoulder pain with use. Id. On examination, Dr. Daniels was
able to reproduce Petitioner’s right deltoid area pain with resisted abduction. Id. at 396.
Testing of the active range of motion of Petitioner’s neck did not reproduce Petitioner’s
symptoms. Id. Her right upper extremity strength and light touch testing were within
normal limits. Id.

On October 27, 2016, Petitioner was seen by physical therapist Aaron Mackley.
Ex. 8 at 10. She reported a history of pain in her right shoulder and arm following a flu
shot. Id. at 11. The record lists the date of onset as September 30, 2016. Id. She reported
that she received a flu shot and started experiencing pain down her arm afterward. Id.
She reported a pain level of 6/10 at the time of the appointment and 9/10 at worst. Id. at
12. On examination, her right shoulder range of motion (“ROM”) was found to be 138
degrees in active abduction, rather than 170-180, and internal rotation was 56 degrees
rather than 70-90.3 Id. at 11-12.
3 Normal shoulder abduction for adults ranges from 170 to 180 and normal internal rotation for adults varies
from about 70 to 90 degrees. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A
GUIDE TO GONIOMETRY 80, 84 (F. A. Davis Co., 5th ed. 2016).

4
 During the October 27, 2016 physical therapy evaluation, Petitioner was assessed
with “impingement syndrome, tenderness, decreased ROM and strength, and decreased
functional tolerance.” Ex. 8 at 11. Mr. Mackley noted that Petitioner was “previously
unrestricted with activity” and that she had a good rehab prognosis. Id. He recommended
physical therapy two to three times a week for six weeks. Id. at 14. Her treatment goals
included being able to use her right arm to perform normal activities of daily life and to
increase her right shoulder strength to 4+/5. Id.

On November 1, 2016, Petitioner reported for physical therapy with Patrick McCart.
Ex. 8 at 31. She reported feeling “lousy” and that her pain was interfering with her sleep
and home exercises. Id. at 31-32. She reported that IcyHot patches helped and reported
a current pain level of 6/10. Id. at 32. Mr. McCart observed “notable warmth over the
lateral deltoid region and mild edema.” Id. He noted that Petitioner experienced “[p]ain
with endrange motions.” Id. He assessed her as having “increased tenderness and
soreness . . . as well as increased tightness/decreased ROM.” Id. Following the session,
she reported fatigue and soreness, but no pain. Id.

On November 3, 2016, Petitioner again reported for physical therapy with Mr.
McCart. Ex. 8 at 46. She reported soreness, mostly in her distal bicep. Id. at 46-47. She
reported that the day before was “pretty good until I went to bed,” at which point she
experienced pain and required medication. Id. at 47. She reported a current pain level of
7/10. Id.

On November 8, 2016, Petitioner had her fourth physical therapy session. Ex. 8 at
61. She was seen by Aaron Mackley, who noted that she demonstrated “overall improved
R[ight] shoulder strength and decreased tenderness upon palpation.” Id. She reported
“min[imum] to no pain and [was] able to perform [her] normal activities.” Id. On
examination, Mr. Mackley still documented “notable warmth over the lateral deltoid region
and mild edema” and “[p]ain with endrange motions.” Id. at 66. He evaluated her right
upper extremity strength and found that in her flexors and abductors, her strength had
improved from an initial level of 3+ to 4+. Id. at 62. For external rotators her strength had
improved from 3+ to 5. Id. Mr. Mackley found that Petitioner’s therapy goals had been
met and she was independent with her home exercise program, and discharged her from
physical therapy. Id. at 61. It does not appear that her ROM was evaluated at this
appointment. Id. at 61-62.

On November 9, 2016, Petitioner returned to chiropractor Dr. Nunn. Ex. 7 at 56-
57. She reported neck pain, mid and low back pain, neck pain radiating into the right
shoulder, and right shoulder pain and stiffness. Id. She described her right shoulder pain
as a sharp pain at a level of 6/10. Id. She also reported a burning sensation in her right
shoulder. Id.

On November 30, 2016, Petitioner was seen by Dr. Nunn. Ex. 7 at 58. She again
reported a burning sensation and sharp pain in her right shoulder and a pain level of 6/10.
Id. She reported that she would be having a right shoulder x-ray on December 2, 2016

5
related to the shoulder pain she had been experiencing since her flu shot on September
30. Id.

On December 2, 2016, Petitioner returned to Dr. Daniels. Ex. 2 at 409. Petitioner
reported that she continued to experience right shoulder pain related to her flu shot. Id.
On examination, she had full active range of motion but experienced pain with abduction
past 90 degrees. Id. at 411. She had a positive empty can impingement sign and the
subacromial area was tender to palpation. Id. Her right upper extremity strength and light
touch testing remained within normal limits. Id. Right shoulder x rays were done and Dr.
Daniels referred Petitioner to an orthopedist. Id.

On December 19, 2016, Petitioner was seen by physician assistant (“PA”) Jessica
Fittipaldi in the office of orthopedist Dr. Thomas Westphal. Ex. 3 at 16-17. Petitioner
reported right shoulder pain that “started over 3 months ago after a flu shot.” Id. at 16.
She reported that she had failed to improve with rest, activity modification, physical
therapy, and over the counter medications. Id. On examination, she was found to
experience tenderness in the biceps tendon. Id. at 20. Her right shoulder range of motion
in active abduction and extension were recorded as “abnormal.” Id. Her muscle strength
with abduction and in the supraspinatus were both reduced, at 3/5. Id. She exhibited
positive impingement and drop arm signs. Id. An MRI was recommended. Id. at 16.

On December 21, 2016, Petitioner returned to Dr. Nunn. Ex. 7 at 60-61. She
reported neck pain, mid and low back pain, neck pain radiating into her right shoulder,
and right shoulder pain with a burning sensation and stiffness. Id. She reported a pain
level of 6/10. Id. She reported that she was scheduled for an MRI two days later, on
December 23, 2016. Id.

Petitioner returned to Dr. Nunn on January 4, 2017, January 18, 2017, and
February 1, 2017, reporting similar symptoms. Ex. 7 at 62-63, 64-65, 66-67. At her
February 1, 2017 appointment she reported that she would be having arthroscopic
surgery on her shoulder the following day. Id. at 66.

On January 9, 2017, Petitioner presented to orthopedist Dr. Westphal to review
her right shoulder MRI. Ex. 3 at 13. She reported that her symptoms had not changed
since her last appointment. Id. On examination, Dr. Westphal found that her right shoulder
range of motion was passively normal with strength at a level of 4/5. Id. at 15-16. Dr.
Westphal reviewed the MRI and found that it revealed a full thickness tear of the
subscapularis tendon, partial thickness articular surface tear of the distal supraspinatus
tendon, mild subacromial subdeltoid bursitis, moderate tendinosis, and osteoarthritis of
the glenohumeral joint. Id. at 16. He found that Petitioner’s symptoms were impairing her
quality of life and that surgery was indicated to reduce pain and improve her quality of life.
Id. at 12-13.

On January 30, 2017, Petitioner presented to Dr. Daniels for a pre-operative
examination. Ex. 2 at 440. She reported that she would be having right shoulder
arthroscopic surgery on February 2 with Dr. Westphal. Id.

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 On February 2, 2017, Petitioner underwent shoulder surgery. 4 Ex. 3 at 35-37. Dr.
Westphal performed an examination under anesthesia, diagnostic arthroscopy,
arthroscopic subacromial decompression, arthroscopic biceps tenotomy (release),
arthroscopic rotator cuff repair, and major debridement of the shoulder. Id. Dr. Westphal
“elected not to perform a biceps tenodesis at this time.” Id. at 36-37. There were no
complications. Id. at 37.

On February 10, 2017, Petitioner was seen by PA Fittipaldi in Dr. Westphal’s office.
Ex. 3 at 9. She reported that she was taking pain medication at bedtime and was doing
well overall. Id. On examination, Petitioner’s wounds were found to look healthy. Id. at 12.
Her shoulder range of motion and strength were not assessed. Id.

On February 14, 2017, Petitioner reported for physical therapy with Stephanie
Graver. Ex. 8 at 78. She reported her pain level as 2/10 at the appointment and 8/10 “for
brief moments” at worst. Id. at 80. She reported that she was unable to use her right upper
extremity for activities of daily living, unable to carry objects and complete housework,
and that her sleep was interrupted. Id. at 79. The record indicates that she was assessed
with impaired functional use of her right upper extremity secondary to post-operative
restrictions with decreased ROM, decreased strength, pain, and decreased positional
tolerance. Id. On examination, her right shoulder passive ROM in flexion was 90, rather
than 165-180; in abduction 70, rather than 180; and her external rotation was 40 rather
than 90-100.5 Id. Physical therapy was recommended 2-3 times a week for eight weeks.
Id.

On February 16, 2017, Petitioner reported for physical therapy with Patrick McCart.
Ex. 8 at 100. She reported feeling “[n]ot too bad” and that she “didn’t have any pain, but
[her] arm started to become sore and achy.” Id. She reported achy pain at a level of 2/10.
Id. She presented with increased tightness and decreased ROM of her right shoulder. Id.
at 101. She reported fatigue and soreness but no pain at the end of her session. Id.

On February 20, 2017, Petitioner was seen for physical therapy with Christin
Holder. Id. at 116. At the beginning of the session she reported a pain level of 4/10,
assessed as mild/moderate. Id. at 116-17. She reported “minimal pain at end ranges” and

4 The Operative Report indicates that the surgery was done on Petitioner’s left shoulder due to left shoulder
problems. Ex. 3 at 35-37. However, Petitioner’s other medical records generally refer to right shoulder
symptoms. See generally Ex. 2, 3, 7, 10. In addition, the records of her post-operative follow up
appointments indicate that the surgery was done on her right shoulder. See, e.g., Ex. 3 at 6 (March 10,
2017 appointment with Dr. Westphal indicating that Petitioner was “5 week(s) s/p right shoulder arthroscopy
with RCR [rotator cuff repair], major debridement, biceps release and SAD [subacromial decompression]”)
(emphasis added); Ex. 3 at 2 (April 2, 2017 appointment with Dr. Westphal indicating that she was “S/P
[status post, or following] RIGHT rotator cuff repair”) (emphasis added); but see Ex. 3 at 9 (February 10,
2017 appointment assessing Petitioner with “Acute pain of left shoulder” but further down on the same page
stating that Petitioner is “1 week(s) s/p right shoulder” surgery) (emphases added). The parties do not
dispute which shoulder the surgery was performed on, and I find that the preponderance of the evidence
indicates that the surgery was done on Petitioner’s right shoulder.

5 Normal shoulder flexion for adults ranges from 165 to 180 and normal external rotation for adults varies
from about 90 to 100 degrees. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A
GUIDE TO GONIOMETRY 72, 88 (F. A. Davis Co., 5th ed. 2016).

7
demonstrated tightness and ROM restriction. Id. at 117. She reported “an increase in pain
post exercises at 6/10.” Id. Following ice and electrical stimulation she reported a pain
level of 2/10 when she left the facility. Id.

On February 23, 2017, Petitioner reported for physical therapy with Christin Holder.
Ex. 8 at 132. She reported a pain level of 1/10 at rest upon arrival. Id. She reported
“minimal pain at end ranges” and demonstrated tightness and ROM restriction
throughout. Id. Following the session, she reported feeling fatigued and a slight increase
in pain to 2/10. Id. Following ice and electrical stimulation, her pain level was back to 1/10.
Id.

On February 27, 2017, Petitioner was seen for physical therapy with Patrick
McCart. Ex. 8 at 150. She arrived feeling “[n]ot too bad” but added that the day prior “it
hurt so bad, and the only thing I can think of is that I slept on my shoulder.” Id. She
reported that she had to take pain medication the night before, and reported pain reaching
a level of 5/10. Id. She reported that her current pain level was 1/10. Id. Her right shoulder
passive range of motion was assessed and found to be 135 degrees in flexion (compared
to 90 degrees at the beginning of treatment), 90 degrees in abduction (compared to 70
degrees at the beginning of treatment). Id. Her external rotation remained 40 degrees,
unchanged since she began treatment after her surgery. Id. She was assessed with
“progression overall with improved ROM of her R shoulder.” Id.

On March 2, 2017, Petitioner was seen for physical therapy by Stephanie Graver.
Ex. 8 at 148.6 She reported “on and off (R) shoulder discomfort [but] denies presence of
pain at start of session.” Id. She was assessed with demonstrating “mild limitations in (R)
shoulder external rotation and flexion PROM [passive range of motion]. . . pain at end
range of 2/10 intensity.” Id. at 149. She reported no pain at the end of the session. Id.

On March 6, 2017, Petitioner was seen for physical therapy by Christin Holder. Ex.
8 at 167. Petitioner reported shoulder pain of 3/10 at rest. Id. at 168. She “had fair
tolerance for manual stretching/PROM to the R shoulder with tightness at end range and
ROM restrictions throughout but no increase in pain verbalized.” Id. She reported no pain
at the end of the session. Id.

On March 8, 2017, Petitioner reported to Stephanie Graver for physical therapy.
Ex. 8 at 166. She reported continued intermittent right shoulder discomfort at a level of 3-
4/10 at worst. Id.7

6 The pages containing the record of this visit have an “Encounter date” of 2/27/2017. See Ex. 8 at 138-
156. However, Ex. 8 at 147-149 and 152-153 pertain to a March 2, 2017 physical therapy appointment with
Stephanie Graver (while Ex. 8 at 149-151 and 154-155 document a February 27, 2017 physical therapy
session with Patrick McCart). It appears that the record for the March 2, 2017 visit was inadvertently
included in the 2/27/17 “encounter” date in the electronic medical record system.

7 This record is included under “Encounter date” of 3/6/2017. Similar to the issue noted in footnote 6, it
appears that Petitioner was seen on both 3/6 and 3/8 and that both visits were inadvertently recorded under
the 3/6/2017 “encounter” date in the electronic medical record system.

8
 On March 9, 2017, Petitioner was seen for physical therapy with Patrick McCart.
Ex. 8 at 184. She reported feeling “[n]ot too bad” but added that she was “now getting
more irritation at the top of my shoulder when before it was lower into my arm, but it is
nothing I can’t handle.” Id. She rated her pain at a level of 1/10. Id. Her right shoulder
passive ROM was found to have improved. In abduction, her ROM was 110 degrees
(compared to 70 at the beginning of treatment) and in external rotation her ROM was now
65 degrees (compared to 40 at the beginning of treatment). Id. at 184-85. She reported
that she would see her surgeon the following day and that she would call to schedule
further appointments if the surgeon directed her to continue. Id. at 185.

On March 10, 2017, Petitioner was seen by Dr. Westphal five weeks following her
shoulder surgery. Ex. 3 at 8. She reported minimal pain and that she was making good
progress in physical therapy. Id. at 6. Dr. Westphal found that her wounds were healed
and that her range of motion and strength were “diminished as expected.” Id. Her comfort
level was “satisfactory.” Id.

On March 13, 2017, Petitioner was seen for physical therapy by Patrick McCart.
Ex. 8 at 200. She reported feeling good and that over the weekend her shoulder had
improved and she was not in pain. Id. She was assessed as “reporting no pain symptoms”
and “demonstrates progression overall with improved strength and ROM of her R
shoulder.” Id. at 201.

On March 16, 2017, Petitioner reported to Stephanie Graver for physical therapy.
Ex. 8 at 216. She reported “twinges of (R) anterior shoulder pain.” Id. She denied the
presence of pain at rest and denied an increase in pain with progression to active ROM
and active assisted ROM. Id.

On March 20, 2017, Petitioner was seen by Christin Holder for physical therapy.
Ex. 8 at 232. Petitioner arrived reporting “discomfort noting she feels like she strained her
shoulder pulling a quilt out of the washer on Saturday.” Id. She rated the pain at 1/10. Id.

On March 23, 2017, Petitioner was seen by Patrick McCart for physical therapy.
Ex. 8 at 248. She reported feeling “[n]ot bad” and that she got “twinges from time to time,
but it’s nothing serious.” Id. She reported no pain. Id. At this appointment, her active range
of motion was assessed.8 Id. She was found to have active range of motion of 118
degrees in flexion, 105 degrees in abduction, and 75 degrees in external rotation.

On March 23, 2017, Petitioner was seen by her chiropractor, Dr. Nunn. Ex. 7 at
68-69. She reported neck pain, mid and low back pain, neck pain radiating into her right
shoulder, and right shoulder soreness at a level of five on a scale of 1-10. Id. at 68.
8 During previous appointments passive, rather than active, range of motion had been assessed. Active
range of motion “is the arc of motion produced by the individual’s voluntary unassisted muscle contraction,”
while passive range of motion “is the arc of motion produced by the application of an external force by the
examiner.” Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY
88, at 8 (F. A. Davis Co., 5th ed. 2016). Normally, “passive ROM is slightly greater than active ROM because
each joint has a small amount of motion that is not under voluntary control.” Id. Thus, the active ROM
numbers found at the March 20, 2017 examination are comparable to the passive ROM numbers at the
March 9, 2017 appointment, with the exception of external rotation, which had improved by March 20.

9
 On March 27, 2017, Petitioner reported to Christin Holder for physical therapy. Ex.
8 at 264. She reported no complaints of pain at rest. Id. Her examination was
unremarkable. Id. During the session she reported occasional twinges of pain that
subsided with rest. Id. at 265. She was found to have “minimal passive range of motion
deficits” and was improving her active ROM. Id. She had no pain following the session.
Id.

On March 30, 2017, Petitioner was seen by Stephanie Graver for a physical
therapy session. Ex. 8 at 280. She reported that she was not in pain. Id. She reported
that her ability to complete household tasks using her right upper extremity had improved.
Id. at 281. She demonstrated mild deficits in right shoulder passive ROM. Id.

On April 3, 2017, Petitioner was seen by Christin Holder for physical therapy. Ex.
8 at 296. She reported no shoulder pain. Id. She was assessed as “demonstrat[ing]
minimal limitation and end range tightness with shoulder flexion stretching.” Id.

On April 5, 2017, Petitioner returned to Dr. Nunn. Ex. 7 at 70-71. She reported right
shoulder stiffness and pain at a level of 3/10. Id. at 70.

On April 6, 2017, Petitioner was discharged from physical therapy after 16 visits.
Ex. 8 at 312. She reported that she remained pain free and was not experiencing difficulty
with activities of daily life. Id. She was found to be “pain free with return to prior level of
function” with activities of daily living. Id. Her Disabilities of the Arm, Shoulder and Hand
(“DASH”) score had decreased from 80% disability to 9% disability. Id. She was
independent with her home exercise program and it was determined that she no longer
required skilled therapy intervention. Id.

On April 7, 2017, Petitioner was seen by Dr. Westphal for a post-operative visit,
eight weeks following her shoulder surgery. Ex. 3 at 2. She reported minimal pain and
that her strength was good. Id. On examination, her shoulder range of motion was found
to be “near full” and her strength was improving. Id. at 5. Dr. Westphal anticipated that
she would reach maximum medical improvement within 3-6 months. Id. at 2.

On April 26, 2017, Petitioner was seen by Dr. Nunn. Ex. 7 at 72-73. At this visit,
she reported neck pain, mid and low back pain, and neck pain radiating into her right
shoulder. Id. at 72. The portion of the record for subjective complaints no longer contained
a separate section related solely to right shoulder pain. Id. The description of Petitioner’s
symptoms in the section concerning “Neck Pain Radiating into the Right Shoulder”
remained consistent both pre- and post-vaccination in visits dating from November 12,
2015 to September 28, 2017. Ex. 7 at 7-91. Thus, I find that these symptoms were
unrelated to Petitioner’s September 30, 2016 vaccination.

On July 13, 2017, Petitioner presented to PA Fittipaldi for a right shoulder follow-
up. Ex. 10 at 29. She reported intermittent achy discomfort in her shoulder. Id. She had
anticipated that she would be pain-free at this point, but was told that full recovery takes

10
approximately a year. Id. at 28. On examination, her right shoulder wounds were healed
and she had full range of motion and good strength in all directions. Id. at 32.

III. Testimony and/or Affidavits

On October 16, 2019, Petitioner filed Ex. 12, a typewritten statement signed by
Petitioner addressing the limitations her shoulder injury has caused to her activities. Ex.
12. The statement indicates that the pain and suffering from this injury was “greater than
having my 2 knees replaced in individual surgeries.” Ex. 12. The statement indicates that
Petitioner must continue to be careful about lying on her shoulder and still has difficulty
with typing on the computer and gardening. Id. The statement was not submitted as an
affidavit or sworn statement, which reduced its value as evidence. Therefore, I directed
Petitioner to file an affidavit.

On February 7, 2020, Petitioner filed Ex. 13, titled “Affidavit Regarding Damages.”
In her damages affidavit, Petitioner averred that the vaccination “caused me to suffer pain,
surgery, lack of much physical activity to the current day for weakness in shoulder/arm,
which is still there. I feel weakness in shoulder using the right arm for many activities
during house work, cooking, and outdoor chores.” Ex. 13 at 2. She added that her injury
“has restricted my gardening abilities, yardwork, driving for any length of time.” Id. at 3.
Petitioner averred that she continues to suffer from shoulder pain, inability to lift with her
right arm and some movement, and that following surgery she took hydrocodone for pain
and that she continues to take acetaminophen three times daily. Id. at 4.

IV. The Parties’ Arguments

Petitioner seeks damages in the total amount of $140,270.00, comprised of
$140,000.00 for pain and suffering and $270.00 for past out of pocket medical expenses.
Petitioner’s Brief in Support of Damages (“Pet. Br.”), filed Oct. 16, 2019, at 1 (ECF No.
39).9

To support the pain and suffering component of her damages request, Petitioner
notes that her shoulder injury required surgical intervention and two separate rounds of
physical therapy. Id. at 8. She adds that she sought treatment promptly, six days after
vaccination, and this therefore distinguishes her case from others where Petitioners
delayed seeking treatment. Id. Rather, Ms. Wilt maintains that her case is similar to
Collado v. Sec’y of Health & Human Servs., No. 17-0225V, 2018 WL 3433352 (Fed. Cl.
Spec. Mstr. June 6, 2018), except that here, her surgeon indicated her recovery would
take a year or more post-surgery. Id. at 9.

Respondent proposes a pain and suffering award of no more than $77,500.00.
Respondent’s Brief on Damages (“Res. Br.”) at 1 (ECF No. 40). The majority of
Respondent’s damages brief addresses his position that I should adopt the “continuum

9 In her Affidavit Regarding Damages dated January 24, 2020 (Ex. 13), Petitioner included a higher
“estimate” of out of pocket expenses in the amount of $1,000 but (as further explained in Section VII.B.
below) she did not provide required supporting documentation to substantiate these additional expenses,
so her award is limited to the amount actually substantiated ($270.00).

11
approach” for determining pain and suffering used by many special masters before this
methodology was called into question in Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 569, 590 (2013). Under this approach, the statutory maximum of $250,000.00
was reserved for those who were the most severely injured and who have or will suffer
the most pain, suffering, or emotional distress. Id. at 583. Respondent also emphasizes
that the text of Section 15(a)(4) contemplates that at least some petitioners would be
awarded less than the statutory maximum.

Respondent also argues that the specific facts of this case only justify an award of
$77,500.00 for pain and suffering. Res. Br. at 12. Respondent notes that Petitioner had
surgery five months after her vaccination and by April 2017 (seven months post-
vaccination) reported no pain. Id. In addition, less than a year after Petitioner’s vaccination
her doctor noted that she had full range of motion in her shoulder and good strength. Id.
From this, Respondent concludes that Petitioner did not require “consistent, ongoing
treatment, after ten months.” Id. Respondent adds that Petitioner does not have ongoing
pain that would warrant an award on the higher end of the statutory range. Id.

V. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
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).

There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).

I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is

12
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.10 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).

Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merrow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merrow maintained that do so resulted in “the forcing of all
suffering awards into a global comparative scale in which the individual petitioner’s
suffering is compared to the most extreme cases and reduced accordingly.” Graves, 109
Fed. Cl. at 590. Instead, Judge Merrow assessed pain and suffering by looking to the
record evidence, prior pain and suffering awards within the Vaccine Program, and a
survey of similar injury claims outside of the Vaccine Program. Id. at 595. Under this
alternative approach, the statutory cap merely cuts off higher pain and suffering awards
– it does not shrink the magnitude of all possible awards as falling within a spectrum that
ends at the cap.

VI. Prior SIRVA Compensation

As an initial matter, I note that Ms. Wilt’s petition initially asserted a Table injury of
right shoulder injuries resulting from the flu vaccine. Pet. at 1. However, Respondent
determined that this case did not meet the SIRVA Table criteria, and instead conceded
entitlement for “right shoulder subdeltoid bursitis and associated pain.” Rule 4(c) report
at *5. Nevertheless, in their damages briefs, the parties treat this case as a SIRVA case
and cite SIRVA damages decisions. I agree that SIRVA damages decisions provide an
appropriate framework for analyzing Petitioner’s pain and suffering, since Petitioner’s
symptoms, course of treatment, and outcome are similar to those commonly found in
SIRVA cases.

10From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.

13
 A. Overview of SIRVA Case Damages Outcomes in Settled Cases11

SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2020, 1,405 SIRVA cases have informally resolved12 since SPU’s inception
in July of 2014. Of those cases, 817 resolved via the government’s proffer on award of
compensation, following a prior ruling that petitioner is entitled to compensation. 13
Additionally, 567 SPU SIRVA cases resolved via stipulated agreement of the parties
without a prior ruling on entitlement.

Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $75,044.86 to $122,038.99.14 The median award is $95,000.00.
Formerly, these awards were presented by the parties as a total agreed-upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Since
late 2017, the government’s proffer has included subtotals for each type of compensation
awarded.

Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $92,500.00,15 with a median award of $70,000.00. In most instances,
the parties continue to present the stipulated award as a total agreed upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Unlike
the proffered awards, which purportedly represent full compensation for all of petitioner’s
damages, stipulated awards also typically represent some degree of litigative risk
negotiated by the parties.

11 I use the term “settled” broadly, to include both cases that the Department of Justice resolves via litigative
risk discussions and those it proffers (meaning the Government represents that the damages sum
accurately reflects its liability under the Act in the relevant case). Prior decisions awarding damages,
including those resolved by settlement or proffer, are made public and can be searched on the U.S. Court
of Federal Claims website by keyword and/or by special master. On the court’s main page, click on
“Opinions/Orders” to access the database. All figures included in this order are derived from a review of the
decisions awarding damages within the SPU. All decisions reviewed are, or will be, available publicly. All
figures and calculations cited are approximate.

12 Additionally, 41 claims alleging SIRVA have been dismissed within the SPU.

13Additionally, there have been 21 prior cases in which petitioner was found to be entitled to compensation,
but where damages were resolved via a stipulated agreement by the parties rather than government proffer.

14Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 21 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $115,772.83. For these awards, the second and third quartiles range from
$90,000.00 to $160,502.39.

15 Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.

14
 B. Specific Prior Reasoned Decisions Addressing SIRVA Damages

Additionally, since the inception of SPU in July 2014, there have been a number
of reasoned decisions awarding damages in SPU SIRVA cases – meaning where the
parties were unable to informally resolve damages, so the dispute was adjudicated and
ruled upon by a special master. Typically, the primary point of dispute has been the
appropriate amount of compensation for pain and suffering.

i. Below-median awards limited to past pain and suffering

In seventeen prior SPU cases, the petitioner was awarded compensation for only
actual or past pain and suffering in amounts below the median proffer figure discussed
above, and in a range from $60,000.00 to $90,000.00.16 These cases have all included
injuries with a “good” prognosis, although some of the petitioners asserted residual pain.
All of the petitioners in such cases displayed only mild to moderate limitations in range of
motion, and MRI imaging likewise showed only evidence of mild to moderate pathologies
such as tendinosis, bursitis, or edema. The duration of injury ranged from six to 29
months, with such petitioners averaging approximately fourteen months of pain.

16These cases are: Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl.
Spec. Mstr. Nov. 6, 2019) (awarding $65,000.00 for actual pain and suffering and $2,080.14 for actual
unreimbursable expenses); Goring v. Sec’y of Health & Human Servs., No. 16-1458V, 2019 WL 6049009
(Fed. Cl. Spec. Mstr. Aug. 23, 2019) (awarding $75,000.00 for actual pain and suffering and $200.00 for
actual unreimbursable expenses); Lucarelli v. Sec’y of Health & Human Servs., No. 16-1721V, 2019 WL
5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (awarding $80,000.00 for actual pain and suffering and
$380.54 for actual unreimbursable expenses); Kent v. Sec’y of Health & Human Servs., No. 17-0073V,
2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019) (awarding $80,000.00 for actual pain and suffering
and $2,564.78 to satisfy petitioner’s Medicaid lien); Capasso v. Sec’y Health & Human Servs., No.17-
0014V, 2019 WL 5290524 (Fed. Cl. Spec. Mstr. July 10, 2019) (awarding $75,000.00 for actual pain and
suffering and $190.00 for actual unreimbursable expenses); Schandel v. Sec’y of Health & Human Servs.,
No. 16-0225V, 2019 WL 5260368 (Fed. Cl. Spec. Mstr. July 8, 2019) (awarding $85,000.00 for actual pain
and suffering and $920.03 for actual unreimbursable expenses); Bruegging v. Sec’y of Health & Human
Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for
actual pain and suffering and $1,163.89 for actual unreimbursable expenses); Pruett v. Sec’y of Health &
Human Servs., No. 17-0561V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awarding $75,000.00
for actual pain and suffering and $944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health
& Human Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding
$75,000.00 for actual pain and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-0399V, 2019
WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and
$1,027.83 for actual unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs., No. 18-0490V,
2019 WL 2462953 (Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering);
Attig v. Sec’y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19,
2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct.
18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical expenses);
Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018) (awarding $75,000.00 for pain and suffering and $520.00 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);
Desrosiers v. Sec’y of Health & Human Servs., No. 16-0224V, 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).

15
 Significant pain was reported in these cases for up to eight months. However, in
approximately half of the cases, these petitioners subjectively rated their pain as six or
below on a ten-point scale. Petitioners who reported pain in the upper end of the ten-point
scale generally suffered pain at this level for three months or less. Slightly less than one-
half of these individuals had been administered one to two cortisone injections. Most of
these petitioners pursued physical therapy for two months or less, and none had any
surgery. The petitioners in Schandel, Garrett, and Weber attended PT from almost four
to five months, but most of the PT in Weber focused on conditions unrelated to the
petitioner’s SIRVA. Several of these cases (Goring, Lucarelli, Kent, Knauss, Marino, Kim,
and Dirksen) included a delay in seeking treatment. These delays ranged from about 42
days in Kim to over six months in Marino.

ii. Above-median awards limited to past pain and suffering

In eight prior SPU cases, the petitioner was awarded compensation limited to past
pain and suffering but above the median proffered SIRVA award, in ranges from
$110,000.00 to $160,000.00.17 Like those in the preceding group, the relevant petitioner’s
prognosis was “good,” but these higher award cases were characterized either by a
longer duration of injury or by the need for surgical repair. Thus, seven out of eight
underwent some form of shoulder surgery, while one (Cooper) experienced two full years
of pain and suffering, eight months of which were considered significant, and also
required extended conservative treatment. On the whole, MRI imaging in these cases
also showed more significant findings, with seven of eight showing possible evidence of
partial tearing.18 No MRI study was performed in the Cooper case.

17 These cases are: Nute v. Sec’y of Health & Human Servs., No. 18-0140V, 2019 WL 6125008 (Fed. Cl.
Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for pain and suffering); Kelley v. Sec’y of Health & Human
Servs., No. 17-2054V, 2019 WL 5555648 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (awarding $120,000.00 for
pain and suffering and $4,289.05 in unreimbursable medical expenses); Wallace v. Sec’y of Health &
Human Servs., No. 16-1472V, 2019 WL 4458393 (Fed. Cl. Spec. Mstr. June 27, 2019) (awarding
$125,000.00 for pain and suffering and $1,219.47 in unreimbursable medical expenses); Reed v. Sec’y of
Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding
$160,000.00 for pain and suffering and $4,931.06 in unreimbursable medical expenses); Knudson v. Sec’y
of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 for pain and suffering and $305.07 in unreimbursable 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); Dobbins v. Sec’y
of Health & Human Servs., No. 16-0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding
$125,000.00 for pain and suffering and $3,143.80 in unreimbursable medical expenses); Collado v. Sec’y
of Health & Human Servs., No. 17-0225V, 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).

18 In Reed, MRI showed edema in the infraspintus tendon of the right shoulder with a possible tendon tear
and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness partial tear
of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial thickness
tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and moderate sized
joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a partial bursal surface
tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild longitudinally oriented
partial-thickness tear of the infraspinatus tendon, mild supraspinatus and infraspinatus tendinopathy, small
subcortical cysts and mild subcortical bone marrow edema over the posterior-superior-lateral aspect of the

16
 During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale, and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately (e.g., within five to 45 days from onset). Duration of physical therapy
ranged from one to 28 months and six out of the eight had cortisone injections.

iii. Awards including compensation for both past and future pain
and suffering

In only three prior SPU SIRVA cases has a petitioner been awarded compensation
for both past and future pain and suffering.19 In two of those cases (Hooper and Binette),
petitioners experienced moderate to severe limitations in range of motion and moderate
to severe pain. The Hooper petitioner underwent surgery, while in Binette petitioner was
deemed not a candidate for surgery following an arthrogram. Despite significant physical
therapy (and surgery in Hooper), medical opinions indicated that the relevant petitioner’s
disability would be permanent. In these two cases, petitioners were awarded above-
median awards for actual pain and suffering as well as awards for projected pain and
suffering for the duration of their life expectancies. In the third case (Dhanoa), petitioner’s
injury was less severe than in Hooper or Binette; however, petitioner had been actively
treating just prior to the case becoming ripe for decision and her medical records reflected
that she was still symptomatic despite a good prognosis. These petitioners were awarded
an amount below-median for actual pain and suffering, but, in light of the facts and
circumstances of the case, also awarded projected pain and suffering.

VII. Appropriate Compensation in this SIRVA Case

A. Pain and Suffering

In this case, Ms. Wilt’s awareness of the injury is not disputed, as she has been
established to be a competent adult with no mental/cognitive impairments that would
impact her acuity. As a result, the magnitude of the pain and suffering award in this case
turns on the other two factors – severity of injury and its duration.

A review of the complete record in this case reveals that Petitioner suffered a mild

humeral head adjacent to the infraspinatus tendon insertion site, and minimal subacromial-subdeltoid
bursitis.

19 These cases are: 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, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for projected
pain and suffering, and $7,101.98 for past unreimbursable medical expenses); Hooper v. Sec’y of Health
& Human Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years for projected
pain and suffering, $37,921.48 for lost wages).

17
to moderate shoulder injury that was serious enough for arthroscopic surgery to be
recommended and performed. However, after two rounds of physical therapy and
surgery, Petitioner had experienced substantial improvement just over six months after
vaccination, and by ten months after vaccination was experiencing only occasional
residual effects, although Petitioner reports that she remains somewhat restricted in her
activities.

The duration of Petitioner’s shoulder injury was on the shorter side when
considered in the light of the other awards discussed above. Petitioner’s shoulder
symptoms were mostly improved just after six months following vaccination, and were
only occurring on an occasional basis by ten months following her vaccination. She
underwent two rounds of physical therapy totaling 20 sessions, chiropractic treatment,
and shoulder surgery. By April 7, 2017, two months after surgery and just over six months
following her vaccination, she was largely pain free and had near full range of motion. Ex.
3 at 2-5. By July 13, 2017, five months after her surgery and ten months following her
vaccination, Petitioner was experiencing intermittent achy discomfort, but otherwise
displayed full range of motion and good strength. Ex. 10 at 28-32.

With respect to the severity of Petitioner’s injury, following her vaccination until her
surgery she reported pain levels ranging between 6-7 on a scale of 1-10. After her
shoulder surgery and post-operative physical therapy, Petitioner had a good recovery,
experiencing significant pain relief and reduced pain levels. By March 2, 2017, Petitioner’s
pain levels were mostly in the 1-3 range on a scale of 1-10, and a month later she had
minimal pain plus near full range of motion. I therefore find that Petitioner’s injury was at
its most severe for a period of just over five months, from vaccination until one month
after surgery, with symptoms thereafter nearly gone.

This case is highly comparable to Knudson, which resulted in an above-median
award of $110,000.00 for actual pain and suffering.20 Petitioners in both cases sought
medical attention for their shoulder injuries promptly, two weeks after vaccination in
Knudson and six days after vaccination in this case. In both cases, the petitioners
underwent surgical repair with a good recovery, along with two rounds of physical therapy,
one before surgery and another after. Both had similar ratings of their pain, with the
Knudson petitioner rating her pain between 4-8/10 in the weeks following her injury, and
Petitioner in this case rating her pain generally around 6/10 in the comparable timeframe.

In addition, both Petitioner in this case and Petitioner in Knudson experienced
generally mild pain after surgery, with Petitioner in this case experiencing slightly more
severe pain than Petitioner in Knudson. Petitioner in Knudson reported three months after
surgery that she could swim again and was not having any trouble with her arm at all.
Knudson at *8. In contrast, Petitioner in this case reports that she still experiences

20I do note that the record from this case includes evidence of pre-vaccination shoulder symptoms that
arguably could have militated in favor of an even lower award. However, the parties have not raised this
argument, and it is otherwise apparent from the record that the majority of the pain and symptoms for which
Petitioner received treatment following vaccination (including surgery and two rounds of physical therapy)
were related to her vaccine-related injury. Thus, I find it reasonable to award the same amount as in
Knudson.

18
weakness in her shoulder during activities such as house work, cooking, and outdoor
chores. Ex. 13 at 2.

I am not persuaded by Petitioner’s argument that her injury is similar to, or even
slightly worse than, that in Collado. The petitioner in that case experienced more severe
pain, at a level of 8-10 on a scale of 1-10, for a period of three months. Collado at *2-3.
That petitioner also had more extensive surgical procedures, including an open biceps
tenodesis requiring a 4 cm incision, while Mrs. Wilt’s surgeon elected not to perform a
biceps tenodesis. Collado at *3; Ex. 3 at 36-37. In addition, at seven months after
vaccination, the petitioner in Collado reported pain that was “about 40% improved,” while
Mrs. Wilt’s pain was largely gone by the same time in her recovery. Collado at *4; Ex. 3
at 2; 8 at 312. The Collado award therefore exceeds what is appropriate under these
facts.

To further support the requested award, Petitioner emphasizes that Dr. Westphal
indicated that her recovery would take a year. Pet. Br. at 9-10; Ex. 10 at 28. However, I
note that this statement was made by PA Fittipaldi in the context of a visit five months
after surgery where Petitioner reported steady improvement and “achiness if she
overdoes it and occasional sleep disturbance.” Ex. 10 at 28. Petitioner had been under
the impression that she should be pain free at this point, and PA Fittipaldi “explained to
her that full recovery takes approximately 1 year.” Id. (emphasis added). It thus appears
that PA Fittipaldi was conveying to Petitioner that she should not be concerned by
occasional pain during the year following surgery - not that she would not recover until a
full year had passed.

B. Actual Unreimbursable Expenses

In her damages brief, Petitioner requests $270.00 for unreimbursed out of pocket
expenses, and filed Ex. 11 to substantiate them (although she did not substantiate a
higher sum).21 Pet. Br. at 10. Respondent has not challenged this aspect of damages,
and I therefore find they should be awarded.

VIII. Conclusion

For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $110,000.00 represents a fair and appropriate amount of

21 In Petitioner’s Affidavit Regarding Damages dated January 24, 2020, Petitioner maintained that her
“estimated out of pocket costs are $1,000 for caregiver assistance as I recovered from surgery, meal costs,
vehicle expenses.” Ex. 13 at 3. On January 30, 2020, I issued an order noting that the out of pocket
expenses listed in this affidavit differed from that claimed in her damages brief. Scheduling Order, issued
Jan. 30, 2020 (ECF No. 43). I therefore informed Petitioner that if she intended to seek reimbursement for
more than $270 in out of pocket costs, she must file a status report so indicating and must provide
supporting documentation, and that if she did not file such a status report and supporting documentation
by February 7, 2020, “Petitioner’s request for reimbursement of out of pocket expenses will be deemed to
be $270.00 as requested in the damages brief.” Id. at 2. Petitioner did not act in response to this order.

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compensation for Petitioner’s actual pain and suffering.22 I also find that Petitioner
is entitled to $270.00 in actual unreimbursable expenses.

Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $110,270.00 in the form of a check payable to Petitioner.
This amount represents compensation for all damages that would be available under
§ 15(a).

The clerk of the court is directed to enter judgment in accordance with this
decision.23

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

22Since 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. 96-0194V,
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)).

23Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

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