Smith v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1384V
UNPUBLISHED
DAVID SMITH, Chief Special Master Corcoran
Petitioner,
v. Filed: June 29, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 11, 2019, David Smith filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that as a result of an influenza (“flu”) vaccine received
on October 16, 2018, he suffered a shoulder injury related to vaccination (“SIRVA”) as
defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at Preamble. The
case was assigned to the Special Processing Unit of the Office of Special Masters (the
“SPU”).
1
Because this unpublished opinion contains a reasoned explanation for the action in this case, I am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 opinion 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).
Following my ruling on entitlement in Petitioner’s favor in December 2021, the
parties quickly reached an impasse concerning the appropriate award of damages, and
thus have submitted that issue to my final determination. For the following reasons, I find
that Petitioner is entitled to a damages award of $129,207.48 (representing $125,000.00
for past pain and suffering, $3,748.74 for future pain and suffering, and $458.74 for
past unreimbursed expenses).
I. Relevant Procedural History
On December 2, 2021, I found that Petitioner was entitled to compensation for a
Table SIRVA. Entitlement Ruling (ECF No. 31).3 I noted, however, that his evident delay
in seeking medical treatment tended to establish a less severe degree of pain (which
would in turn impact damages to be awarded). Id. at 9 and n. 10. On February 14, 2022,
Petitioner reported that the parties’ respective valuations of damages were too far apart,
and I approved the parties’ proposed schedule to submit any additional evidence and
briefing. Status Report (ECF No. 35); Scheduling Order (Non-PDF).
On March 16, 2022, Petitioner filed a Damages Brief (ECF No. 38), unreimbursed
expenses documentation (Ex. 17), and a supplemental damages affidavit (Ex. 18). On
April 18, 2022, Respondent filed his Response (ECF No. 39). On May 2, 2022, Petitioner
filed a Reply (ECF No. 40). The matter is now ripe for adjudication.
II. Authority
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).
3
My prior summary of the underlying facts and the procedural history as set forth in the Ruling on
Entitlement, are fully incorporated and relied upon herein.
2
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated that 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 (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.
4
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 SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
the petitioner was entitled to compensation. In only 88 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.6
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 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 967 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
5
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.
6
See, e.g., Sakovits v. Sec’y of Health & Hum. 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 Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
rd
3 Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
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 88 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 $94,000.00 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
$1,500.00.8
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 – over six
months in one case. 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 30 months, with most petitioners averaging approximately nine months of pain.
7
Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8
Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. 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. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
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.
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 his
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, declarations, affidavits, and all other filed evidence, 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 that Petitioner should be awarded $458.74 for past
unreimbursed expenses. Brief at 1; Response at 1; see also Ex. 17 (supporting
documentation). Thus, the only area of disagreement concerns the appropriate amount
and scope of compensation for Petitioner’s pain and suffering, past and future.
6
Upon receiving the subject vaccination, Petitioner was 66 years old. Ex. 1 at 1.9
His prior medical history is non-contributory and therefore not included in the parties’
damages briefing. The parties further agree that the treatment course for his SIRVA
included over-the-counter pain medications, one steroid injection, three initial physical
therapy (“PT”) sessions, an MRI, consultations with an orthopedic surgeon, surgical
intervention, and 25 subsequent PT sessions. Brief at 5-9; Response at 2-5.
In requesting $140,000.00 for past pain and suffering, Petitioner characterizes his
initial pain as “severe” and “debilitating.” Brief at 10. He explains that for the first 43 days
of his injury, he delayed medical treatment while attempting to continue serving as the
primary caregiver for his wife, who had been fighting a rare form of cancer for eight years;
maintaining their household; and fulfilling their annual volunteer commitment with
Operation Christmas Child. Id. at 3-4, 12. He also recalls reporting shoulder pain during
the one intervening urgent care encounter for a UTI. Id. at 12-13. He also asserts that his
“severe” and “debilitating” pain persisted without relief for a total of eight months leading
up to his surgery. Id. at 13-14.
Petitioner avers that he is “reasonably comparable” to the petitioner in Reed
(awarded $160,000.00 for past pain and suffering), on the grounds that both suffered pain
without lasting relief “for an extended period” prior to surgery, had ongoing pain and
limitations after surgery. Brief at 15.10 Petitioner allows that his injury “may not be as
severe as Ms. Reed’s injury,” but avers that it was more severe than the petitioner’s injury
in Wilson, whose “not extensive” post-surgical treatment and limitations warranted
$130,000.00 for past pain and suffering. Id. at 15-16.11
Petitioner also requests $2,500.00 per year12 for future pain and suffering based
on his orthopedist’s documentation of permanent post-surgical shoulder limitations, rated
at 10%. Brief at 1, 16-17; Reply at 4-6, n. 2.
9
Petitioner’s Entitlement Brief (ECF No. 30), the Ruling on Entitlement (ECF No. 31), and Petitioner’s
Damages Brief (ECF No. 38) inadvertently state that he was 65 years old upon vaccination.
10
Citing Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr.
Feb. 1, 2019).
Citing Wilson v. Sec’y of Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731, at *5 (Fed. Cl. Spec.
11
Mstr. Mar. 18, 2021).
12
Citing Social Security Administration, Retirement & Survivors’ Benefits: Life Expectancy Calculator,
https://www.ssa.gov/cgi-bin/longevity.cgi (last accessed May 16, 2022) (providing that Petitioner has a life
expectancy of an additional 15.5 years).
7
Respondent offers $101,000.00 for only past pain and suffering, with no future
component. Response at 1. He maintains that the initial absence of documented medical
attention establishes a less severe injury. Brief at 7. Respondent correctly notes that the
urgent care encounter does not document shoulder pain – but he does not address
Petitioner’s explanation for the initial delay, or the severity of his injury in the subsequent
seven months leading up to surgery. Respondent suggests that Petitioner’s course is
comparable to Knudson (awarding $110,000.00 for past pain and suffering), with a “slight
reduction” due to Mr. Smith’s delay in seeking treatment. Response at 8.13
In opposing any award for future pain and suffering, Respondent emphasizes that
Petitioner’s active treatment course ended after his last post-surgical PT session, which
occurred one year and five days after vaccination, on October 21, 2019. Reply at 7-8, n.
2. Thereafter, Petitioner followed up with his orthopedist only once in 2020 and once in
2021, and he has not submitted updated medical records from his primary care provider.
Id. at 8.
Respondent also argues that Petitioner’s permanent shoulder loss of function,
rated at just 10%, is not sufficient to warrant a future award. Response at 9-10, citing to
Curri, (22.5% disability and $550.00 per year)14 and Hooper (50% disability and $1,500.00
per year).15 Petitioner does not respond to this argument in his Reply. Petitioner instead
emphasizes that medical documentation of the permanent injury is highly probative
toward awarding future pain and suffering. Reply at 4-6, citing Curri and Binette (“similar”
disability as in Curri and $1,000.00 per year).16
13
Knudson v. Sec’y of Health & Hum. Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov.
7, 2018).
14
Respondent inadvertently states that in Reed, the special master denied future pain and suffering to the
petitioner because she “claimed a 22.5 percent loss of use of her arm.” Response at 9. Instead in Reed,
the special master denied future pain and suffering because the petitioner “ha[d] not submitted a statement
or medical record from a medical professional” to support her own assertion of permanent injury. 2019 WL
1222925, at *17. The intended citation is most likely to Curri, in which a petitioner whose treating orthopedist
confirmed a permanent ‘scheduled loss of use’ of 22.5% percent” was awarded $550.00 per year. Curri v.
Sec’y of Health & Hum. Servs., No. 17-0432V, 2018 WL 6273562, *6 (Fed. Cl. Spec. Mstr. Oct. 31, 2018).
15
Hooper v. Sec’y of Health & Hum. Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar.
20, 2019).
Binette v. Sec’y of Health & Hum. Servs., No. 17-0432V, 2019 WL 1552620, at *14 (Fed. Cl. Spec. Mstr.
16
March 20, 2019).
8
B. Analysis
A careful review of the medical review supports the determination that after the
October 2018 vaccination, Mr. Smith’s initial shoulder pain was moderate. I do not find
sufficient evidence to accept or reject that Petitioner reported his shoulder pain during the
urgent care encounter 36 days after vaccination.17 Petitioner acknowledges that at the
time, his UTI symptoms were “more urgent”18 and that he waited another six days for an
appointment to address his shoulder. Brief at 13. Petitioner also explains that he first
attempted to manage his pain while attending to his wife’s longstanding cancer,19
household responsibilities, and an annual volunteer commitment.20 But the available
evidence suggests that his pain was initially manageable, then progressed to the point of
warranting focused medical attention and a steroid injection 42 days after vaccination.
Ex. 2 at 43-45.
The subsequent history is consistent with a fairly moderate SIRVA injury. One
month later, his shoulder was “definitely better” but featured “sharp pains with reaching
out or doing certain things.” Ex. 2 at 30-32. At the first of three PT sessions, he was
assessed to have between 1 – 20% impairment. Ex. 7 at 103. Petitioner expressed
concern that further steroid injections would exacerbate a preexisting eye condition. He
continued to take over-the-counter medications for pain rated at 8/10, and disrupted
sleep. Ex. 3 at 5-7. Eight months after vaccination, in June 2019, Petitioner underwent a
left shoulder arthroscopy with extensive intraarticular debridement, capsular release, and
subacromial decompression. The post-operative diagnosis was adhesive capsulitis with
subacromial impingement. Ex. 3 at 4-5; Ex. 5 at 7-8.
After surgery, Mr. Smith made steady improvement, to the point that he could
perform most activities of daily living without pain. After 25 post-operative PT sessions,
Petitioner still had ongoing pain which disrupted his sleep. He slept in a recliner chair and
17
Ex. 18 at ¶¶ 5-6; see also Ex. 2 at 68 (urgent care records documenting (“UTI”) treated by antibiotic, but
not left shoulder pain or the antibiotic administration site).
18
The medical record provides that Petitioner had fever, gastrointestinal issues, dehydration, some
stomach “rumbling,” no stomach pain, and “some dysuria and urinary urgency.” Ex. 2 at 66-69. Petitioner
also recalls being so ill that he had difficulty walking into the urgent care clinic. Ex. 18 at ¶ 4. However, I do
not see sufficient evidence to support Petitioner’s characterization that he was in “terrible pain” from the
UTI. Brief at 13.
19
See Exs. 12-14 (original affidavits referencing his wife’s cancer diagnosis in 2010 and “many” subsequent
cancer treatments); Ex. 18 at ¶¶ 1-4, 11 (Petitioner’s supplemental affidavit describing his responsibilities,
including driving his wife to oncology appointments 170 miles away from their home).
20
I recognize the recollections that during the volunteer shift, Petitioner modified his role and only performed
paperwork. Ex. 12 at ¶ 5; Ex. 15 at ¶ 1. Petitioner is noted to be right-handed. Ex. 7 at 1.
9
required Percocet to sleep on “some” nights. Ex. 9 at 24; Ex. 18 at ¶ 8. The orthopedist
endorsed that Petitioner would “always have a little bit of stiffness and weakness in the
shoulder as a result of the shoulder injury related to vaccine administration,” specifically
loss of “about 10% of motion to forward flexion, external rotation, and internal rotation,”
which warranted an ongoing home exercise program. Ex. 10 at 2 (October 2019); see
also Ex. 11 at 1-2 (similar assessments in July 2020 and April 2021); Ex. 18 at ¶ 13 (March
2022 affidavit). Now, approximately four and one-half years after vaccination, Petitioner’s
primary complaint is an inability to externally rotate his left arm to place under his pillow
in bed, while sleeping on his left side, which disrupts his sleep and causes fatigue during
the day. Ex. 11 at 2. However, there is no evidence of ongoing formal treatment or
prescription pain medication. See also Ex. 18 at ¶¶ 7-8.
Respondent’s comparison to Knudson is inapt. In that case, the special master
highlighted the facts that medication, physical therapy, and time were effective – to the
point that the petitioner’s shoulder pain had improved “by about 95%” six months into the
course. Knudson, 2018 WL 6293381, at *8. Ms. Knudson improved even further after
surgery and was deemed recovered and pain-free by ten months after vaccination. Id. at
*9. Because Ms. Knudson’s injury was demonstrably more severe, the sum awarded
therein is a bit too low for this case.
Petitioner’s citation to Wilson is more persuasive, primarily because that
petitioner’s condition progressed and did not achieve meaningful relief until after surgery.
Wilson, 2021 WL 1530731, at *3. Ms. Wilson’s first documented medical attention was
also comparably delayed - 32 days after vaccination, compared to 42 days after
vaccination in the present case. However, Mr. Smith also underwent a steroid injection
and a greater number of PT sessions. I also recognize that the injury complicated Mr.
Smith’s ability to drive his wife to specialized cancer treatments and to maintain their
home. Overall, I find that $125,000.00 is an appropriate award for Mr. Smith’s past
pain and suffering.21
21
Petitioner also cites to Reed while simultaneously acknowledging that his own injury “may not be as
severe.” Brief at 16. Indeed, many cases lack the unique facts recognized by the special master in Reed –
including a failed surgery, long-term reliance on prescription pain medication and pain counseling, and
specific personal circumstances that made her physical limitations more disruptive. See e, g., Stoliker v.
Sec’y of Health & Hum. Servs., No. 17-0990V, 2020 WL 5512534, *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2020);
Rafferty v. Sec’y of Health & Hum. Servs., No. 17-1906V, 2020 WL 3495956, *17 (Fed. Cl. Spec. Mstr. May
21, 2020); Gunter v. Sec’y of Health & Hum. Servs., No. 17-1941V, 2020 WL 6622141 (Fed. Cl. Spec. Mstr.
Oct. 13, 2020); Wilson, 2021 WL 1530731 at *5. I again “emphasize that Reed’s applicability is limited and
there are numerous other opinions which may offer more relevant guidance as to the appropriate quantum
of damages.” Schmitt v. Sec’y of Health & Hum. Servs., No. 19-0021V, 2021 WL 4470101, n. 8 (Fed. Cl.
Spec. Mstr. Aug. 30, 2021).
10
There are very few reasoned decisions addressing future pain and suffering.
Petitioner has, however, justified his request for this component, primarily because his
treating orthopedist has diagnosed him with a permanent post-surgical disability resulting
from the vaccine injury. Accord Curri, 2018 WL 6273562 at *2; Binette, 2019 1552620 at
*14; Hooper, 2019 WL 1561519 at *9-10. Here, orthopedist documented that Mr. Smith’s
left shoulder continues to have limited forward flexion, internal rotation, and external
rotation, resulting in a 10% disability, and has maintained this assessment despite the
gaps between their appointments.
The orthopedic records and Petitioner’s affidavit also explain that this disability
primarily impedes a particular sleep position, which causes daily fatigue. It does not
equate to the level of disability and personal impacts seen in Hooper or Binette – and
certainly not Mr. Smith’s even higher request of $2,500.00 per year. Rather, his disability
is more similar to that in Dawson-Savard, in which the injured petitioner – who
experienced permanently-decreased range of motion and continued pain but remained
able to perform all physical requirements of her job as a registered nurse – was awarded
$500.00 per year in future pain and suffering.22 Mr. Smith’s disability is also similar to that
in Danielson, in which the injured petitioner – who exhausted treatment options and
periodically reported pain with movement – was awarded $250.00 per year.23
Here, I will award compensation for Petitioner’s future pain and suffering,
but at a lower amount of $250.00 per year, for his expected life expectancy of
approximately 16 years,24 for an initial total of $4,000.00. When reduced to present
value, utilizing the multi-pronged approach I have employed in prior cases, the final
total is $3,748.74.25
Dawson-Savard v. Sec’y of Health & Human Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec.
22
Mstr. July. 14, 2020).
23
Danielson v. Sec’y of Health & Human Servs., 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020).
24
Using the life expectancy calculator found on the Social Security Administration's website, Petitioner is
expected to live another 15.5 years. https://www.ssa.gov/cgibin/longevity.cgi (last visited June 10, 2022).
25
A one percent discount rate is used for the first fifteen years, with a two percent discount rate used for
any additional years. Curri, 2018 WL 6273562, at *7. As in Curri, an online present value calculator was
used to perform the appropriate calculations. 2018 WL 6273562, at *7, n. 4; see also
https://financialcalculators.com/present-value-of-an-annuity-calculator (compounding annually) (last visited
June 10, 2022). Utilizing a one percent discount rate for years 1 through 15, the total of $3,750.00 ($250
multiplied by 15) is reduced to a net present value of $3,499.01. Utilizing a two percent discount rate for
year 16, the total amount of $8,250.00 ($250 multiplied by 1) is reduced to a net present value of $249.73.
11
V. Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $129,207.48 (representing $125,000.00 for past pain and
suffering, $3,748.74 for future pain and suffering, and $458.74 for past
unreimbursed expenses). 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.26
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
26
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