Bergstrom v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0784V
UNPUBLISHED
LINDA BERGSTROM, Chief Special Master Corcoran
Petitioner, Filed: November 2, 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)
Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On May 28, 2019, Linda Bergstrom 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 left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”)
vaccine on January 29, 2018. Petition at 1, ¶¶ 1, 20. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $81,115.32, representing compensation in the amount of
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
$80,000.00 for actual pain and suffering, and $1,115.32 for past unreimbursable
expenses.
I. Relevant Procedural History
Respondent initially opposed compensation in this case based on his belief that
Petitioner had failed to establish the onset required for a Table SIRVA, within 48 hours of
vaccination. Rule 4(c) Report, filed Sept. 15, 2020, at 5, ECF No. 20; see 42 C.F.R. §
100.3(a) XIV.B. (2017) (Table entry for SIRVA); 42 C.F.R. § 100.3(c)(10(ii) (Qualifications
and Aids to Interpretation (“QAI”) regarding timing of pain). After I issued a fact ruling,
finding that the onset of Petitioner’s SIRVA occurred within 24 hours of vaccination,
Respondent filed an amended Rule 4(c) Report indicating that he would no longer contest
entitlement. ECF No. 24; see Fact Ruling, issued Dec. 4, 2020, ECF No. 22. For
approximately seven months, the parties attempted to informally resolve the issue of
damages in this case. See, e.g., Status Report, filed June 1, 2021, ECF No. 34.
On August 17, 2021, the parties informed me that they had reached an impasse in
their damages discussions and “d[id] not believe that additional negotiations will result in
an agreement on damages.” Status Report at 1, ECF No. 36. They proposed consecutive
briefing dates. Id. The parties filed their briefs as proposed, and Petitioner filed
documentation related to her out-of-pocket expenses. ECF Nos. 38-40. The matter is now
ripe for adjudication.
II. 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,
2
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.3 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).
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 Merow 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. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). Judge Merow 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.” Id. at 590. Instead, Judge Merow
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.
3
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, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
3
III. Prior SIRVA Compensation Within SPU4
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2021, 2,097 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 2,036 of these cases, with the remaining 61
cases dismissed.
Of the compensated cases, 1,187 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 69 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.5
1,092 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 26 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 insight 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, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 849 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
4
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.
5
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).
4
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 Proffered Stipulated Stipulated6
Decisions by Damages Damages Agreement
Special Master
Total Cases 69 1,092 26 849
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $75,000.00 $70,000.00 $90,000.00 $45,000.00
Median $97,500.00 $90,350.00 $115,214.49 $65,000.00
rd
3 Quartile $125,360.00 $119,502.79 $158,264.36 $90,000.00
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 69 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $95,500.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,000.00.7
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 range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 29 months, with petitioners averaging approximately nine months of pain.
6
Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7
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).
5
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 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four 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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
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.
In performing this analysis, I have reviewed the record as a whole, including all
medical records and affidavits filed, plus the parties’ briefs and other pleadings. I also
have taken into account 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 ultimate determination on the specific circumstances of this case.
A. The Parties’ Arguments
The parties agree Petitioner should be awarded $1,115.32 for her unreimbursed
medical expenses. Petitioner’s Damages Brief (“Brief”) at 16-17, ECF No. 39;
Respondent’s Damages Brief (“Opp.”) at 8; ECF No. 40. Thus, the only area of
disagreement is regarding the amount of compensation which should be awarded for
Petitioner’s pain and suffering.
Emphasizing “the severity, duration, and chronic nature of her shoulder injury,”
Petitioner requests $110,000.00 for past pain and suffering, plus an annual award of
$1,000.00 for future pain and suffering. Brief at 12. Asserting that the sequela of her
SIRVA has spanned more than three and one-half years, Petitioner maintains that she
6
suffered moderate to severe levels of pain for fourteen months, and at least mild pain all
other times. Id. at 10-11. Regarding her more than three-month delay before seeking
treatment for her symptoms, Petitioner “describes herself as someone who typically
avoids going to the doctor for as long as possible.” Id. at 10. She also emphasizes her
lack of knowledge regarding this type of injury, which she indicates was reinforced by the
pharmacist’s statement that he was unaware of this type of injury, and the lack of available
appointments with her primary care provider (“PCP”). Id.To support the amount she seeks for future pain and suffering, Petitioner reiterates
her orthopedist’s warning that the number of cortisone injections he can safely administer
to Petitioner are limited – suggesting that the relief they have provided in the past will
cease being available to her in the future. Brief at 11. She also maintains that her
orthopedist “has told her that the recurrent nature of her symptoms leads him to believe
that she has a tendon tear . . . that is unlikely to permanently resolve without surgery.” Id.
at 12.
Petitioner compares the facts and circumstances in her case favorably with those
experienced by the petitioners in Young, Binette, Danielson, Cooper, and Bruegging, who
received awards ranging from $90,000.00 to $130,000.00 for past pain and suffering.8
Brief at 12-16. Additionally, the petitioners in Binette and Danielson also received a future
award, representing the net present value of yearly awards of $1,000.00 and $250.00,
respectively. Binette, 2019 WL 1552620, at *1; Danielson, 2020 WL 8271642, at *1.
Characterizing Petitioner’s injury as comparatively minor, requiring only
conservative treatment, Respondent argues that Petitioner should receive the lesser sum
of $55,000.00 for her pain and suffering. Opp. at 6. He asserts that the severity of
Petitioner’s pain and course of treatment is comparable to that experienced by the
petitioners in Knauss and Rayborn, who received awards ranging from $55,000.00 to
$60,000.00.9 Opp. at 6-7. Regarding the cases cited by Petitioner, he maintains that
8
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 past pain and suffering and an amount representing the net present
value of $1,000.00 per year for future pain and suffering); Danielson v. Sec’y Health & Human Servs., No.
18-1486V, 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020) (awarding $110,000.00 for past pain
and suffering and an amount representing the net present value of $250.00 per year for future pain and
suffering); Cooper v. Sec’y Health & Human Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr.
Nov. 7, 2018) (awarding $110,000.00 for past pain and suffering and denying any award for future pain and
suffering); Young v. Sec’y of Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl. Spec. Mstr.
Jan. 4, 2019) (awarding $100,000.00 for past pain and suffering); 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
past pain and suffering).
9
Knauss v. Sec’y Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23,
2018) (awarding $60,000.00 for past pain and suffering); Rayborn v. Sec’y Health & Human Servs., No. 18-
0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug. 14, 2020) (awarding $55,000.00 for past pain and
suffering).
7
“these cases are inapposite because the petitioners received treatment for longer periods
of time.” Opp. at 7.
B. Analysis
1. Duration and Severity of SIRVA Injury
A thorough review of the medical records reveals that Ms. Bergstrom suffered
severe pain and limited ROM for approximately five months post-vaccination, obtained
almost six months of significant relief following a cortisone injection in early July 2018,
and then experienced more moderate levels of pain and a mild limitation in ROM for
approximately one month before receiving a second cortisone injection in late January
2019. After this second injection, Petitioner did not seek treatment again until more than
two years later, in early February 2021. Although she attributes this later pain to her same
SIRVA injury, she has not provided sufficient evidence to support this assertion.
i. Initial Five Month Period: Vaccination Through Mid-July 2018
Prior to receiving the flu vaccine on January 29, 2018, Petitioner, age 69, suffered
from hip and knee pain, right trigger thumb, and carpal tunnel syndrome. Exhibit 7 at 7-8.
When seeking treatment for her left shoulder pain, on May 16, 2018, she complained of
significant left shoulder pain, which was not alleviated by over-the-counter pain
medication, interfered with her sleep and other daily activities, and caused a painful and
limited ROM. Exhibit 2 at 7, 9. Although the more than 100-day gap between vaccination
and this first appointment did not prevent me from finding pain onset within 24 hours as
Petitioner alleged, especially given the support found in the records for her reluctance to
seek medical treatment,10 the lengthy delay does provide evidence that her pain was
manageable for a long period of time, but eventually progressed into something more
severe that she felt demanded treatment.
At her first orthopedic appointment on June 7, 2018, Petitioner provided additional
information which confirms the existence of a significant SIRVA injury, involving
increasing levels of pain and limitations in ROM. She described pain beginning a day after
her vaccination, but progressively worsening until reaching the current level of nine to ten
out of ten, adding that it woke her every two hours. Exhibit 2 at 9. Although the orthopedist
opined Petitioner “most likely ha[d] some wear and tear of the [rotator] cuff which
predate[d] the shot,” he concluded that her condition was an inflammatory response to
the flu vaccine. Id. at 10. He prescribed oral steroids and PT. Id. at 10.
10
Fact Ruling, issued Dec. 4, 2020, at 5, ECF No. 22.
8
Petitioner’s assertions are supported further by her PT records. At her initial PT
session on June 13, 2018, Petitioner reported pain when she moved her arm, describing
its level as five out of ten at rest and seven out of ten with activity. Exhibit 3 at 2. After
attending seven sessions during the month of June, Petitioner’s ROM and level of pain at
rest had improved, but her pain with activity had increased to ten out of ten. Id. at 13.
When seen by her orthopedist on July 9, 2018, Petitioner continued to report
severe pain, at a level of eight to nine. She indicated that she had obtained no relief from
the oral steroids she was prescribed. Exhibit 2 at 7. The orthopedist observed that
Petitioner’s motion was improving but that “she is still having a lot of pain.” Id. He
administered a cortisone injection and instructed Petitioner to continue her PT. Id. at 7-8.
Through the end of August 2018, Petitioner attended an additional fourteen PT sessions.
Exhibit 3 at 19-50.
ii. Relief for Six Months: Mid-July Through End of 2018
It appears Petitioner obtained significant relief from the cortisone injection
administered in early July 2018 and subsequent PT. At an orthopedic appointment on
August 13, 2018, she indicated that the injection had “helped dramatically,” that “her
motion [wa]s much improved,” and that the PT she was attending “has been very helpful.”
Exhibit 2 at 5. She reported having no symptoms until the last day or two when she noticed
“some discomfort around the shoulder.” Id. The orthopedist remarked that Petitioner
described almost no symptoms at rest but still rated her discomfort as four at rest and five
with activity. Id. Presumably, the level four descriptor was for the infrequent occasions
when she experienced pain at rest. At her last PT session on August 30, 2018, Petitioner
was described as “show[ing] great motivation and improvement.” Exhibit 3 at 49. She
reported improved function with mild pain only during end of range activities. It was noted
that Petitioner had met all PT goals. Id.iii. Return of Pain for One Month: January 2019
When Petitioner next sought treatment, from her orthopedist on January 24, 2019,
she reported that “[s]he had no symptoms in the left shoulder until about three weeks
ago.” Exhibit 5 at 2. She rated her current pain, which was again interfering with her ability
to sleep, as five at rest and seven with activity. Although Petitioner exhibited good ROM,
the orthopedist recommended that she attend PT to “work on her cuff strength and
stabilize her scapular.” Id. Petitioner declined PT but opted for a second cortisone
injection. Id.
9iv. Assertion of Later Pain
Petitioner did not seek treatment again until more than two years later, on
February 2, 2021. Exhibit 8 at 6-7. At that visit, she reported that the January 2019
cortisone injection had “helped dramatically,” and that “for at least nine months . . . the
pain went away, and the motion improved.” Id. at 6. Rating the level of her current pain
as six to eight at rest and seven with activities, Petitioner described it as progressively
worsening over the last six to nine months. Id.The orthopedist opined that Petitioner “probably has a partial tear of the tendon.”
Exhibit 8 at 6. He proposed an MRI, which Petitioner declined. Id. at 6-7. Instead,
Petitioner requested a third steroid injection which was administered. Because of
petitioner’s reluctance to attend PT during the COVID pandemic, the orthopedist provided
her with exercises to be performed at home. There is no evidence of further treatment.
Although Petitioner attributes this later pain to the SIRVA injury she suffered in
January 2018, she has failed to provide preponderant evidence to support that assertion.
Petitioner’s February 2021 visit occurred more than two years after her last treatment in
late January 2019. Such a lengthy treatment gap inherently suggests a manageable
condition – and I have in many prior cases found that long gaps are unsupportive of high
pain and suffering awards. See, e.g., Norton v. Sec’y of Health & Human Servs., No. 19-
1432V, 2021 WL 4805231, at *5-6 (Fed. Cl. Spec. Mstr. Sept. 14, 2021).
In addition, I must take some note of the fact that the 2021 visit occurred
approximately one month after entitlement was conceded in this case and the parties
began their damages discussions. And Petitioner’s claim that she did not seek treatment
for her shoulder pain due to the COVID-19 pandemic (Brief at 7) fails to account for the
five months in late 2019 and early 2020 when she alleges her left shoulder pain had
returned.11 See Exhibit 8 at 6 (containing Petitioner’s description of the return of her left
shoulder pain).
Arguably, Petitioner could maintain that her pain returned in late 2019, but was not
significant until 2020 - after the COVID pandemic was fully recognized. And the February
2, 2021 medical record contains evidence to support that characterization. See Exhibit 8
at 6 (indicating Petitioner’s pain had worsened six to nine months ago – in late April to
July 2020). However, that depiction reveals a different weakness in Petitioner’s
assertions. Vaccine Act cases involving SIRVA claims often reveal that when only
11
According to information on the CDC website, the World Health Organization declared COVID-19 a
pandemic on March 11, 2020. See
https://www.cdc.gov/museum/timeline/covid19.html#:~:text=January%2020%2C%202020%20CDC,18%2
0in%20Washington%20state (last visited Oct. 25, 2021).
10
temporary relief is gained by the administration of a cortisone injection, a petitioner’s
shoulder pain will inevitably return within one to six months post-injection. In this case,
however, Petitioner appears to argue that the effects of her second cortisone injections
lasted at least until April 2020, more that 14 months after injection.
It is more likely that Petitioner’s later pain is due to the rotator cuff tear, which her
orthopedist suspects she has,12 or other conditions which existed prior to vaccination. In
my experience, SIRVA injuries, especially those occurring in older individuals like Ms.
Bergstrom, often involve the aggravation of preexisting conditions, previously
asymptomatic. And Petitioner’s orthopedist opined that Petitioner’s SIRVA injury occurred
in this manner. Exhibit 2 at 10. Petitioner has not provided preponderant evidence
connecting the shoulder pain she complained of in February 2021, to the flu vaccine she
received in January 2018.
2. Comparison to Other Awards
Although I commend the parties for identifying cases involving facts and
circumstances they believe are similar to those suffered by Petitioner, I do not find those
cases to be comparable. The cases cited by Petitioner involved symptoms of greater
severity and duration than those suffered by Ms. Bergstrom. For example, the periods of
significant pain and overall symptoms suffered by the Cooper petitioner were almost twice
the duration. Cooper, 2018 WL 6288181, at *12. And the petitioners in both Binette and
Danielson provided evidence of a permanent injury. Binette, 2019 WL 1552620, at *14-
15; Danielson, 2020 WL 8271642, at *5. In contrast, the cases provided by Respondent
involved a similar overall duration but no period of significant pain. In Knauss, for example,
the petitioner reported pain at a level of only one out of ten. Knauss, 2018 WL 3432906,
at *3.
Petitioner shares some similarities with the petitioner in Bruegging, who received
an award of $90,000.00 for past pain and suffering. The Bruegging petitioner also suffered
severe initial pain which abated after a second injection and PT and sequela which lasted
ten months. Bruegging, 2019 WL 2620957, at *10. However, the Bruegging petitioner
obtained only one week of relief after his first cortisone injection, and thus experienced
greater levels of pain for a longer initial period – eight months instead of the five months
experienced by Petitioner. Id. Furthermore, the Bruegging petitioner sought medical
treatment for his shoulder pain 24 days post-vaccination. Id. at *9. Although Petitioner’s
more than 100-day delay did not prevent a finding of onset within 48 hours, it does provide
evidence that her initial pain was not as great as that experienced by the petitioner in
Bruegging.
12
Because Petitioner declined the offered MRI, her orthopedist was unable to obtain confirmation for his
belief. See Exhibit 8 at 7.
11
I find that the Petitioner’s injury was more like SIRVAs suffered by petitioners who
received awards of $80,000.00 for past pain and suffering. For example, in Kent, the
petitioner first sought treatment for her shoulder pain 94 days post-vaccination,
experienced severe levels of pain for approximately six months and gained relief after
conservative treatment. Kent v. Sec’y of Health & Human Servs., No. 17-0073V, 2019
WL 2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019). This establishes a fair amount
to be awarded for actual pain and suffering in this case.
I do not, however, include any component of damages for future pain and suffering.
As I stated in Accetta, I find that an award for future pain and suffering is appropriate “only
for cases where a strong showing is made that the claimant has suffered a permanent
disability, or there are other extenuating circumstances that justify inclusion of a future
component.” Accetta v. Sec’y of Health & Human Servs., No. 17-1731V, 2021 WL
1718202, at *5 (Fed. Cl. Spec. Mstr. Mar. 31, 2021). In this case, Petitioner has not
established that the sequela of her SIRVA continued beyond early 2019.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $80,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.13 I also find that Petitioner
is entitled to $1,115.32 in actual unreimbursable expenses.
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $81,115.32 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.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 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)).
14
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.
12