In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-804V
UNPUBLISHED
JULIA HAYES, Chief Special Master Corcoran
Petitioner, Filed: January 6, 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 VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On June 15, 2017, Julia Hayes 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”) vaccine received on September
29, 2016. Petition, ECF No. 1 at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
For the reasons described below, and after holding a brief hearing in this matter, I
find that Petitioner is entitled to an award of damages in the amount $121,470.00,
representing compensation of $120,000.00 for her actual pain and suffering, plus
$1,470.00 for her past unreimbursed expenses.
1
Because this 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. 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).
I. Procedural Overview
As noted above, the case was initiated in June 2017. On February 1, 2018,
Respondent filed a Rule 4(c) report in which he conceded that Petitioner was entitled to
compensation in this case. ECF No. 17. Accordingly, on February 2, 2018, a ruling on
entitlement issued finding Petitioner entitled to compensation for SIRVA. ECF No. 19.
The parties were unable to informally resolve the issue of damages, so a briefing
schedule was set on March 12, 2020. ECF No. 53. 3 Petitioner filed her brief on June 10,
2020, requesting that I award her $135,000.00 in compensation representing her
past/actual pain and suffering. ECF No. 56. Conversely, in a brief filed on September 8,
2020, Respondent argued that Petitioner’s award “should be lower . . . arguably
significantly lower” than the $125,000.00 to $127,000.00 awarded in the cases cited by
Petitioner in support of her proposed award, although Respondent declined to
recommend a specific award amount. ECF No. 58 at 7, 11. 4 Petitioner filed a Reply brief
on October 2, 2020. ECF No. 60. The parties otherwise agreed an award of $1,470.00 in
compensation for Petitioner’s past unreimbursed expenses was appropriate, and there
are no other damages components in contention beyond pain and suffering. ECF No. 58
at 11, ECF No. 62.
In October of this year, I informed the parties that this case was appropriate for an
expedited hearing and ruling, at which time I would decide the disputed damages issues
based on all evidence filed to date plus whatever oral argument they wanted to make.
ECF No. 61. The parties agreed, and an expedited telephonic hearing took place on
December 11, 2020. ECF Nos. 62-63; Minute Entry dated December 11, 2020; Transcript
filed December 28, 2020, ECF No. 65. 5 I orally ruled on the pain and suffering damages
component at that time, and this Decision memorializes my determination.
II. Legal Standard and Prior SIRVA Pain and Suffering Awards
In several recent decisions, I have discussed at length the legal standard to be
considered in determining damages (including out-of-pocket losses as well as pain and
3
By that time this claim had been previously scheduled for a hearing on damages twice. The most recently
scheduled hearing was cancelled (and the case stayed) due to Petitioner requiring shoulder surgery. ECF
No. 53.
4
It is unhelpful to resolution of pain and suffering issues when Respondent refuses to propose an alternative
award amount – and in fact almost suggests that the sum proposed by Petitioner should be the “starting
point” for any ultimate award. Respondent is admonished in the future to be forthcoming about the sum he
proposes in disputed pain and suffering cases.
5
Michael Milmoe appeared on behalf of Petitioner, and Traci Patton appeared on behalf of Respondent at
the December 11, 2020 Hearing.
2
suffering) in SPU cases. I fully adopt and hereby incorporate my prior discussion in
Sections V and VI of Wilt v. Sec’y of Health & Human Servs., No. 18-0446V, 2020 WL
1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020), Sections IV and V of Rafferty v. Sec’y of
Health & Human Servs., No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec. Mstr. May 21,
2020), as well as Sections VI(A) and VI(B) of Smallwood v. Sec’y of Health & Human
Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020).
In sum, 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). 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). 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. 6
III. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Petitioner’s awareness of the injury is not disputed, leaving only the
severity and duration of that injury to be considered. In determining appropriate
compensation for Petitioner’s pain and suffering, I have carefully reviewed and taken into
account the complete record in this case, including, but not limited to: Petitioner’s medical
records, affidavits, filings, and all assertions made by the parties in written documents
and at the expedited hearing held on December 11, 2020. I have also considered prior
awards for pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon
my experience adjudicating these cases. However, my determination is ultimately based
upon the specific circumstances of this case.
Respondent asserts that pain and suffering awards outside the Program (often
arising in state court tort actions) should be considered (and has noted that they tend to
be lower in magnitude). However, I find that awards issued within the Program (especially
as set forth in reasoned decisions) are most persuasive. It is important to bear in mind
the policy purposes of the Program – that it is no-fault and is intended to be generous in
many regards, resulting in a slightly different scale (that admittedly may produce higher
award values than the non-Program comparables pointed to by Respondent). Thus, other
6
I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (citing 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)).
3
reasoned decisions in the Vaccine Program provide the most useful guidance in reaching
an award amount in this case. 7
Pursuant to my oral ruling on December 11, 2020 (which is fully adopted herein), I
find that $120,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s past pain and suffering.
First, I find that Petitioner’s pain was severe immediately, and prompted her to
seek treatment on October 13, 2016, approximately two weeks after her September 29,
2016 flu vaccination. Ex. 1 at 1, Ex. 2 at 2. Thereafter, she underwent fairly significant
albeit intermittent treatment for her injury, to include: physical therapy, 8 one steroid
injection, 9 an MRI scan, 10 and arthroscopic surgery (Ex. 18 at 1).
Second, Petitioner’s medical records establish that she suffered a relatively severe
injury. Petitioner’s reported pain levels fluctuated over time, initially her pain was reported
as very severe, but by June 2017 Petitioner’s reported pain was on balance relatively
moderate. 11 However, Petitioner’s treatment culminated in a surgical procedure nearly
three years after her vaccination. On August 2, 2019, Petitioner underwent a left shoulder
arthroscopy consisting of
7
I reject Respondent’s argument, however, that the amounts awarded in proffered cases are a more
accurate gauge of the appropriate amount to be awarded than reasoned decisions from the court and
special masters. A proffer is simply Respondent’s assessment of the appropriate amount to be awarded. A
special master’s approval of an award at a proffered level does not provide a reasoned instance, produced
by a judicial neutral, that can be looked to when evaluating the damages to be awarded – even if settled
cases and proffers provide some evidence of the kinds of awards received overall in comparable cases.
8
Petitioner engaged in 7 physical therapy sessions prior to her surgery in June and July 2018 (Ex. 16), and
25 physical therapy sessions post-surgery (Ex. 19).
9
Petitioner received a subacromial steroid injection on August 20, 2018. Ex. 12 at 1-2.
10
Petitioner’s MRI scan occurred on August 15, 2018 and indicated an impression of infraspinatus
tendinosis. Ex. 11 at 1-2
11
Petitioner reported “severe pain as of 10/9 and 10/10” at her initial post-vaccination medical appointment
on October 13, 2016. Ex. 2 at 2, 19. But by October 25, 2016, while Petitioner reported continued pain she
indicated she could manage “just fine” and she was advised she could return to regular work duty using her
left hand as tolerated. Ex. 2 at 5-6. On June 9, 2017, Petitioner reported mild to moderate left shoulder pain
that prevented her from working out. Ex. 4 at 1, 3. On June 13, 2018, Petitioner reported intermittent pain
that was moderate at times. Ex. 9 at 1-2. Petitioner reported her symptoms were initially severe post
vaccination, but gradually diminished over six months, however she reported a “flare-up” the previous
winter. Id. On August 20, 2018, Petitioner again reported intermittent pain, that was not excruciating on a
daily basis, “really more of a nuisance persisting discomfort in the proximal lateral arm area.” Ex. 12 at 1-2.
On June 4, 2019, Petitioner reported that her pain was “mild, but persisting,” however she noted that her
pain had previously returned with a “vengeance” about 8 weeks after her August 20, 2018 injection. Ex. 17
at 1-2. Post-surgery Petitioner reported a pain level of 5/10 at her initial physical therapy session, her pain
level rose and fell over the course of her therapy, however by her final physical therapy session Petitioner
reported a pain level of 1/10 with overhead movement. Ex. 19 at 4, 184.
4
1. Bankart capsule/labral repair/reconstruction;
2. Capsular shift; and
3. Subacromial decompression.
Ex. 18 at 1. Petitioner’s postoperative diagnoses included: 1) rotator cuff
tendinopathy/bursitis/impingement and 2) Bankart lesion/instability. Id.
However, Petitioner made an excellent recovery subsequent to her surgical
procedure, and after the completion of an additional 25 physical therapy sessions which
included undergoing dry needling treatment which Petitioner describes in her
supplemental affidavit as very painful. Ex. 21 at 4. At a November 25, 2019 orthopedic
evaluation approximately three and a half months post-surgery, Petitioner reported she
felt 75 percent improved with mild pain and noted that the dry needling performed at
physical therapy in the posterior inferior part of her shoulder “helped tremendously loosen
her up a bit.” Ex. 18 at 5. At her last physical therapy session on January 15, 2020,
Petitioner reported a pain level of one out of ten with overhead movement, and was
assessed by her physical therapist as having “made excellent progress since her surgery
and has restored full strength and ROM [range of motion] at this time.” Ex. 19 at 184. It
was further noted that at that time Petitioner was able to undertake all ADL’s (activities of
daily living) without limitations and had met her goals. Id. Petitioner was discharged and
sought no further treatment.
In making my determination, I have fully considered Petitioner’s sworn affidavits,
and those of her father and friends, which detail the limitations in her overall enjoyment
of life, school responsibilities, work and internship duties, and exercise of daily functions
attributable to her shoulder injury. Exs. 8, 10, 21-24. While, Petitioner describes ongoing
limitations as a result of her injury, 12 I find that Petitioner was significantly recovered at
the time of her discharge from physical therapy on January 15, 2020, as described above.
Significant to my determination of an appropriate award in this case are the
multiple significant gaps in Petitioner’s treatment for her shoulder injury. Petitioner sought
no treatment for her injury during the following time periods: between October 26, 2016 -
June 8, 2017 13, between June 10, 2017 – June 12, 2018 14, and between August 21, 2018
12
In her supplemental affidavit dated May 31, 2020, Petitioner asserts she is 95 percent recovered. Ex. 21
at 4.
13
Petitioner was however seen by the Occupational Health Center on January 24, 2017 while applying for
a new job and listed her shoulder injury as a work-related injury. Ex. 2 at 12.
14
Petitioner was referred to physical therapy by Todd Michener, MD, on June 9, 2017. Ex. 4 at 3. However,
she did not follow-up with physical therapy or seek any further treatment for another year when she saw
James FitzGibbons, MD on June 13, 2018. Ex. 9 at 1.
5
– June 3, 2019. Treatment gaps are a relevant consideration in determining the degree
of Petitioner's pain and suffering. Dirksen v. Sec'y of Health & Human Servs., No. 16-
1461V, 2018 WL 6293201, at *9-10 (Fed. Cl. Spec. Mstr. Oct. 18, 2018). Petitioner
asserts the gaps are due to the fact that she was a busy college student, that she was
working and pursuing a prestigious internship, and that she was more comfortable
treating in her hometown as apposed to at her temporary college residence. ECF 60 at
10. While these are not unreasonable points (and I do consider the overall duration of
Petitioner’s condition and efforts to resolve it), the fact that she was able to tolerate her
pain and other limitations for months at a time, without the need for professional medical
care, tends to suggest that overall her injury was less severe in nature than what a person
who sought constant intervention sooner might be experiencing.
Petitioner argues that her case is comparable to the Dobbins, Wallace and Nute
cases, all of which resulted in awards of $125,000.00 for past pain and suffering. 15 But
she requests a higher award of $135,000.00 due to her age and other personal
circumstances. I do not find the facts of the case justify such an award, however. Rather,
I find that this case is more comparable to the Stoliker case (cited by Petitioner in
counsel’s oral argument), where an award of $120,000.00 was granted, under
circumstances similar to this case. Stoliker v. Sec’y of Health & Human Servs., No. 17-
0990V, 2020 WL 5512534 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $120,000.00 for
pain and suffering and $1,119.77 for past unreimbursable expenses). The Stoliker
petitioner also suffered a relatively significant injury requiring surgical intervention, and
likewise Stoliker petitioner also had a significant gap in treatment. I will thus approve a
somewhat lower past pain and suffering award.
IV. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $121,470.00, representing compensation of $120,000.00 for
her actual pain and suffering, plus $1,470.00 for her past unreimbursed expenses.
This amount represents compensation for all damages that would be available under
Section 15(a). The clerk of the court is directed to enter judgment in accordance with this
decision. 16
15
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); 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 in pain and
suffering); 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).
16
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7