In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-74V
UNPUBLISHED
CHERYL WELCH, Chief Special Master Corcoran
Petitioner, Filed: April 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 Injury (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On January 16, 2018, Cheryl Welch 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 as a result of receiving an influenza (“flu”) vaccine
on September 29, 2016, she suffered from a shoulder injury related to vaccine
administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters (the “SPU”), and Petitioner was determined to be
entitled to damages – but the parties could not agree on the amount to be awarded.
For the reasons discussed below, and after hearing argument from the parties, I
find that Petitioner is entitled to $210,000.00 for actual/past pain and suffering, plus
1
Although this Decision has been deemed unpublished, it will be posted on the United States Court of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).
$11,234.94 for past unreimbursed expenses, and $1,609.13 in past lost wages, for a total
award of $222,844.07.
I. Relevant Procedural History
A little more than a year after the case’s initiation, on March 8, 2019, Respondent
filed a Rule 4(c) Report conceding that Petitioner was entitled to compensation. ECF No.
32. A ruling on entitlement issued on March 8, 2019. ECF No. 35. The parties thereafter
attempted to informally resolve damages but were unsuccessful.
On November 13, 2020, I issued a scheduling order regarding the briefing of
disputed damages issues. ECF No. 80. The parties filed their respective briefs and replies
on November 30, 2020 (ECF No. 85, Petitioner’s Memorandum in Support of Damages
(“Br.”)), December 30, 2020 (ECF No. 86, Respondent’s Brief on Damages (“Resp.”)),
and January 13, 2021 (ECF No. 88, Petitioner’s Reply to Respondent’s December 30,
2020 Memorandum in Support of Damages). The parties stated on January 29, 2021,
that they would be amenable to an expedited hearing and ruling at an SPU Motions Day.
ECF No. 90. At that time, the only disputed damages to be resolved would involve pain
and suffering. Id. The hearing was held on March 26, 2021, 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. Welch was a 60-year old woman who received a flu vaccine on
September 29, 2016 prior to knee replacement surgery. Ex. 1 at 1; Ex. 3 at 12; Ex. 4 at
338.
Petitioner first complained of shoulder pain on October 6, 2016, stating that it
began after a September 29, 2016 vaccination. Ex. 10 at 4. Her course of treatment was
not significant at this time, consisting of an MRI on November 18, 2016 (Ex. 3 at 37-38)
and a cortisone injection on December 1, 2016. Id. at 6-7. On February 3, 2017, Petitioner
reported that her pain returned, and she exhibited a reduced range of motion upon
examination. Id. at 4-5. Petitioner underwent left shoulder arthroscopic acromioplasty and
rotator cuff repair on February 8, 2017. Id. at 28-29.
3
At the end of the hearing held on March 26, 2021, 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
Between February 8 and May 30, 2017, Petitioner attended thirteen physical
therapy sessions and showed some improvement. At the time of her discharge, Ms.
Welch had returned to her prior levels of functions but had some limited range of motion.
Ex. 8 at 15. She reported continued pain and reduced range of motion in July 2017 and
had a second cortisone injection. Ex. 11 at 1-2. Petitioner did not seek additional care for
eleven months. However, she submitted an affidavit indicating that she continued to
experience pain, described as a constant ache, at that time. Ex. 12 at 5-6. 4 In August
2018 Petitioner returned to her orthopedist reporting continued pain and reduced range
of motion. Ex. 14 at 3-4. She underwent a second shoulder surgery on September 4,
2018. Id. at 5.
Petitioner attended six physical therapy sessions between November 14, 2018 and
January 16, 2019. At the initial evaluation she reported “consistently had a 3/10 achy
pain, but pain can increase to 7/10 with reaching or quick movements.” Ex. 17 at 3, 5; Ex.
31 at 5-6. Petitioner continued to complain of pain and weakness, and had a third steroid
injection on January 21, 2019. Ex. 18 at 1-2. An MRI on March 1, 2018 showed a re-tear
of the supraspinatus and infraspinatus tendons, mild tendinosis, and some signs of
bursitis. Ex. 19 at 6-7. Due to “lifestyle-limiting left shoulder pain” petitioner underwent a
reverse total shoulder replacement on April 30, 2019. Ex. 20 at 9-12. She attended sixteen
occupational therapy sessions between May 16, 2019 and July 24, 2019.
In March of 2020, Petitioner continued to complain of left shoulder pain, which may
have been exacerbated by degenerative disc disease. Ex. 29 at 32-35. She attended five
additional physical therapy sessions in April 2020 with minimal results and was
discharged on May 4, 2020 due to lack of improvement and cervical pain. Ex. 28 at 126.
An MRI on June 17, 2020 showed moderate to severe stenosis, which may have
contributed to her shoulder pain. Ex. 29 at 39-40. Petitioner than had a neurosurgical
consultation on July 24, 2020 for left shoulder pain, reduced range of motion, and chronic
lower back pain.
Petitioner attended eight additional physical therapy sessions for her shoulder in
August-September 2020, with some improvement. Ex. 32 at 38-39, 51-63. On September
9, 2020, Petitioner reported her pain levels was 4/10 and she had made a 50 percent
improvement since the initial evaluation. At that time, she also began treating her lower
back pain. Id. at 12-35. While she had some improvement, Petitioner ultimately consulted
with a pain management doctor on September 29, 2020, reporting an average pain of
6/10 and 8/10 at worse. Id. at 20-23.
4
Petitioner’s second affidavit dated October 9, 2019 provides additional details about why she was not
treating during this time, explaining that she was caring for her terminally ill husband until November 2017
when he passed away. Ex. 26 at 4.
3
At the time of the hearing, Ms. Welch reported she continues to have chronic pain,
plus weakness in her left shoulder. Ex. 33 at 2-3.
III. Legal Standard
Compensation awarded pursuant to the Vaccine Act may include an award “[f]or
actual and projected pain and suffering and emotional distress from the vaccine-related
injury, . . . 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). 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 precise 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) (“Awards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V, 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)).
A special master may also look to prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own
experience adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d
958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would
use their accumulated expertise in the field of vaccine injuries to judge the merits of
individual claims). Importantly, however, it must also be stressed that pain and suffering
is not determined based on a continuum. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579 (2013).
4
In Graves, Judge Merrow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap, criticizing this as constituting “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, he
found that pain and suffering should be assessed 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, applying the statutory cap only thereafter. Id. at
595.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Petitioner’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. I have also considered prior awards for pain and suffering in both SPU
and non-SPU SIRVA cases, and relied upon my experience adjudicating such cases.
However, my determination is ultimately based upon the specific circumstances of this
case.
Petitioner requests an award of $230,000.00 in pain, suffering, and emotional
distress, plus $1,000.00 per year for future pain and suffering. Petitioner argues that her
extensive course of treatment, taking place over more than four years, justifies this award.
Her treatment included three surgeries, three cortisone injections, multiple MRIs, over
four dozen physical therapy sessions, continued home exercises, and prescription
medications. Br. at 44. Further, during the first temporal stage of her injury Petitioner was
caring for her terminally ill husband and retired early from her job as an addiction
counselor in part due to the pain and emotional distress from the SIRVA. Id. at 45.
Petitioner cites to two SPU cases as analogous to hers: Schoonover v. Sec'y of HHS,
No. 16-1324V, 2020 WL 5351341 (Fed. Cl. Aug. 5, 2020) (awarding $200,000 for past
pain and suffering, and $1,200 per year for future pain and suffering) and Hooper v. Sec’y
of HHS, Dk. No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. March 20, 2019
(awarding $185,000 for past pain and suffering, and $1,500 per year for future pain and
suffering).
In response, Respondent has proposed an award of $166,500.00 for pain and
suffering with no future component. Resp. at 12, 13. Respondent noted that this was a
“mild to moderately severe” SIRVA, along with evidence that Petitioner’s surgeries
provides some relief. Id. at 10. Additionally, certain comorbidities unrelated to the vaccine
injury, including degenerative changes in Petitioner’s cervical spine, may be contributing
5
to her pain. Respondent also noted that Petitioner had treatment gaps, such as between
July 2017 and August 2018. Id. at 11, n.5. According to Respondent, this distinguishes
Ms. Welch’s case from Hooper and Schoonover because in both those cases petitioners
experienced continuous, severe pain.
Pursuant to my oral ruling on March 26, 2021 (which is fully adopted herein), I find
that $210,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s actual pain and suffering.
The cases most analogous to the case at hand, and hence providing good
benchmarks for what the award in this case should be, 5 are Schoonover and Lawson. 6
The petitioner in Schoonover reported constant pain both at rest and with activities, rating
it at eight out of ten. The pain did not improve following multiple steroid injections, and
even after two surgeries the petitioner continued to have pain. Schoonover, 2020 WL
5351341, at *4. At the time, Schoonover was the only SIRVA case in the Vaccine Program
where a petitioner underwent two shoulder surgeries on top of multiple steroid injections
and numerous physical therapy sessions. Id. Due to the unique severity level of the injury,
Schoonover petitioner was awarded $200,000 in past pain and suffering, and $1,200 per
year for her life expectancy, reduced to net present value. Id. at *6.
The Lawson petitioner, a 35-year-old nurse, also received a fairly high award -
$205,000 for actual pain and suffering. Lawson, 2021 WL 688560, at *5. There, over just
four years, the petitioner underwent three surgeries, seven cortisone injections, four
rounds of physical therapy, six MRIs, and continues to suffer pain. Id. Her pain, however,
was intermittent in character, and she also suffered from some comorbidities that may not
have been related to her SIRVA. Id. at *6.
Like Schoonover and Lawson, the severity of Petitioner’s injury, plus her overall
therapeutic course, including the number of interventions over four years, supports a
higher than normal award for pain and suffering. Based on the current records, Petitioner
underwent three surgeries, three steroid injections, dozens of physical therapy sessions,
and numerous MRIs. There are some periods when Petitioner was not treating, but she
persuasively explained in her affidavits why these gaps occurred, and I therefore do not
find they suggest a lower severity than alleged. Further, as in Lawson, certain
5
I acknowledge that neither Schoonover nor Lawson is binding on this decision. 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) (“[s]pecial 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.”).
6
Lawson v. Sec'y of Health & Hum. Servs., No. 18-882V, 2021 WL 688560 (Fed. Cl. Jan. 5, 2021).
6
comorbidities may have played a role and complicated her injury, but not enough to
significantly detract from award.
However, 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. The ongoing nature of her injury therefore is not
of the heightened degree that would make a future component appropriate.
Overall, I conclude that an award, consistent with Schoonover and Lawson, of
$210,000, is an appropriate award for Petitioner’s actual pain and suffering.
I. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $210,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 7 I also find that Petitioner
is entitled to $11,234.94 in actual unreimbursable expenses and $1,609.13 in past
lost wages.
Accordingly, I award Petitioner a lump sum payment of $222,844.07 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. 8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7
Since 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
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.
7