In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-814V
UNPUBLISHED
PATRICIA MCDORMAN, Chief Special Master Corcoran
Petitioner, Filed: October 18, 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.
Terrence Kevin Mangan, Jr, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES 1
On June 3, 2019, Patricia McDorman 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 Table Injury – a Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of an influenza (“flu”) vaccine
received on November 16, 2017. Petition, ECF No. 1 at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters (the “SPU”). Although
Respondent conceded entitlement, the parties could not agree on damages, so the
disputed issues were submitted to SPU Motions Day.
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.
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).
For the reasons described below, and after holding a brief hearing in this matter, I
find that Petitioner is entitled to $200,000.00, for her actual pain and suffering, plus
$4,765.20 representing Petitioner’s unreimbursed expenses, and $2,078.56 representing
Petitioner’s lost wages.
I. Procedural Overview
As noted above, the case was initiated in June 2019. On October 1, 2020,
Respondent filed a Rule 4(c) Report in which he conceded that Petitioner was entitled to
compensation in this case. ECF No. 30. Accordingly, on October 5, 2020, a ruling on
entitlement issued finding Petitioner entitled to compensation for her SIRVA injury. ECF
No. 32.
The parties were subsequently unable to informally resolve the issue of damages,
so a briefing schedule was set on March 29, 2021. ECF No. 42. Petitioner filed her brief
on June 11, 2021, requesting that I award her $240,000.00 in compensation -
representing her past/actual pain and suffering. ECF No. 47. Conversely, in a brief filed
on July 2, 2021, Respondent argued that Petitioner should be awarded only $145,000.00
for past pain and suffering. ECF No. 48. Petitioner filed a Reply brief on July 26, 2021.
ECF No. 50. The parties have otherwise agreed upon an award of $4,765.20 representing
Petitioner’s unreimbursed expenses and $2,078.56 representing Petitioner’s lost wages,
so those amounts are not disputed and will be awarded as well. ECF No. 48 at 1.
In August of this year, I informed the parties that this case was appropriate for an
expedited hearing and ruling via my “Motions Day” practice, 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. 71. The parties agreed, and an expedited
hearing took place on September 24, 2021. Minute Entry dated October 1, 2021. 3 I orally
ruled on Petitioner’s damages at that time, and this Decision memorializes my
determination.
II. Pain and Suffering
A. Legal Standard and Prior SIRVA Pain and Suffering Awards
In another recent decision, I discussed at length the legal standard to be
considered in determining damages and prior SIRVA compensation within SPU. I fully
adopt and hereby incorporate my prior discussion in Sections II and III of Berge v. Sec’y
3Leah Durant appeared on behalf of Petitioner, and Terrence Mangan appeared on behalf of Respondent.
The transcript of the September 24, 2021 Hearing in this case was not filed as of the date of this Decision,
but my oral ruling is incorporated by reference herein.
2
Health & Hum. Servs., No. 19-1474V, 2021 WL 4144999, at *1-3. (Fed. Cl. Spec. Mstr.
Aug. 17, 2021).
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 & Hum. 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. 4
B. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Ms. McDorman’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 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 September 24, 2021. 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.
For the reasons discussed below, and pursuant to my oral ruling on September
24, 2021 (which is fully adopted herein), I find that $200,000.00 represents a fair and
appropriate amount of compensation for Petitioner’s past pain and suffering. There are
several related bases for my decision.
First, the record establishes that Petitioner’s shoulder pain was initially severe and
acute enough to prompt her to call her primary care provider the same day she received
her vaccination noting pain and numbness in her left arm. She also reported difficulty
moving her arm and described her pain as a 6/10. Ex. 3 at 84-85. Thereafter, she
underwent a significant amount of treatment for her injury for over two years, to include:
4I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (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)).
3
multiple rounds of physical therapy 5, ten steroid injections6, an MRI scan 7, and two
separate arthroscopic surgeries. 8
Second, Petitioner’s medical records establish that the course of her injury, and
level of treatment it required, was far more severe than usual. While her reported pain
levels varied significantly (at times relatively high, but also fairly low on other occasions),
it was persistent enough to cause her to seek out, and receive, a significant amount of
medical treatment as described above. Of note, only five months after her vaccination
Petitioner underwent her first arthroscopic surgery on April 16, 2018. Her post-operative
diagnoses included: partially torn rotator cuff, chronic impingement syndrome, chronic
left AC joint pain, type 1 SLAP lesion with fraying of the superior labrum, and partial biceps
tendon tear. Ex. 4 at 1.
Unfortunately, Petitioner’s surgical procedure did not relieve her shoulder pain, and
she continued to seek out medical intervention to relieve it. But despite undergoing an
additional 35 physical therapy appointments (Ex. 5 at 166-168) and seven steroid
injections administered across three appointments (Ex. 7 at 26-27, 39, 43-45) – all
subsequent to her April 2018 surgery – Petitioner’s shoulder injury persisted. On
December 26, 2018, Petitioner underwent a second arthroscopic surgery. Her post-
operative diagnoses included: rotator cuff tendinosis, biceps tendon degeneration and
tear, labral degeneration and fraying, SLAP tear, AC joint arthrosis, glenohumeral
synovitis, and subacromial bursitis and adhesions. Ex. 10 at 25. After the second surgical
intervention on Petitioner’s left shoulder, Petitioner engaged in two further rounds of
physical therapy for an additional 19 physical therapy sessions. Ex. 14 at 17-19, 92-94.
At the start of her final round of physical therapy on October 1, 2019, it was noted that
Petitioner presented for an evaluation of bilateral shoulder pain with dysfunction, noting
that “she thinks the right shoulder pain is due to overuse post surgery.” Ex. 14 at 20.
On December 27, 2019, Petitioner saw her orthopedist for a one year follow-up
appointment to her second surgery in December 2018. Ex. 15 at 1. Her orthopedist noted
she had been released from physical therapy and was “managing mild bilateral biceps
tendinosis” with monthly massages. Id. at 2. The overall function of Petitioner’s shoulder
5 Petitioner underwent four rounds of physical therapy for a total of over 50 physical therapy sessions. See
Ex. 5 at 166-68, 179 – 81, Ex. 14 at 17-19, 92-94.
6 Petitioner received steroid injections on five separate dates over the course of 2018, a total of ten
injections to were administered to treat her shoulder pain. Ex. 7 at 11, 26-27, 39, 43-45, 98.
7 Petitioner underwent an MRI on December 20, 2017, the test was positive for a low-grade partial-
thickness tear of the supraspinatus tendon and mild subacromial bursitis. Ex. 7 at 53.
8 Petitioner underwent her first arthroscopic surgery on April 16, 2018, and her second on December 26,
2018. Ex. 4 at 1, Ex. 10 at 25.
4
was self-rated as 9/10 and she indicated that she was satisfied with the result of her
physical therapy despite still suffering “occasional episodes of pain and stiffness.” Id. at
2-3. Pain was seen again by her orthopedist on January 8, 2021, approximately a year
later, for a two-year post-surgery examination. Ex. 16 at 1.
While it is evident from the medical records that Petitioner had not recovered by
her one-year follow-up examination on December 27, 2019 (over two years after her
vaccination), I find that her SIRVA and related sequela had significantly improved by that
point. She nevertheless continued to suffer pain in both shoulders with certain activities,
and difficulties sleeping, as reported at her two-year follow-up examination over a year
later on January 8, 2021. Ex. 16 at 2. At that time, Petitioner self-rated her overall function
of the left shoulder as 8/10, her left shoulder pain as 1/10, and noted she had been able
to golf. Id. at 3. However, Petitioner was assessed with chronic pain of both shoulders
and it was noted that she had reached maximum medical improvement, and that her “right
shoulder pain was most likely a direct result of having to rely on it following her left
shoulder surgery and throughout the duration of her post-operative recovery.” Id. at 9.
Going forward, it was recommended that she manage her “bilateral shoulder pain with
avoidance of painful activities, activity modification, and NSAIDS as needed.” Id. No
further treatment records have been filed that would document additional treatment.
In making my determination, I have also fully considered Petitioner’s affidavits, that
of her husband, and the statement of a close friend, all of which detail the limitations in
her overall enjoyment of life, physical activities and exercise of daily functions attributable
to her injuries. Exs. 11, 17-19. In particular, Petitioner suffered greatly in her ability to care
for and be active with her young children, including a son who has an autism spectrum
disorder. Her inability to engage in golf at the Special Olympics with him (a joint endeavor
precluding him from participating as well), caused Petitioner considerable pain and
anguish. Ex. 11 ¶ 5, Ex. 17 ¶ 4. Petitioner also explained in her affidavit that she and her
husband were avid sailors, but can no longer engage in this family hobby as a result of
her injury and will have to sell their sailboat. Ex. 17 ¶ 3. Petitioner avers in her affidavit
that she has had to adjust her daily life to a new normal due to the loss of independence
she has suffered as a result of her shoulder injury. Id. at ¶ 7.
Based upon all of the above, Petitioner has demonstrated entitlement to a
substantial award for pain and suffering award, and one higher than what has been
recommended by Respondent. However, the requested $240,000.00 sum is slightly
excessive.
Respondent, by contrast, argues that Petitioner’s case is comparable to two single
surgery cases, and thus the award for pain and suffering should range between the
awards given in those cases - $135,000.00 to $160,000.00. See Reed v. Sec’y of Health
5
& Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019)
(awarding $160,000.00 for actual pain and suffering); and Blanco v. Sec’y of Health &
Hum. Servs., No. 18-1361V, 2020 WL 4523473 (Fed. Cl. Spec. Mstr. July 6, 2020)
(awarding $135,000.00 for actual pain and suffering). These cases present some facts
comparable to the facts of this case, and Reed in particular has relevance, since it also
involved an injury to a mother with a special needs child. However, these cases each
involved only one surgical procedure. I find the past pain and suffering experienced by
Petitioner herein to be more severe, and therefore justifying a higher award.
Petitioner also argues that her case is comparable to another SIRVA decision
involving two surgical procedures, but that her case is more severe. See Schoonover v.
Sec’y of Health & Hum. Servs, No. 16-1324V, 2020 WL 5351341 (Fed. Cl. Spec. Mstr.
Aug. 5, 2020) (awarding $200,000.00 for actual pain and suffering). 9 I agree this case
represents a good comparable, and also find M.W. v. Sec’y of Health & Hum. Servs, No.
18-267V, 2021 WL 3618177 (Fed. Cl. Spec. Mstr. Mar. 17, 2021) (awarding $195,000.00
for actual pain and suffering) another claim involving a second surgical procedure to be
a very good comparable.
Ultimately, an award somewhat higher than that in M.W. is most appropriate.
Petitioner suffered a more severe injury, particularly given that she ultimately experienced
pain in her non-injured arm as a result of overuse following her second shoulder surgery
to treat her SIRVA.
III. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $206,843.76 (representing $200,00.00 in compensation for
her actual pain and suffering, $4,765.20 for unreimbursed expenses, and $2,078.56
for lost wages). 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. 10
9The parties also discussed at oral argument and in their briefs the applicability of Lawson v. Sec’y of
Health & Hum. Servs., No. 18-882V, 2021 WL 688560 (Fed. Cl. Spec. Mstr. Jan. 5, 2021) (awarding
$205,000.00 for actual pain and suffering). However, I find that case, which involved a third surgery, to be
somewhat more severe on balance of all factors than Petitioner’s case.
10 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