Goring v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1458V
Filed: August 23, 2019
UNPUBLISHED
DENISE GORING,
Petitioner,
v. Special Processing Unit (SPU);
Decision Awarding Damages; Pain
SECRETARY OF HEALTH AND and Suffering; Tetanus Diphtheria
HUMAN SERVICES, acellular Pertussis (Tdap) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On November 4, 2016, petitioner 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 left shoulder injury related to a
tetanus, diptheria, acellular pertussis (“Tdap”) vaccination she received on October 19,
2015. 3 Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
3Petitioner received three vaccinations on October 19, 2015: Tdap, shingles, and influenza. Petitioner’s
exhibit (“Ex.”) 1 at 1.
For the reasons described below, the undersigned finds that petitioner is entitled
to an award of damages in the amount $75,200.00, representing compensation in the
amount of $75,000.00 for actual pain and suffering and $200.00 for past
unreimbursable expenses.
I. Relevant Procedural History 4
Petitioner filed a petition for compensation for a shoulder injury related to vaccine
administration (“SIRVA”). (ECF No. 1). Respondent submitted a Rule 4(c) report on
August 10, 2017 asserting that petitioner had not established entitlement to
compensation due to an inadequate onset period for a SIRVA injury, uncertainty of the
vaccination site, and an alternate cause for petitioner’s shoulder injury. (ECF No. 29).
The undersigned held a fact hearing on September 18, 2018 with petitioner as
the sole witness. Goring v. Sec’y of Health & Human Serv., No. 16-1458V, 2018 WL
6539219, *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). The undersigned found that
petitioner’s Tdap and shingles vaccines were administered to her left arm and the onset
of petitioner’s left shoulder injuries occurred within 48 hours of her October 19, 2015
vaccinations. Id at *1. The undersigned further ruled that a lipoma on petitioner’s back
was not a condition that explained her left shoulder symptoms. Id.
On May 6, 2019, the undersigned determined that petitioner was entitled to
compensation since she established that she suffered a shoulder injury caused by a
covered vaccine and respondent did not show that unrelated factors caused her injury.
Ruling on Entitlement at 2 (ECF No 78). On May 7, 2019, the parties were ordered to
discuss the appropriate amount of compensation in this case. (ECF No. 72).
Petitioner filed a joint status report on June 6, 2019 indicating the parties were
unable to agree on the amount of damages. (ECF No. 73). On June 27, 2019, the
undersigned ordered each party to file briefs to be considered in a decision awarding
compensation. (ECF No. 74).
The parties have filed their respective briefs and this case is now ripe for a
determination regarding an award of damages. (ECF Nos. 76, 77).
II. Relevant Medical History
Petitioner received three vaccines on October 19, 2015 including a Tdap vaccine
in her left shoulder. Ex. 1 at 1, Goring, 2018 WL 6539219 at *3. Petitioner’s prior
medical history does not include any mention of left shoulder problems and is not
otherwise relevant to her claim.
4 The undersigned adopts the comprehensive procedural history set forth in the Ruling on Entitlement
issued on May 6, 2019. (ECF No. 78).
2
Although petitioner asserted in an affidavit that she experienced painful
symptoms almost immediately, she was not seen by a medical provider for the pain until
December 22, 2015 when she presented to her primary care physician, Karen Noriega,
M.D. at Mercy Hospital. Ex. 3 at 42. Petitioner complained to Dr. Noriega of left arm
pain after receiving vaccinations two months ago, stating that the “pain is worsening
where she cannot lift her left arm over her head.” Id. Petitioner described an “aching”
pain and rated it at 6 on a pain scale of 1 to 10. Id. at 49. Dr. Noriega examined
petitioner and found she had decreased range of motion (“ROM”) in her left shoulder
and tenderness to deep palpation. Id. at 45. Dr. Noriega diagnosed her with left arm
pain and ordered a CT scan of petitioner’s left shoulder. Id.
On January 19, 2016, petitioner presented to the emergency room (“ER”) at
Mercy Hospital and Medical Center with a chief complaint of left arm pain. Ex. 3 at 278.
She described significant left shoulder pain and limited range of motion that started
when she received a vaccination in October 2015. Id. at 298. It was noted in the record
that she was previously seen for left shoulder symptoms. Id. At the prior visit, a CT
was ordered but not completed due to insurance issues. Id.
On examination at the ER, the internal and external rotation of petitioner’s left
shoulder was noted to be limited due to pain. Ex. 3 at 298. A left shoulder x-ray
revealed only mild degenerative joint changes and a chest CT showed a lipoma on her
back. Id. The examining physician determined that petitioner had “shoulder pain likely
related to rotator cuff pathology, possibly related to large lipoma” and suggested she
continue with pain medications. Id. Petitioner was discharged and directed to follow up
with her primary care physician. Id. at 296.
Petitioner followed up with another physician at Mercy Hospital, Kimberly
Townsend-Scott, M.D., on January 26, 2016, complaining of left shoulder pain. Ex. 3 at
326. Dr. Townsend-Scott reviewed the test results from the ER visit and referred
petitioner to a surgeon for evaluation and possible excision of the lipoma. Id. She
suggested physical therapy (“PT”) if petitioner’s symptoms continued following surgery.
Id. at 332.
On February 2, 2016, petitioner sought treatment from an individual she
described as a “natural doctor” at the Center for Progressive Health. Transcript of Fact
Hearing (“Tr.”) 42. At that visit she reported she could not raise her left arm above
horizontal. Ex. 2 at 4. The provider assessed her as having left rotator cuff syndrome
secondary to the vaccines in the left shoulder. Id. at 3.
In response to Dr. Townsend-Scott’s recommendation, petitioner saw a surgeon,
Andrew Perrott, M.D., on February 18, 2016. Ex. 14 at 3. Dr. Perrott examined her
and concluded that excision of the lipoma was “unlikely to change shoulder problem.”
Id. at 4. Dr. Perrott noted restrictions in petitioner’s left shoulder movements with
abduction limited to 60 degrees. Id. He proposed that rotator cuff syndrome might be
the cause of her discomfort and recommended a referral to either an orthopedist or
physical therapy. Id. Petitioner told him she would like to try physical therapy first and
Dr. Perrott placed the order. Id. at 4, 7.
3
Petitioner reported to physical therapy (“PT”) on March 28, 2016 for an initial
evaluation. Ex. 5 at 54. She rated her pain at a 7/10 and described having pain with
movement. Id. The physical therapist, Shawn White, P.T., assessed her with left
shoulder ROM limitations. Her flexion ROM was limited to “86 degrees with pain” and
her abduction ROM was limited to “60 degrees with pain.” Id. at 55. Mr. White rated
petitioner’s left upper extremity strength as only “fair” and noted she had tenderness
with palpation over the left deltoid insertion and upper trapezius muscle. Id. He noted
she had positive signs on Hawkins and Kennedy impingement tests. Id. In his overall
assessment, Mr. White wrote that petitioner had “difficulty with ADLs and functional
task[s] of reaching, washing hair, pulling and carrying items that are 10 lbs. or more.”
Id. at 56.
Petitioner returned to see Mr. White on April 26, 2016. Ex. 5 at 20. She initially
reported moderate pain, rating it as 5/10. Id. She experienced some pain relief and
increased ROM in her left shoulder flexion and abduction as a result of the session. Id.
at 21. On April 28, 2016, she rated her pain at 1/10 but she denied improvement with
left shoulder ROM. Id. at 22. Mr. White instructed her to perform shoulder exercises
and stretches at home. Id.
On May 3, 2016, petitioner reported decreased pain and improved range of
motion at PT. Ex. 5 at 30. She rated her left shoulder pain at 0/10 on May 5, 2016 and
said she only had pain with strenuous activity. Id. at 32. Petitioner reported on May 10,
2016 that she was “now able to take her coat off without pain in her [left] shoulder”
although Mr. White noted that she had pain during the PT session. Id. at 34. On May
19, 2016, petitioner told Mr. White she had pain above her left clavicle over the
weekend, but it decreased when she rubbed the spot. Id. at 38. Mr. White noted she
also had pain with manual therapy during the session and she seemed to have
increased fluid in her left shoulder compared to previous sessions. Id. at 38. She rated
her pain level at 1/10 when she returned to PT on May 24, 2016 but by June 7, 2016,
she again reported a pain score of 0/10. Id. at 39, 5.
Petitioner attended a total of 12 PT sessions with Mr. White and was discharged
on June 9, 2016. Ex. 5 at 7-57. At the final PT session, petitioner said she was feeling
well with no left shoulder pain. Id. at 7. Her active ROM had improved but was still
limited to 95 degrees in flexion and 93 degrees in abduction. Id. at 8. Mr. White noted
the following in the discharge assessment:
Upon discharge patient is able to perform increased ADLs including ease in
putting on bra, zipping dresses, and donning jackets. Patient has increased
ROM of [left] shoulder compared to initial evaluation in shoulder flexion and
abduction. Patient has decreased pain of 0/10 in [left] shoulder compared
to a 7/10 achy pain in the shoulder during initial evaluation on March 28,
2016. Patient showed a decrease in functional limitations with Shoulder
Pain and Disability Index from 86.9% to 79% upon discharge. Patient is
now [independent] with [home exercise program] and instructed to continue
4
home exercises and stretches to continue to decrease functional
impairment in [left] shoulder.
Id. at 9.
Petitioner mentioned her left shoulder condition at appointments with several
other providers but did not receive treatment. For example, she presented to Universal
City Family Practice on April 18, 2016 to follow up on some unrelated labs. Ex. 7 at 3.
The notes from the visit were handwritten and are difficult to read but there seems to be
a notation about a left shoulder problem. Id. at 4. It appears no treatment was
suggested for the left shoulder. Id.
On November 7, 2016, petitioner was seen by a rheumatologist, Rediet Kokebie,
M.D., for right wrist and right knee pain. Ex. 10 at 1. Petitioner attributed the right wrist
pain to overuse of the right arm to protect the vaccine-injured left shoulder. Dr. Kokebie
did not address the left shoulder condition other than to note petitioner’s account. Id. at
1, 2.
Finally, petitioner sought an evaluation of her left shoulder pain and her back
lipoma from an orthopedist, Ellis Nam, M.D., on March 8, 2018. Ex. 23 at 3. Dr. Nam
noted her history of left shoulder pain after a vaccination and that she had PT for about
three months that helped her pain. Dr. Nam added that she still had some weakness
and loss of range of motion. Id. After examining petitioner, Dr. Nam found her shoulder
area nontender, determined that she had good passive ROM but positive impingement,
and noted a weak rotator cuff. Id. at 4. He assessed her with left shoulder pain, status
post vaccination in October 2015, with a possible cuff tear. He recommended an MRI to
rule out a rotator cuff tear, but she elected not to proceed. Id. at 4.
III. Testimony and Affidavit
Petitioner described her vaccination experience and her subsequent left shoulder
pain and suffering in an affidavit filed in this case. Ex. 15. She also testified at length at
a fact hearing on September 18, 2018 about her attempts to obtain treatment for the left
shoulder injury and her current limitations.
Petitioner recalled in her affidavit that she experienced pain and inflammation
almost immediately after receiving the vaccinations in her left arm. Ex. 15 at 2. She
asked the clinic technician about the pain and was advised it was normal and would
subside in a couple of days. Id. at 2; Tr. 11. She noticed swelling around the injection
site after she left the clinic. Ex. 15 at 2. The pain worsened the following day and she
had difficulty moving her arm. Ex. 15 at 2. She called the clinic and was told it might
take a couple of weeks to resolve. Id. at 2-3.
Petitioner stated in her affidavit that in the week following the vaccinations, she
“could not move [her] left arm nearly at all, and it was basically incapacitated from that
point onward.” Ex. 15 at 3. She called the clinic after two weeks because the pain and
immobility had continued. Id. She was told again that the symptoms should go away.
5
Id. Petitioner testified that she took aspirin and wore an “ion bracelet” and an “impulse
stimulator” to ease the pain that she described as “unbearable.” Tr. 15. She contacted
her primary care physician, Dr. Noriega, but could not schedule an appointment until
late December. Id at 15-16.
When petitioner saw Dr. Noriega on December 22, 2015, she could not lift her
left arm which interfered with dressing and bathing. Tr. 18. Dr. Noriega referred her for
a test, but it was not covered by insurance. Ex. 15 at 3. Petitioner became frustrated
with the pain, sleeplessness, and immobility of her left arm so she went to the
emergency room on January 19, 2016. Ex. 15 at 3-4; Tr. 23. The CT scan showed a
lipoma on petitioner’s back leading to uncertainty regarding her diagnosis and she was
discharged with pain medication and instructions to return if symptoms worsened. Ex.
15 at 4; Tr. 24.
Petitioner testified that she went to the Center for Progressive Health in February
2016 and paid out of pocket because she was determined to find out what was going on
with her left shoulder. Tr. 42. The “natural doctor” at the center told her that she had an
issue with her rotator cuff. Id.
Petitioner’s left arm was still painful with limited functioning when she went to the
PT evaluation on March 28, 2016. Tr. 38. She could not get in the tub, reach her pots
and pans, put on a necklace, or fasten her bra. Tr. 38-39. The PT helped petitioner
with the pain, and she regained use of her arm although she still has limitations. Tr. 45.
Petitioner testified that she purchased an exercise device called the Euro Shaper
in order to exercise at home because she was concerned about going to the gym and
further injuring her shoulder. Tr. 43. She expressed a belief that the device would
assist in healing her shoulder condition but acknowledged that it was not prescribed or
recommended by her physicians. Tr. 43, 68. The date of the purchase was May 23,
2016. Ex. 26 at 2.
Petitioner testified that she sought out Dr. Nam in 2018 to clarify whether the
lipoma was the cause of her symptoms and he told her she had a rotator cuff tear and
should get an MRI. She chose not to get an MRI because the left shoulder pain was
gone, and she wanted to forget about it. Tr. 51.
Petitioner described her experience as pain that she would not wish “on [her]
worst enemy, because it took [her] through hell.” Tr. 53. She also testified that
currently she “can do everything practically that [she] used to” except for reaching for
her pots and pans. Tr. 48-49.
Upon request from the undersigned at the fact hearing, petitioner demonstrated
that the flexion and abduction range of motion of her left arm was limited to 90 degrees
or less. She was unable to reach the back of her bra strap with her left hand. Tr. 80-81.
The undersigned determined at the hearing that petitioner’s testimony was consistent
and credible as to the pain, weakness, and reduced range of motion that she
experienced. Tr. 84.
6
IV. The Parties’ Arguments
Petitioner proposes damages in the amount of $100,000.00 for her actual pain
and suffering and $1,300.00 in unreimburseable expenses including $200.00 for a
medical appointment at the Center for Progressive Health and $1,100.00 for an item of
“rehabilitation exercise equipment.” Memorandum of Law in Support of Petitioner’s
Motion for Finding of Fact Regarding Damages (“Pet. Mem.”) at 4 (ECF No. 76).
Petitioner did not make a claim for lost wages.
In support of the amount suggested for her pain and suffering, petitioner makes
passing reference to the Court’s rulings on damages over the last year but cites no
cases. Pet. Mem. at 5. Petitioner also emphasizes that she continues to experience
“residual deficits in strength, range of motion, and ability with her left arm, as was
visually demonstrated at the fact hearing.” Id.
Respondent argues that petitioner should be awarded $50,000.00 as
compensation for her actual pain and suffering. Respondent’s Brief on Damages (“Res.
Brief”) at 1 (ECF No. 77). To justify this lower amount, respondent emphasizes that
petitioner did not obtain medical care until almost two months after the causal
vaccination, took no pain medications other than aspirin, and was treated with ten PT
sessions after which her left shoulder was significantly improved. 5 Respondent further
asserts that petitioner’s SIRVA was not severe and to the extent that it has not resolved,
is only mildly limiting at present. Res. Brief at 8.
Respondent compares petitioner’s SIRVA to those suffered by petitioners in
Knauss and Crefasi. 6 Res. Brief at 9. He argues the facts in this case are most like
those in Knauss where the petitioner was awarded $60,000.00 for pain and suffering.
Id. Respondent also relies on a syncope case involving a fractured skull, purportedly for
context. 7 Id. at 8-9.
V. 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.” § 15(a)(4). Additionally, 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,
5 Petitioner had 12 sessions of physical therapy. See Ex. 5 at 5-57.
6Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable medical
expenses); Crefasi v. Sec’y of Health & Human Serv., No. 15-166V, 2015 WL 5166283 (Fed. Cl. Spec.
Mstr. Aug. 12, 2015) (awarding $50,000.00 pursuant to proffer).
7 H.S. v. Sec’y of Health & Human Serv., No. 14-1057V, 2015 WL 6155891 (Fed. Cl. Spec. Mstr. Sept.
25, 2015) (awarding $60,000.00 for pain and suffering).
7
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” § 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 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)).
The undersigned may also look to prior pain and suffering awards to aid in her
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, the undersigned may also
rely on her own experience adjudicating similar claims. 8 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).
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. Judge Merrow noted that this constituted “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.
VI. Prior SIRVA Compensation
8From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.
8
A. History of SIRVA Settlement and Proffer 9
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2019, 1,170 SIRVA cases have informally resolved 10 within the SPU since its
inception in July of 2014. Of those cases, 689 resolved via the government’s proffer on
award of compensation, following a prior ruling that petitioner is entitled to
compensation. 11 Additionally, 462 SPU SIRVA cases resolved via stipulated agreement
of the parties without a prior ruling on entitlement.
Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $75,325.00 to $124,442.25. 12 The median award is $96,223.27.
Formerly, these awards were presented by the parties as a total agreed upon dollar
figure without separately listed amounts for expenses, lost wages, or pain and suffering.
Since late 2017, the government’s proffer has included subtotals for each type of
compensation awarded.
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $95,000.00. 13 The median award is $70,000.00. In most instances,
the parties continue to present the stipulated award as a total agreed upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering.
Unlike the proffered awards, which purportedly represent full compensation for all of
petitioner’s damages, stipulated awards also typically represent some degree of
litigative risk negotiated by the parties.
B. Prior Decisions Addressing SIRVA Damages
9 Prior decisions awarding damages, including those resolved by settlement or proffer, are made public
and can be searched on the U.S. Court of Federal Claims website by keyword and/or by special master.
On the court’s main page, click on “Opinions/Orders” to access the database. All figures included in this
order are derived from a review of the decisions awarding damages within the SPU. All decisions
reviewed are, or will be, available publicly. All figures and calculations cited are approximate.
10 Additionally, 36 claims alleging SIRVA have been dismissed within the SPU.
11Additionally, there have been 19 prior cases in which petitioner was found to be entitled to
compensation, but where damages were resolved via a stipulated agreement by the parties rather than
government proffer.
12 Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 19 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $115,772.83. For these awards, the first and third quartiles range from
$90,000.00 to $160,502.39.
13 Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
9
In addition to the extensive history of informal resolution, the undersigned has
also issued 19 reasoned decisions as of the end of May of 2019 addressing the
appropriate amount of compensation in prior SIRVA cases within the SPU. 14
i. Below-median awards limited to past pain and suffering
In 11 prior SPU cases, the undersigned has awarded compensation for pain and
suffering limited to compensation for actual or past pain and suffering that has fallen
below the amount of the median proffer discussed above. These awards for actual pain
and suffering ranged from $60,000.00 to $90,000.00. 15 These cases have all included
injuries with a “good” prognosis, albeit in some instances with some residual pain. All of
these cases had only mild to moderate limitations in range of motion and MRI imaging
likewise showed only evidence of mild to moderate pathologies such as tendinosis,
bursitis, or edema. The duration of injury ranged from six to 29 months and, on
average, these petitioners experienced approximately 14 months of pain.
Significant pain was reported in these cases for up to eight months. However, in
approximately half of the cases, these petitioners subjectively rated their pain as six or
below on a ten-point scale. Petitioners who reported pain in the upper end of the ten-
point scale generally suffered pain at this level for three months or less. Approximately
one-half were administered one to two cortisone injections. Most of these petitioners
14An additional case, Young v. Sec’y of Health & Human Servs., No. 15-1241V, was removed from the
SPU due to the protracted nature of the damages phase of that case. In that case the undersigned
awarded $100,000.00 in compensation for past pain and suffering and $2,293.15 for past unreimbursable
expenses. 2019 WL 664495 (Fed. Cl. Spec. Mstr. Jan. 22, 2019). A separate reasoned ruling addressed
the amount awarded. 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4, 2019).
15These cases are: Bruegging v. Sec’y of Health & Human Servs., No. 17-0261V, 2019 WL 2620957
(Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for actual pain and suffering and $1,163.89 for
actual unreimbursable expenses); Pruett v. Sec’y of Health & Human Servs., No. 17-0561V, 2019 WL
3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awarding $75,000.00 for actual pain and suffering and
$944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health & Human Servs., No. 17-
1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding $75,000.00 for actual pain and
suffering); Weber v. Sec’y of Health & Human Servs., No. 17-0399V, 2019 WL 2521540 (Fed. Cl. Spec.
Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and $1,027.83 for actual
unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs., No. 18-0490V, 2019 WL 2462953
(Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering); Attig v. Sec’y of
Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19, 2019)
(awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct.
18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical
expenses); Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec.
Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable medical
expenses); Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec.
Mstr. May 23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable medical
expenses); Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 2018 WL 2224736 (Fed. Cl. Spec.
Mstr. Mar. 26, 2018) (awarding $75,000.00 for pain and suffering and $88.88 in unreimbursable medical
expenses); Desrosiers v. Sec’y of Health & Human Servs., No. 16-0224V, 2017 WL 5507804 (Fed. Cl.
Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and $336.20 in past
unreimbursable medical expenses).
10
pursued physical therapy for two months or less and none had any surgery. The
petitioners in Weber and Garrett attended PT for five and four months respectively, but
most of the PT in Weber focused on conditions unrelated to the petitioner’s SIRVA.
Several of these cases (Knauss, Marino, Kim, and Dirksen) included a delay in seeking
treatment. These delays ranged from about 42 days in Kim to over six months in
Marino.
ii. Above-median awards limited to past pain and suffering
Additionally, in five prior SPU cases, the undersigned has awarded
compensation limited to past pain and suffering falling above the median proffered
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00. 16 Like
those in the preceding group, prognosis was “good.” However, as compared to those
petitioners receiving a below-median award, these cases were characterized either by a
longer duration of injury or by the need for surgical repair. Four out of five underwent
some form of shoulder surgery while the fifth (Cooper) experienced two full years of
pain and suffering, eight months of which were considered significant, while seeking
extended conservative treatment. On the whole, MRI imaging in these cases also
showed more significant findings. In four out of five cases, MRI imaging showed
possible evidence of partial tearing. 17 No MRI study was performed in the Cooper case.
During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately. Time to first treatment ranged from five days to 43 days. Duration of
physical therapy ranged from one to 24 months and three out of the five had cortisone
injections.
16 These cases are: Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl.
Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for pain and suffering and $4,931.06 in unreimbursable
medical expenses); Knudson v. Sec’y of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed.
Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $305.07 in
unreimbursable medical expenses); Cooper v. Sec’y of Health & Human Servs., No. 16-1387V, 2018 WL
6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $3,642.33
in unreimbursable medical expenses); 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 and
$3,143.80 in unreimbursable medical expenses); Collado v. Sec’y of Health & Human Servs., No. 17-
0225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and
suffering and $772.53 in unreimbursable medical expenses).
17 In Reed, MRI showed edema in the infraspintaus tendon of the right shoulder with a possible tendon
tear and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness
partial tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial
thickness tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and
moderate sized joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a
partial bursal surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild
longitudinally oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and
infraspinatus tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the
posterior-superior-lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site,
and minimal subacromial-subdeltoid bursitis.
11
iii. Awards including compensation for both past and future pain
and suffering
In three prior SPU SIRVA cases, the undersigned has awarded compensation for
both past and future pain and suffering. 18 In two of those cases (Hooper and Binette),
petitioners experienced moderate to severe limitations in range of motion and moderate
to severe pain. The Hooper petitioner underwent surgery while in Binette petitioner was
deemed not a candidate for surgery following an arthrogram. Despite significant
physical therapy (and surgery in Hooper), medical opinion indicated that their disability
would be permanent. In these two cases, petitioners were awarded above-median
awards for actual pain and suffering as well as awards for projected pain and suffering
for the duration of their life expectancies. In the third case (Dhanoa), petitioner’s injury
was less severe than in Hooper or Binette; however, petitioner had been actively
treating just prior to the case becoming ripe for decision and her medical records
reflected that she was still symptomatic despite a good prognosis. The undersigned
awarded an amount below-median for actual pain and suffering, but, in light of the facts
and circumstances of the case, also awarded projected pain and suffering.
VII. Appropriate Compensation in this SIRVA Case
A. Past Pain and Suffering
In this case, awareness of the injury is not in dispute. The record reflects that at
all relevant times petitioner was a competent adult with no impairments that would
impact her awareness of her injury. Therefore, the undersigned’s analysis will focus
principally on the severity and duration of petitioner’s injury.
Petitioner received a vaccine on October 19, 2015 and suffered pain in her left
shoulder that was immediate and severe. Ex. 15 at 2-3. She testified that she tried to
obtain medical attention for the painful symptoms within days and weeks of the
vaccination but was unable to see her primary care physician until two months after the
vaccination. Tr. 12-13. She described how she took measures on her own to obtain
relief from the pain by taking aspirin and wearing an “ion bracelet” and an “impulse
stimulator.” Tr. 15. She testified that the pain “took [her] through hell” and she would
not wish it “on [her] worst enemy.” Tr. 53.
When petitioner’s primary care physician proved unhelpful in diagnosing and
treating her left shoulder, she went to the emergency room to find out what was wrong
18 These cases are: Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed.
Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019)
(awarding $130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years
for projected pain and suffering, and $7,101.98 for past unreimbursable medical expenses); and Hooper
v. Sec’y of Health & Human Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20,
2019) (awarding $185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30
years for projected pain and suffering, $37,921.48 for lost wages).
12
and to obtain relief from the pain. Ex. 15 at 3-4; Ex. 3 at 278, 298. When that effort was
also unsuccessful, she paid out of pocket to see a “natural doctor.” Tr. 42. Finally, she
saw a surgeon who recommended physical therapy which ultimately resolved the pain.
Ex. 14 at 4; Tr. 45.
Petitioner described moderate to severe pain in her left shoulder to her medical
providers from December 2015 through April 2016. She rated her pain as 6/10 to Dr.
Noriega on December 22, 2015 and rated the pain as 7/10 at the PT evaluation on
March 28, 2016. Ex. 3 at 49; Ex. 5 at 54. After several sessions of PT, she rated her
pain as 5/10 on April 26, 2016. Ex. 5 at 55. Subsequently her pain mostly resolved as
a result of PT and home exercise program. She reported pain levels of 0-1/10 at PT in
May and June 2016. Ex. 5 at 10, 41, She testified at the fact hearing on September 18,
2018 that the left shoulder pain had gotten better. Tr. 45.
Petitioner also suffered from ROM restrictions in her left shoulder starting shortly
after the vaccination. Ex. 15 at 3. She testified the restrictions were severe and
interfered with dressing, bathing, and cooking. Tr. 38-39. PT helped with the restricted
ROM but, upon discharge, the physical therapist recommended continued home
exercises and stretches to keep improving. Ex. 5 at 9. At the fact hearing, petitioner
demonstrated that she still could not move her left arm past 90 degrees in flexion and
abduction. Tr. 80-81.
Petitioner’s case is similar to the prior SPU cases with below-median awards for
past pain and suffering. Petitioners in these cases tended to have moderate symptoms
with good results from treatment and did not require surgery. The awards in these
cases ranged from $60,000.00 to $90,000.00. Petitioner’s case is most like the facts
found in Kim. The petitioner in Kim sought treatment 42 days after vaccination, had
three months of significant pain (rated at 7-10/10), and her symptoms mostly resolved
after 11 sessions of PT over several months. She had a good prognosis with some
remaining pain and stiffness. The petitioner in Kim was awarded $75,000.00 in pain
and suffering. 19
Respondent primarily relies on Knauss to support his proposed award of
$50,000.00. However, the petitioner in Knauss was awarded $60,000.00 and he rarely
rated his pain higher than 1/10. 20 He continued swimming and performing yard work
while undergoing treatment and went for extended periods of time without treatment. Id.
This suggests his symptoms were milder and interfered less with his daily activities than
the petitioner in the instant case.
There is preponderant evidence to establish petitioner suffered moderate to
severe symptoms of her SIRVA, including significant pain and limited ROM, for six
months after vaccination. By the end of this period she showed substantial
improvement. She completed PT on June 9, 2016 and was reporting no pain but some
residual limitations in her ROM. Ex. 5 at 9. Although she complained of weakness and
loss of motion in the left shoulder in a medical visit on March 8, 2018, she elected not to
19
Kim, 2018 WL 3991022, at *1-3
20
Knauss, 2018 WL 3432906 at *7-8.
13
undergo treatment for it. Ex. 23 at 4. Her active treatment for the left shoulder
concluded on June 9, 2016, eight months after the vaccination.
Looking at the totality of circumstances, including the severity of petitioner’s initial
pain and suffering and limited ROM, the undersigned finds $75,000 to be an appropriate
amount for petitioner’s pain and suffering.
B. Future Pain and Suffering
Petitioner mentions future pain and suffering in her brief as being compensable
under the Vaccine Act without making a specific request or providing supporting
evidence. Pet. Mem. at 5. Rather, petitioner emphasizes that she continues to
experience residual deficits. She claims to have provided ample evidence of pain and
suffering from the time of onset to the time of the fact hearing. Id.
The record shows that petitioner obtained significant relief from physical therapy.
She has not sought further treatment for her left shoulder since her discharge from PT
other than a consultation in 2018. Ex. 5 at 9; Ex. 23 at 4. At that consult, an MRI was
recommended, but petitioner elected not to proceed because her pain was gone. Id.
The undersigned finds that petitioner has not met her burden of establishing by
preponderant evidence that she is entitled to an award for future pain and suffering.
C. Award for Past Unreimbursed Expenses
Petitioner requests reimbursement for two expenses and provided receipts to
support the request. Pet. Mem. at 4; Ex. 26 at 1-3. The first receipt is for a $200.00
payment to the Center for Progressive Health. Ex. 26 at 1. Petitioner testified at the
fact hearing that she went to the Center for Progressive Health to obtain treatment for
her left shoulder pain. Petitioner has submitted medical records documenting the visit.
Tr. 42; Ex. 2 at 1-4. Respondent confirmed in his damages brief that he has no
objection to this payment. Res. Brief at 10.
Petitioner’s second receipt is for $1,100.00 for an item of exercise equipment
called a Euro Body Shaper. Ex. 26 at 2-3. Petitioner claims in her damages brief that
she purchased the item for the purpose of performing rehabilitation exercises at home
“in order to recover from her injury in a safe environment.” Pet. Mem. at 4. Petitioner
testified at the fact hearing that she bought the item because she could not go to the
gym and exercise out of fear that someone would hit her shoulder. Tr. 43. She also
testified that she believed the device would help her shoulder because it was supposed
to “improve your blood circulation and lymphatic system.” Id. She conceded that she
did not buy it at the recommendation of any of her medical providers. Id. Petitioner did
not provide evidence, other than her own opinion, that the Euro Body Shaper was
special equipment that was “reasonably necessary” for diagnosis, medical treatment, or
rehabilitation of her injured left shoulder as required in § 15(a)(1)(B)(iii).
Considering the above, the undersigned awards $200.00 in past unreimbursed
expenses for the medical visit to the Center for Progressive Health. The undersigned
14
finds that petitioner has not met her burden of establishing by preponderant evidence
that the Euro Body Shaper was reasonably necessary for diagnosis, treatment, or
rehabilitation of her left shoulder.
VIII. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, the undersigned finds that $75,000.00 represents a fair and
appropriate amount of compensation for petitioner’s actual pain and suffering. 21
The undersigned also finds that petitioner is entitled to $200.00 in actual
unreimbursable expenses.
Based on the record as a whole and arguments of the parties, the undersigned
awards petitioner a lump sum payment of $75,200.00 in the form of a check
payable to petitioner, Denise Goring. 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. 22
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
21Since 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 & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health
& Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
22 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.
15