In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1486V
UNPUBLISHED
HOPE JOHNSON, Chief Special Master Corcoran
Petitioner, Filed: January 25, 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)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 26, 2018, Hope Johnson 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”)
vaccine on October 10, 2015. Petition at 1, ¶¶ 1-3. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $67,422.95, representing $65,000.00 for her past pain and
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).
suffering, $693.81 for her past lost wages, and $1,729.14 for her unreimbursed out-
of-pocket expenses.
I. Relevant Procedural History
The Petition was filed in 2018 without medical records, shortly before the expiration
of the Vaccine Act’s statute of limitations. Petition, ECF No.1; see Section 16(a)(2). Over
the subsequent six-month period, from late September 2018 through late March 2019,
Petitioner filed an amended petition and the affidavit and medical records required to
support her claim. Amended Petition, ECF No. 21; Exhibits 1-15, ECF Nos. 9-10, 14, 17,
19; Exhibit List, ECF No. 20.
On September 9, 2019, Respondent indicated he had completed his review of the
claim and wished to engage in settlement discussions. ECF No. 26. Over the subsequent
ten-month period, the parties exchanged multiple offers and counteroffers but were
unable to informally resolve the case. E.g., Status Report, ECF No. 36. During a call held
on July 28, 2020, the parties agreed that I might be required to determine the appropriate
amount of compensation, since they could not independently agree on an amount. ECF
No. 38. Respondent estimated he could file his Rule 4 Report conceding entitlement
within 60 days, and the parties acknowledged they could concurrently finalize their briefs
regarding the appropriate amount of damages. Id.
Respondent filed his Rule 4 Report on September 28, 2020, and I issued a Ruling
on Entitlement a few days thereafter. ECF Nos. 39-40. On October 16, 2020, Petitioner
filed his damages brief. Petitioner’s Memorandum in Support of Damages (“Pet. Brief”),
ECF 42. After requesting additional time, Respondent filed his damages brief on
December 17, 2020. Respondent’s Brief on Damages (“Res. Brief”), ECF No. 45.
The issue is now ripe for adjudication.
II. Medical History
The medical records show that prior to vaccination, Petitioner suffered from chronic
back pain for approximately 15 years. E.g. Exhibit 2 at 32-33. She routinely sought
chiropractic care for this condition both before and after vaccination. See Exhibit 10.
Petitioner received the flu vaccine on October 10, 2015. Exhibit 1.
Two days after vaccination, Petitioner sought treatment for her left shoulder pain
from her primary care provider (“PCP”). Although her level of pain was not noted, she
described it as occurring immediately and worsening over several hours. Exhibit 2 at 26.
2
She was prescribed Prednisone3 and instructed to start physical therapy (“PT”) in two
weeks if her pain persisted. Id.
At her initial PT session on October 26, 2015, Petitioner rated her level of pain as
seven to eight out of ten. Exhibit 9 at 4. She was observed to have normal strength and
only mild limitation in her range of motion (“ROM”), ranging from zero to ten degrees. Id.
By her second session on October 30, 2015, Petitioner’s level of pain had decreased to
four out of ten. Id. at 10. Four days later, Petitioner described her pain as intermittent
while indicating that her shoulder felt “like it has loosened up a bit.” Id. at 9. In early
November, Petitioner reported that her “[l]eft shoulder [was] about 40% better overall.” Id.
at 7. She indicated that “[s]ome days the shoulder doesn’t hurt at all” (id.), adding that she
had “[m]ore pain free days that [sic] painful days” (id. at 8).
It appears Petitioner experienced a slight setback between her fourth and fifth PT
sessions. By her fifth visit (on November 10, 2015), Petitioner’s pain had increased to five
out of ten, but she reported that it was “getting better today.” Id. at 6. At her last PT session
on November 12, 2015, Petitioner reported less pain overall but noted that “some days it
really hurts.” Id. at 5. She continued to have difficulty sleeping and exhibited the same
mild limitation in her ROM. Id. The physical therapist recommended that PT be suspended
for 30 days so Petitioner could “return to her doctor for further evaluation of the shoulder.”
Id. at 6.
When Petitioner visited her PCP again on November 16, 2015, she reported that
her pain had improved but was now worsening. Exhibit 2 at 24. She indicated that
Prednisone “got rid of [her] pain,” but that it returned two days after her last dose. Id.
Ibuprofen and heat helped temporarily. Id. Petitioner was observed to have full ROM, with
discomfort with some movement. Id. at 25. Her PCP prescribed Tramadol4 and a
Prednisone taper and instructed her to continue heat therapy. Id. at 24.
Petitioner was seen again by her PCP for chronic back pain on December 8, 2015.
During the visit, she reported that her shoulder pain, which she described as intermittent,
was “better but not fully gone.” Exhibit 2 at 22. She rated the level of her pain as two out
of ten. Id.
On February 22, 2016, Petitioner returned to her PCP, complaining of deep, acing
pain in her left shoulder since receiving the flu vaccine in October, but the level of her
pain was not quantified. Exhibit 2 at 20. She acknowledged some relief from the first
3
Prednisone is “a synthetic glucocorticoid derived from cortisol, administered orally . . . for a wide variety
of conditions.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1508 (32th ed. 2012).
4
Tramadol hydrochloride is “an opioid analgesic used for the treatment of moderate to moderately severe
pain following surgical procedures and oral surgery; administered orally.” DORLAND’S AT 1950.
3
course of Prednisone but reported no relief from PT or chiropractic care. Id. It is important
to note, however, that there is no evidence in the medical records from Petitioner’s
chiropractor that he treated her left shoulder pain. 5 Her strength and external ROM were
observed to be slightly decreased. Exhibit 2 at 21. Petitioner’s PCP scheduled an MRI for
the next day. Id. at 20.
On March 4, 2016, Petitioner visited an orthopedist to discuss her MRI results and
left shoulder injury. Exhibit 6 at 9-11. She described the severity of her symptoms as
moderate and again exhibited good strength and mild limitation in her ROM. Id. at 9-10.
Petitioner’s orthopedist indicated that the MRI had revealed tendinosis, degenerative
changes, and defects suggestive of synovial chondromatosis.6 Exhibit 6 at 11; see Exhibit
5 at 8-9 (MRI results). He administered a cortisone injection. Exhibit 6 at 10.
When Petitioner returned approximately six weeks later, she reported
improvement following the cortisone injection. Exhibit 6 at 15. She described only “some
mild discomfort periodically with quick reaching movements and overhead activity.” Id.
Petitioner “[r]ate[d] her pain as mild in intensity.” Id.
Despite multiple visits to her PCP from April 2016 through March 2018 for
treatment of her chronic back pain and other illnesses, Petitioner did not seek treatment
for or report symptoms of her left shoulder injury again until October 2018. See Exhibit 2
at 4-19. At this October 3, 2018 visit, Petitioner complained of a lump over her left eye
and deep pain in her shoulder. Exhibit 2 at 2. She reported that the injection she received
had provided only temporary relief. Petitioner’s PCP assessed her as having chronic left
shoulder pain and treated the lump over her eye, cleaning it and prescribing medication
and ointment. He did not prescribe any treatment for her left shoulder pain, such as pain
medication or PT. Id. All prescriptions were to treat the lump over Petitioner’s eye and
sleepiness.7
5
Although Petitioner regularly visited her chiropractor throughout 2015-16, the chiropractic records
described treatment only for her back, thoracic, and neck pain. Exhibit 10 at 2-56. Only one record provides
any indication that Petitioner was experiencing left shoulder pain during this time. On a diagram of the
human body depicting Petitioner’s back pain from a visit on November 13, 2015, the markings showing the
areas of Petitioner’s pain appear to cover her left shoulder and upper portion of her arm. Id. at 10. Diagrams
from subsequent visits on November 14, 2015 and March 3, 2016 indicate pain only on Petitioner’s back,
and in one instance down her left leg. Id. at 12, 14.
6
Synovial chondromatosis is a type of non-cancerous tumor that arises in the lining of a joint.
https://rarediseases.info.nih.gov/diseases/6054/synovial-chondromatosis (last visited on Jan. 21, 2021).
7
Exhibit 2 at 2 (prescribing Nuvigil and Kelfex). Nuvigil is used to “reduce [] extreme sleepiness.”
https://www.webmd.com/drugs/2/drug-152275/nuvigil-oral/details (last visited on Jan. 21, 2021). Keflex is
medication “used to treat a wide variety of bacterial infections.” https://www.webmd.com/drugs/2/drug-
6859/keflex-oral/details (last visited on Jan. 21, 2021).
4
While she did not seek treatment for her left SIRVA from late April 2016 until
October 2018, Petitioner reported ongoing left shoulder pain when declining her annual
flu vaccine in 2016, 2017, and 2018. Exhibit 4 at 9-11.
III. 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
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.8 Hodges v. Sec’y of
8
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. In early October 2019, the majority of SPU cases were
reassigned to me as the current Chief Special Master.
5
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 v.
Sec’y of Health & Human Servs., 109 Fed. Cl. 579, 590 (2013). 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.
IV. Prior SIRVA Compensation Within SPU9
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2021, 1,874 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 1,820 of these cases, with the remaining
54 cases dismissed.
Of the compensated cases, 1,058 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 47 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.10
9
All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
10
See, e.g., Sakovits v. Sec’y of Health & Human Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
6
1,011 of this subset of post-entitlement determination, compensation-awarding
cases were the product of informal settlement - 987 cases via proffer and 24 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or in sight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Human
Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020)
(emphasis in original).
The remaining 762 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered11 Stipulated Stipulated12
Decisions by Damages Damages Agreement
Special Master
Total Cases 47 987 24 762
Lowest $55,619.60 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $75,044.44 $74,040.17 $90,000.00 $47,500.00
Median $86,784.56 $93,975.95 $115,214.49 $65,000.00
rd
3 Quartile $125,000.00 $120,390.74 $153,788.29 $91,250.53
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $509,552.31
11
One award was for an annuity only, the exact amount which was not determined at the time of judgment.
12
Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7
B. Pain and Suffering Awards in Reasoned Decisions
In the 47 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $55,000.00
to $185,000.00, with $85,000.00 the median amount. Only four of these cases involved
an award for future pain and suffering, with yearly awards range from $500.00 to
$1,000.00.13
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment of 40 days to
over six months. In cases with more significant initial pain, petitioners experienced this
greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in ROM, and MRI imaging showed evidence of mild to moderate pathologies
such as tendinosis, bursitis, or edema. These SIRVAs usually resolved after one to two
cortisone injections and two months or less of PT. None required surgery. The duration
of the injury ranged from six to 29 months, with petitioners averaging approximately nine
months of pain. Although some petitioners asserted residual pain, the prognosis in these
cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 50 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In three cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering. In the fourth case involving an
award of future pain and suffering, the petitioner provided evidence of an ongoing SIRVA
expected to resolve within the subsequent year.
V. The Parties’ Arguments
The parties in this case agreed that Ms. Johnson should be awarded $693.81 for
her past lost wages and $1,729.14 for her unreimbursed out-of-pocket expenses. Pet.
Brief at 11 n.3, 12 n.4; Res. Brief at 19. Thus, the only area of disagreement is regarding
the amount of compensation which should be awarded for Petitioner’s past pain and
13
Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa
v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
8
suffering.
Petitioner requested $80,000.00 for her past pain and suffering. Pet. Brief at 17.
Emphasizing the two-day period between vaccination on October 10, 2015, and the date
she sought treatment for her SIRVA (October 12, 2015) (id. at 12), Petitioner asserted
her pain was “immediate and intense” (id. at 13). She maintained that she experienced
this intense level of pain, which interfered with her daily activities, during the six months
following vaccination. Id. at 14. Regarding the overall duration of her SIRVA, Petitioner
alleged she suffered “persistent pain and limited range of motion, which impacted care
for her back pain,” for five years. Id. at 15. Based on this description of the intensity and
duration of her symptoms, Petitioner argued her symptoms were comparable to those
described in nine reasoned decisions in which the petitioners received awards ranging
from $75,000.00 to $85,000.00 for their past pain and suffering. Id. at 15-17.
In reaction, Respondent maintained Petitioner should be awarded only $57,500.00
for her past pain and suffering. Res. Brief at 1, 19. Describing two additional non-surgical
cases in which petitioners were awarded $67,000.00 for their past pain and suffering,
Respondent argued the severity and duration of Petitioner’s symptoms were less than
those suffered by these two petitioners and the petitioners in the nine cases discussed in
Petitioner’s brief. Id. at 17-18. Respondent also spent greater than 50 percent of his brief
discussing the following topics: 1) the Vaccine Act’s $250,000.00 cap on awards for pain
and suffering, 2) the large number of proffered awards in SPU cases, 3) awards for
shoulder injuries in the traditional tort system which appear to be substantially lower, and
4) a “meeting-in-the-middle” method that Respondent believes is being utilized by the
special masters when determining the appropriate amount of damages to be awarded.
Id. at 5-16; Appendix A to Res. Brief (list of traditional tort system cases); see Section
15(a)(4) ($250,000 statutory cap).
VI. Appropriate Compensation for Petitioner’s Pain and Suffering
A. General Guidance for Analysis
The guidance provided by the Graves decision is clear,14 and I have previously
addressed the more general arguments made by Respondent during expedited motions
days and in other damages decisions. While noting that this end result may occur in some
cases (and disappoint both sides as a result), I have in fact rejected the “meeting-in-the-
middle” method Respondent claims is being used, based on the proposition that “each
petitioner deserves an examination of the specific facts and circumstances in her or his
case.” Sakovits, 2020 WL 3729420, at *3. I also have rejected Respondent’s argument
that the amounts awarded in proffered cases are a more accurate gauge of the
14
See supra Section III (for further discussion).
9
appropriate amount to be awarded than reasoned decisions from the court and special
masters. Id. at *4. While “settled cases and proffers provide some evidence of the kinds
of awards received overall in comparable cases,” they are not as persuasive as reasoned
decisions from a judicial neutral. Id. (emphasis in original). Taken as a whole, however,
the data from these decisions can be a helpful gauge of the compensation being awarded
in SPU SIRVA cases.
I also have not previously given great weight to Respondent’s citation to pain and
suffering determinations from traditional tort system state court cases, noting that
Congress intended the “no-fault” system established in the Vaccine Program to be
generous. H.R. REP. NO. 99-908, at 12-13 reprinted in 1986 U.S.C.C.A.N. 6344, 6353-54.
Thus, Vaccine Program compensation will likely be greater than those awarded in civil
actions. Additionally, the descriptions of the traditional tort system cases proposed by
Respondent often lack basic information needed for comparison. Rafferty v. Sec’y of
Health & Human Servs., No. 17-1906V, 2020 WL 3495956, at *18 (Fed. Cl. Spec. Mstr.
May 21, 2020). As a result, “SIRVA awards in the Vaccine Program are self-evidently
more relevant and apposite.” Id.
B. Specific Analysis
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing the analysis in this case, I review the record as a whole to include
the medical records and affidavits filed and all assertions made by the parties in written
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
Although the medical records support Petitioner’s claim of significant and
immediate pain upon vaccination, they describe a more moderate SIRVA injury than that
asserted by Petitioner. The records from six months following vaccination show
Petitioner’s pain levels decreased after taking oral steroids and engaging in six PT
sessions. She consistently exhibited normal strength, and the reduction in ROM was
never significant. After receiving a cortisone injection less than five months after
vaccination, Petitioner’s pain decreased further. By six months after vaccination,
Petitioner reported only minor discomfort with certain movements.
For the 30-month period thereafter, from late April 2016 until October 2018,
Petitioner did not seek treatment for the left shoulder pain she maintained she was
10
experiencing. Despite seeking care for other conditions, such as her back, thoracic, and
neck pain, she mentioned her left shoulder pain only three times, when declining the flu
vaccine. While this lack of treatment does not mean Petitioner’s left shoulder injury was
fully resolved, it does indicate her pain was not significant enough to cause her to seek
further treatment. Additionally, it is important to note that the date Petitioner returned to
her PCP for treatment (October 3, 2018) was one week after she filed her vaccine petition.
Petitioner’s claim of persistent pain and limited ROM for the five years after vaccination15
is not supported by the information contained in her medical records.
An additional factor to consider when determining the appropriate amount of
compensation for Petitioner’s pain and suffering is the chronic back, thoracic, and neck
pain she suffered both prior to and during her SIRVA injury. Petitioner argues that her
SIRVA injury impacted the treatment of this pain,16 but the chiropractic records do not
support this assertion. Furthermore, it is clear that some of the difficulties Petitioner
describes, such as her problems sleeping, can at least partially be attributed to this other
unrelated source of pain.
Overall, I find that the events and circumstances surrounding Petitioner’s SIRVA
injury more closely resemble those of the petitioners in the two cases cited by
Respondent, George and Bartholomew, than in the cases cited by Petitioner.17 One of
the latter petitioners, for example, was awarded $80,000.00 (the amount requested
herein) for past pain and suffering, but experienced initial severe pain for a longer period
than the Petitioner in this case (six months as opposed to less than two months). Kent v.
Sec’y of Health & Human Servs., No. 17-0073V, 2019 WL 5579493, at *12 (Fed. Cl. Spec.
Mstr. Aug. 7, 2019). Additionally, the Kent petitioner’s ROM was severely to moderately
limited, a more significant reduction than the mild limitation experienced by Petitioner,
who required much fewer PT sessions. Id. at *12-13.
After examining all the most relevant reasoned decisions in SPU SIRVA cases, I
have concluded the severity and duration of Petitioner’s SIRVA most closely resembles
that experienced by the petitioner in Kuhn, who was awarded $67,500.00. Kuhn v. Sec’y
of Health & Human Servs., No. 18-0091V, 2020 WL 3750994 (Fed. Cl. Spec. Mstr. June
5, 2020). Both petitioners suffered severe pain initially but only mild limitations in ROM,
sought treatment soon after vaccination, and received relief within a few months after one
cortisone injection and only a month of PT. Id. at *2.
15
Pet. Brief at 15; Exhibit 15 at ¶ 13 (Petitioner’s affidavit).
16
Pet. Brief at 9-10 (citing Petitioner’s affidavit, Exhibit 15 at ¶ 15).
17
George v. Sec’y of Health & Human Servs., No. 18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July
10, 2020); Bartholomew v. Sec’y of Health & Human Servs., No. 18-1570V, 2020 WL 3639805 (Fed. Cl.
Spec. Mstr. June 5, 2020).
11
There is one difference, however, which dictates that Petitioner should receive a
lower award than the Kuhn petitioner. Like the petitioner in Murray, who received an
award of $65,000.00, Ms. Johnson also had an unrelated condition which constituted an
additional source of pain. Murray v. Sec’y of Health & Human Servs., No. 18-0534V, 2020
WL 4522483, at *4 (Fed. Cl. Spec. Mstr. July 6, 2020). Petitioner otherwise has not
established that the persistent and/or ongoing nature of her pain or injury warrant a future
component for pain and suffering, beyond the sum I am allowing for past pain and
suffering.
VII. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $65,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering. I also find that
Petitioner is entitled to $693.81 for her past lost wages, and $1,729.14 for her
unreimbursed out-of-pocket expenses.
I thus award Petitioner a lump sum payment of $67,422.95, representing
$65,000.00 for her past/actual pain and suffering, $693.81 for her actual lost
earnings, and $1,729.14 for her actual unreimbursable expenses in the form of a
check payable to Petitioner. 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.18
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18
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.
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