In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-882V
UNPUBLISHED
MINDY LAWSON, Chief Special Master Corcoran
Petitioner, Filed: January 5, 2021
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)
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 20, 2018, Mindy Lawson 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”) after receipt of an influenza (“flu”) vaccine in her left deltoid on
September 1, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters (the “SPU”).
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount of $215,688.69, representing 205,000.00 for her actual pain
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
and suffering, and $10,688.69 for her past out-of-pocket expenses. Petitioner is not,
however, entitled to compensation for expected future pain and suffering.
I. Relevant Procedural History
Approximately 11 months after this case was initiated, Respondent filed his Rule
4(c) Report on May 6, 2019, conceding that Petitioner was entitled to compensation. ECF
No. 25. A ruling on entitlement was issued on that same day. ECF No. 36. The parties
thereafter attempted to informally resolve damages but were unsuccessful. ECF No. 47.
On August 27, 2020, I issued a scheduling order regarding the briefing of disputed
damages issues. ECF No. 48. The parties filed their respective briefs (ECF Nos. 50 (“Br.”),
54 (“Opp.”), and 57 (“Resp.”)). The parties requested to argue their positions at a motions
hearing, at which time I would decide the disputed damages issues (which featured only
a dispute as to pain and suffering, since they did not dispute unreimbursable past
expenses). ECF. Nos. 47, 56. That hearing was held on December 11, 2020, and this
decision memorializes my oral ruling provided on that date.3
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, the parties’
respective pre-hearing briefs, and in Respondent’s Rule 4(c) Report. At the time of
vaccination, Ms. Lawson was a 35-year-old nurse with a non-contributory medical history.
Ex. 3 at 15. She received the flu vaccine in her left arm on September 1, 2016, at her job.
Ex. 1 at 25, Ex. 6 at 2.
On September 7, 2016, Ms. Lawson presented to Prime Care Courtland for a
workers’ compensation evaluation. Ex. 6 at 1. Petitioner indicated to the nurse practitioner
that she had received the flu vaccine “too high on her left shoulder” and had been in
significant pain ever since. Id. at 2. Petitioner described the pain as “moderate in severity,
constant, sharp, and acing.” Id. Petitioner’s muscular strength was documented at 3/5 in
her left deltoid with limited active range of motion with abduction. Id. at 3. Petitioner was
diagnosed with shoulder pain and was prescribed Naproxen, cyclobenzaprine, and RICE
therapy. Id.
On September 11, 2016, Petitioner returned to Prime Care Courtland for
worsening left shoulder pain since her last visit. Ex. 6 at 6. Petitioner was diagnosed with
vaccine complications, was prescribed medication, and an MRI was ordered. Id. at 7.
Over the next month, Petitioner returned for additional medical visits for her shoulder pain,
3 At the end of the hearing held on December 11, 2020, I issued an oral ruling from the bench on damages
in this case. That ruling is set forth fully in the transcript from the hearing, which is yet to be filed with the
case’s docket. The transcript from the hearing is, however, fully incorporated into this Decision.
2
including a visit to orthopedist, Dr. Ali Hashemi, who diagnosed Petitioner with rotator cuff
tendinitis and shoulder bursitis, and prescribed her a Medrol Dosepak. Ex. 1 at 26.
Ms. Lawson had her first physical therapy (PT) evaluation on October 7, 2016. Ex.
1 at 95. Petitioner attended five PT sessions in the two weeks that followed. Id. at 73-76.
On December 14, 2016, Petitioner returned to Dr. Hashemi with continued shoulder pain,
where she received her first cortisone injection. Id. at 20.
Petitioner had her first MRI on April 20, 2017. Ex. 4 at 14. The MRI revealed
“1. Mild supraspinatus and infraspinatus tendinopathy. No focal rotator cuff tear.
2. Possible small intrasubstance tear in the infraspinatus tendon. 3. Mild
acromioclavicular degenerative changes. 4. Mild fluid in the subacromial/subdeltoid
bursa, possibly bursitis.” Id. On April 22, 2017, Dr. Hashemi diagnosed Petitioner with left
shoulder impingement syndrome and rotator cuff tendonitis. Ex. 1 at 17. Instead of
surgery, Petitioner elected to receive a second cortisone injection and continue PT. Id.
Petitioner had her second PT evaluation on May 4, 2017. Id. at 91. Petitioner attended
seven PT sessions in the three weeks that followed. Ex. 1 at 60-66, 83.
Ms. Lawson had her first shoulder surgery, including left shoulder diagnostic
arthroscopy, subacromial decompression, extensive debridement, and extensive
bursectomy, on July 18, 2017. Ex. 1 at 433. The findings of the surgery were “an extensive
bursitis around the rotator cuff, which was debrided and also partial tear at the bursal
surface of the rotator cuff near the supraspinatus insertion.” Id. Petitioner had her third
PT evaluation on August 10, 2017. Id. at 89. Petitioner attended five PT sessions in the
six weeks that followed. Id. at 57-60, 82. By September 28, 2017, Petitioner indicated to
Dr. Hashemi that the surgery had helped a lot. Id. at 6, 184.
On April 5, 2018, Ms. Lawson returned to Dr. Hashemi with increased strain in her
left shoulder and an aching pain. Ex. 1 at 446. Petitioner had her third cortisone injection
at this visit. Id. On August 31, 2018, Petitioner returned to Dr. Hashemi, stating that she
was doing well, but started having pain. Ex. 9 at 1. Petitioner received her fourth cortisone
injection at this visit. Id. A month later, on September 29, 2018, Petitioner returned to Dr.
Hashemi again noting dull pain in the front of her shoulder. Id. at 2. Ms. Lawson received
her fifth cortisone injection at that time. Id. Petitioner had her second MRI on October 12,
2018. Ex. 10 at 1. The MRI revealed, “1. Mild supraspinatus and impression tendinopathy.
No focal rotator cuff tear. 2. Small tear of the posterior glenoid labrum. 3. Mild bone
marrow edema in the distal clavicle and acromion.” Id.
Ms. Lawson had her second shoulder surgery, including left shoulder diagnostic
arthroscopy, subacromial decompression, extensive debridement of bursa and
subacromial space, and arthroscopic distal clavicle excision, on November 18, 2018.
3
Ex. 12 at 3. The findings of the surgery were “extensive bursitis around the subacromial
space, extensive adhesions around the subacromial space, which were resected with
cautery and a shaver, and thickened remnant of the CA ligament and also distal clavicle
osteoarthritis.” Id.
To rule out Petitioner’s neck as the origin of her pain, Petitioner had another neck
MRI on February 1, 2019, that proved unremarkable. Ex. 12 at 10. By February 8, 2019,
Dr. Hashemi was “not sure what else we could do for Mindy,” and referred Petitioner to
the University of Virginia (UVA) Health System. Id. at 13.
Petitioner had a fourth MRI on April 30, 2019, and a fifth MRI on July 17, 2019,
which revealed a posterior labral tear. Ex. 13 at 5, 10. On July 26, 2019, Petitioner was
diagnosed with a SLAP tear. Ex. 14 at 44. On July 29, 2019, Dr. Brian Werner at UVA
administered Petitioner’s sixth steroid injection. Id. at 39.
Ms. Lawson had her third shoulder surgery on November 11, 2019, which included
left shoulder open subpectoral biceps tenodesis and diagnostic arthroscopy of the left
shoulder with extensive debridement. Ex. 14 at 20. Petitioner had her fourth PT evaluation
on November 22, 2019. Ex. 16 at 1. Petitioner attended eleven PT sessions in the six
weeks that followed. Id. at 1-32.
In June 2020, Petitioner began seeing a pain management specialist, Dr.
Devashish Sen, for shoulder pain. Ex. 17 at 1, Ex. 18 at 8. Petitioner had her sixth MRI
on October 5, 2020. Ex. 17 at 1-2. This MRI revealed “1. Postsurgical changes from
interval biceps tenodesis. 2. Mild rotator cuff tendinosis without significant cuff tear. 3.
Similar appearance of the labrum from prior exams.” Id. On October 9, 2020, Petitioner
received her seventh steroid injection related to her shoulder pain. Ex. 18 at 10. Dr. Sen
recommended, and Petitioner began receiving, platelet rich plasma (PRP) injections on
October 22, 2020. Id. at 11-13.
III. Relevant Legal Standards
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 &
4
Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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.”). AndI may rely on my own experience (along with my predecessor Chief
Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of Health & Hum. 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. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579, 489-90 (2013). 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 to 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
4 From 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.
5
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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Ms. Lawson’s awareness of her injury is not disputed, leaving only its
severity and duration to be considered. In determining appropriate compensation for
Petitioner’s pain and suffering, I have carefully reviewed and considered the complete
record in this case, and relied upon the aforementioned legal standards as well as other
relevant Program decisions.5 However, my determination is ultimately based upon the
specific circumstances of this case.
Citing Hooper,6 Ms. Lawson requests an award of $225,000.00 in past, plus and
$1,000.00 per year for future pain and suffering, asserting that “the physical and mental
anguish she has been through, and the long duration of her injury” justify an award of this
magnitude. Br. at 11-13. She avers that “four years after her injury, [she] continues to
experience pain when using her arm, and is unable to use her arm as fully as she did
before her vaccination injury.” Id. at 13. Petitioner also argues that the medical records
“show a severe and continuous injury for the past four years . . . .” and “[a]ll conservative
treatment aimed at controlling and eradicating [P]etitioner’s vaccine-induced pain failed,
leaving [P]etitioner no choice but to undergo three painful surgeries.” Id. She therefore
asserts entitlement to “the largest [pain and suffering sum] ever awarded in the Special
Processing Unit based on her awareness of injury, the severity of her injury, and how long
Petitioner is expected to suffer from her injury.” Id. at 14.
Respondent unhelpfully elected not to propose a counter-sum, and instead has
deferred resolution of a reasonable amount for this element of damages to my discretion.
Opp. at 1. Thus, Respondent concedes some pain and suffering amount is warranted.7
Respondent contends that he could not identify any cases with reasoned damages
decisions comparable to the case at hand. Id. at 4. Respondent does argue, however,
5 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a
brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of
Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y
of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood
v. Sec’y of Health & Hum. Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020).
6Hooper v. Sec’y of Health & Hum. Servs., No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20,
2019) (awarding $185,000.00 for pain and suffering).
7
Respondent is admonished in the future to be forthcoming in proposing a damages position, in cases like
this one where the dispute centers not on entitlement to pain and suffering per se but to the amount. I will
interpret future such postures to reflect the view that Respondent cannot articulate preponderant arguments
for why Petitioner’s position is wrong, and will determine a reasonable award based on that fair supposition.
6
that Petitioner’s SLAP tear was not related to her SIRVA. Id. Respondent also notes that
Hooper is not binding on my decision in this case, and further notes that Hooper “did not
involve additional, non-SIRVA-related injuries such as a SLAP tear confounding the
assessment of past damages.” Id. at 5. Respondent further argues that Petitioner’s pain
was not continuous, as she experienced complete resolution of her symptoms following
her first surgery in July 2017, and there is no evidence that Petitioner suffered a
permanent loss of use of her shoulder. Id.
Pursuant to my oral ruling on December 11, 2020 (which is fully adopted herein), I
find that $205,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s actual pain and suffering. My calculation arises from the following reasons.
First, I find that other precedent better supports a lower figure than what Petitioner
demands.8 While Petitioner cites to Hooper, the case most analogous to the case at hand
is Schoonover.9 There, the claimant reported constant pain, had pain at rest, and often
described pain with activity as severe, with a rating of eight out of ten. Furthermore, the
pain did not improve following multiple steroid injections or two surgeries. Schoonover,
2020 WL 535134 at *4. The petitioner also underwent lengthy and significant medical and
surgical care and treatment and suffered episodes of severe pain and limited mobility. Id.
at *5. In deciding Schoonover, former Chief Special Master Dorsey observed that it was
(at the time) the only SIRVA case in the Program where a petitioner underwent two
shoulder surgeries on top of multiple steroid injections and numerous physical therapy
sessions. Id. As a result, the Schoonover petitioner was awarded $200,000 in past pain
and suffering, plus $1,200 per year for her life expectancy, reduced to net present value.
Id. at *6.
As was the case in Schoonover, the severity of the injury at issue in this case,
along with the overall course of injury including the number of interventions, support a
higher than normal award for pain and suffering in this case. Based on the current records,
over the course of just four years, Ms. Lawson underwent an unprecedented three
surgeries, seven steroid injections, four rounds of PT, six MRIs, and most recently started
PRP injections. Additionally, she explained that she was fired from her job following her
SIRVA, after her first surgery she was unable to lift her arm above her head without crying,
she lives with a constant ache of about 2/10, and her pain increases depending on her
8I acknowledge that prior pain and suffering determinations are not binding on this decision. See Nance v.
Sec'y of of Health & Human Servs., No. 06–730V, 2010 WL 3291896 at *8 (Fed.Cl.Spec.Mstr. July 30,
2010); Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are neither
bound by their own decisions nor by cases from the Court of Federal Claims, except, of course, in the same
case on remand.”). These cases, however, provide persuasive guidance herein.
9Schoonover v. Sec’y of Health & Hum. Servs., No. 13-1324V, 2020 WL 5351341 (Fed. Cl. Spec. Mstr.
Aug. 5, 2020) (awarding $200,000.00 for past pain and suffering)
7
activity. Ex. 7 at 4; Ex. 20 at 2. Petitioner further explained that she is still unable to go
running, do certain exercise routines, or lay on her stomach with her arms outstretched.
Ex. 20 at 2. Petitioner also used her vacation time treating her SIRVA, and she had lost
wages which were partial covered by short-term disability. Id. at 3. All of the above factors
favor a larger than usual past pain and suffering sum.
At the same time, however, it appears that Petitioner’s pain had an intermittent
character. As Respondent noted, there are instances documented in the record where
Petitioner did experience some relief from her pain. See e.g., Ex. 1 at 6, 184; Ex. 14 at
42. Moreover, it is ambiguous whether, and to what extent, Petitioner’s most recent
surgical intervention was related to her SIRVA or something else. I cannot conclude with
certainty that Petitioner’s SLAP tear was completely attributable to the SIRVA injury.
While the SLAP tear may have some relationship to the SIRVA, that is difficult to
determine from the record before me. This raises the question, as we get further from the
vaccine administration, whether all of Petitioner’s sequelae are related to the SIRVA, even
if Petitioner continues to live in some amount of pain. I therefore find a total past sum
lower than Hooper, although in that general range, is warranted.
I also conclude that an award of future pain and suffering is not appropriate in this
case. It does not appear that Petitioner has the level of disability that some petitioners
face after a SIRVA injury. Additionally, while Petitioner did face unfair actions by her
employer in seeking treatment for her SIRVA, ultimately, her ability to work and earn
income has been unaffected (as reflected in part by the fact that her damages do not
include lost wages, past or future).
Overall, I conclude that an award, consistent with Schoonover, of $205,000, is an
appropriate award for Petitioner’s actual pain and suffering.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $205,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.10 I also find that Petitioner
is entitled to $10,688.69 in actual unreimbursable expenses (a sum the parties did
not dispute).
10Since 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 & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
8
Accordingly, I award Petitioner a lump sum payment of $215,688.69 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9