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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1727V
UNPUBLISHED
TODD L. FRIBERG, Chief Special Master Corcoran
Petitioner, Filed: July 6, 2022
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)
Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On November 6, 2019, Todd L. Friberg 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 the Table claim that he suffered a shoulder injury related
to vaccine administration (“SIRVA”) after receiving the influenza vaccine on October 18,
2018. Petition at 1, ¶¶ 2, 20. The case was assigned to the Special Processing Unit of
the Office of Special Masters (the “SPU”). Although a ruling on entitlement in Petitioner’s
favor was issued in June 2021, the parties have been unable to resolve damages on their
own.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $125,102.92, representing $117,000.00 for actual pain and
suffering and $8,102.92 for past lost wages.
I. Relevant Procedural History
The day after he filed his petition, Mr. Friberg filed the medical records and affidavit
required under the Vaccine Act. Exhibits 1-5, filed Nov. 7, 2019, ECF No. 5; see Section
11(c). On November 13, 2019, the case was activated and assigned to the SPU (OSM’s
adjudicatory system for attempting to resolve cases deemed likely to settle). ECF No. 8.
At Respondent’s request, Petitioner filed additional documentation clarifying
information provided in the vaccine record. Exhibit 6, filed June 19, 2020, ECF No. 15. By
March 2021, Petitioner had conveyed a demand and additional supporting documentation
to Respondent. ECF No. 29.
On June 23, 2021, Respondent filed his Rule 4(c) Report conceding Petitioner was
entitled to compensation, and I issued a Ruling on Entitlement two days later. ECF Nos.
34-35. For approximately eight months thereafter, the parties attempted to informally
resolve the issue of damages. See, e.g., Status Report, filed Nov. 1, 2021, ECF No. 41.
On February 22, 2022, they informed me they had reached an impasse in their damages
discussions. ECF No. 45.
During the subsequent two-month period, the parties filed their damages briefs,
and Petitioner filed supplemental affidavits from his wife and himself. Exhibits 8-9, ECF
No. 47; Petitioner’s Damages Brief (“Brief”), ECF No. 48; Respondent’s Brief on Damages
(“Opp.”), ECF No. 50. On May 2, 2022, Petitioner filed a reply brief. Petitioner’s Reply in
Further Support of Damages (“Reply”), ECF No. 51. 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 &
2
Hum. 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 & Hum. 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 & Hum. 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 & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
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 & Hum. 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 & Hum. 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 & Hum. 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
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
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.
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, 2022, 2,723 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 2,651 of these cases, with the remaining 72
cases dismissed.
Of the compensated cases, 1,513 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 114 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
1,371 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 1,138 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
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 & 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
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
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 114 1,371 28 1,138
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $72,354.81 $67,472.00 $90,000.00 $40,000.00
Median $102,479.12 $86,927.85 $122,886.42 $60,000.00
rd
3 Quartile $125,343.45 $115,000.00 $161,001.79 $115,000.00
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 114 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 $100,000.00 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 $1,500.00.7
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 – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most 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”). Only one required surgery. Except in
6 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7Additionally, 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
one case with an award for pain and suffering slightly below the median amount, the
duration of the SIRVA injury ranged from six to 30 months, with most petitioners averaging
approximately nine months of pain. 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 133 PT sessions, a PT duration of more than
three years, and multiple cortisone injections, were 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. The Parties’ Arguments
The parties agree Petitioner should be awarded $8,102.92 for past unreimbursed
lost wages. Brief at 5 n.1; Opp. at 1-2, 2 n.1, 8. Thus, the only area of disagreement is
the amount of compensation which should be awarded for Petitioner’s pain and suffering.
Petitioner seeks $150,000.00 for his pain and suffering, and Respondent argues for an
award of $70,000.00. Brief at 15; Opp. at 1, 8; Reply at 1, 8.
The parties’ primary disagreement involves the duration of Petitioner’s SIRVA
injury. Although he acknowledges significant improvement following his arthroscopic
surgery and post-surgical PT, Petitioner maintains that his shoulder condition worsened
over time. Brief at 7-9; Reply at 4-5. He insists that he continues to experience pain and
limitations related to his SIRVA injury, more than three years post-vaccination. In contrast,
Respondent argues that Petitioner’s SIRVA injury lasted less than a year. Opp. at 7.
Emphasizing the improvement reported at Petitioner’s last post-surgical PT session -
approximately eleven months post-vaccination - he contends that Petitioner has failed to
provide the preponderant evidence needed to connect his later shoulder pain to his 2018
SIRVA injury. Id. at 6 n.5.
Although the parties agree that Petitioner initially sought treatment for his left
shoulder pain approximately 32 days post-vaccination, they characterize this timing
differently. Respondent argues it shows “symptomology that was not significant enough
to prompt treatment until thirty-two days after vaccination.” Opp. at 6. Petitioner maintains
that it “is an appropriate amount of time and does not suggest that [his] injury was mild.”
6
Reply at 7-8.
Similarly, the parties deviate in their views regarding the persuasive weight allotted
specific information contained in the medical records. Petitioner insists that he did not
provide the statements showing significant improvement at his last PT session in early
September 2019, and thus, disputes their accuracy. Brief at 3; Reply at 4 n.2; Exhibit 8 at
¶¶ 4-5 (Petitioner’s affidavit); Exhibit 9 at ¶ 4 (Petitioner’s wife’s affidavit). Respondent
stresses that the statements linking Petitioner’s later pain to his SIRVA injury which
appear in the report of a second MRI - performed in September 2021, appear to have
been provided by Petitioner at a time when the parties were discussing the damages to
be awarded in the case. Opp. at 5 nn.2-3. Thus, he maintains they should not be afforded
the persuasive weight usually given to contemporaneously created medical records.
When arguing for the greater pain and suffering award he seeks, Petitioner
compares the facts and circumstances in his case favorably with the experiences of the
petitioners in Reed and Tumolo, who received $160,000.00 and $170,000.00,
respectively, for their past pain and suffering.8 Brief at 11-15. Claiming that a comparison
of the amounts awarded in Reed and Tumolo illustrates that a $10,000.00 difference was
deemed appropriate to reflect the younger age and longer duration found in Tumolo,
Petitioner urges me to apply a similar deduction to the $160,000.00 awarded in Reed to
reflect Petitioner’s greater age – resulting in an award of $150,000.00. Id. at 13-14.
Petitioner also cites Wilson, a case involving a pain and suffering award of
$130,000.00,9 as an example of a less severe SIRVA injury. Brief at 14-15. Stressing that
the Wilson petitioner suffered co-morbidities both prior to and after vaccination, he insists
his pain levels, duration of symptoms, and injury impact were greater. Id.Respondent does not provide comparable cases with similar pain and suffering
awards to the amount he is proposing. Opp. at 5-8. Instead, he includes discussions on
the following topics: 1) his preference for the holding in Hocraffer over Graves, 2) his
belief that comparisons to reasoned SIRVA decisions are problematic due to the smaller
quantity of this type of award, and 3) a “meeting-in-the-middle” method that Respondent
believes is being utilized by the special masters when determining the appropriate amount
of damages to be awarded. Id. at 6 n.4, 7-8; see Graves, 109 Fed. Cl. 579; Hocraffer v.
Sec’y of Health & Hum. Servs., No. 99-0533V, 2007 WL 914914 (Fed. Cl. Spec. Mstr.
Feb. 28, 2007).
8Reed v. Sec’y of Health & Hum. Servs., No.16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1,
2019; Tumolo v. Sec’y of Health & Hum. Servs., No.16-0343V, 2020 WL 6279711 (Fed. Cl. Spec. Mstr.
Oct. 1, 2020).
9Wilson v. Sec’y of Health & Hum. Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. Mar. 18,
2021).
7
In his reply brief, Petitioner addresses the more general arguments raised by
Respondent, noting they had been previously discussed but rejected. Reply at 1-4. He
also argues Respondent has ignored or misrepresented key evidence and facts and
improperly devalued his SIRVA injury. Id. at 4-8.
V. Appropriate Compensation for Petitioner’s Pain and Suffering
A. General Guidance for Analysis
The guidance provided by the Graves decision is clear,10 and I have previously
addressed the more general arguments made by Respondent during expedited motions
days and in other damages decisions. While noting that “meeting in the middle” may occur
in some cases (and disappoint both sides as a result), I have in fact rejected it as a tool
for deciding damages disputes, because “each petitioner deserves an examination of the
specific facts and circumstances in her or his case.” Sakovits, 2020 WL 3729420, at *3. I
also have rejected Respondent’s argument that the amounts awarded in proffered cases
are a more accurate gauge of the appropriate amount to be awarded than reasoned
decisions from the court and special masters. Id. at *4. While “settled cases and proffers
provide some evidence of the kinds of awards received overall in comparable cases,”
they are not as persuasive as reasoned decisions from a judicial neutral. Id. (emphasis in
original). Taken as a whole, however, the data from these decisions can be a helpful
gauge of the compensation being awarded in SPU SIRVA cases.
B. Specific Analysis
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 his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing the analysis in this case, I review the record as a whole to include
the medical records, declarations, affidavits, and all other filed evidence, plus the parties’
briefs and other pleadings. I consider 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 determination on the circumstances of this case.
A thorough review of the medical records reveals that Mr. Friberg suffered a
moderate to severe SIRVA injury for approximately six months – until undergoing
10 See supra Section II (for further discussion).
8
arthroscopic surgery in late April 2019. Thereafter, he showed significant improvement
during four months of PT. By early September 2019 – approximately eleven months post-
vaccination - Petitioner’s SIRVA injury had resolved.
Although Petitioner maintains that his injury gradually worsened thereafter,
requiring further treatment beginning in August 2021, the record does not support this
interpretation of his course. He has failed to provide sufficient evidence to link his later
shoulder pain to the SIRVA injury he suffered in the fall of 2018.
Prior to his April 2019 surgery, Petitioner routinely showed moderate limitations in
range of motion (“ROM”) and reported pain levels that ranged from zero to three at rest
and eight to ten with activity.11 Exhibit 4 at 27-28, 23-24, 19-20, 16-17 (in chronological
order). An MRI - performed in late December 2018, revealed a full-thickness rotator cuff
tear, moderate degenerative changes, and mild bursitis. Id. at 34.
During this six-month period, Petitioner pursued conservative treatment for his
SIRVA injury. Exhibit 4 at 20-31. On January 15th, he was administered a cortisone
injection (id. at 25) which provided some temporary relief (id. at 20). However, he
continued to report pain, soreness, and stiffness while attending 11 PT sessions from
January 18th through February 26th. Exhibit 5 at 125-52. By his seventh PT session on
February 12th, Petitioner reported worsening pain – at a level of five to six at rest and
seven to eight when lifting his arm. Id. at 133. At his next orthopedic appointment – on
February 28th, Petitioner reported that the temporary relief afforded by the cortisone
injection was wearing off, and that his pain levels were three at rest and nine with activity.
Exhibit 4 at 20. He continued to exhibit limitations in his ROM. Id.
On April 26, 2019, Petitioner underwent arthroscopic surgery to repair a full
thickness rotator cuff tear. Exhibit 4 at 32-33. The surgery included a subacromial
decompression, biceps tenodesis,12 bioinductive augmentation implantation,13 and
extensive debridement of the glenohumeral joint and subacromial space. Exhibit 4 at 32.
At his first orthopedic visit post-surgery, Petitioner reported improved pain levels –
11 The provided pain levels are based upon a scale of zero to ten.
12Biceps tenodesis surgery treats injuries that happen when you tear or damage the tendon that connects
your biceps muscle to your shoulder. See https://my.clevelandclinic.org/health/treatments/21926-biceps-
tenodesis (last visited July 6, 2022).
13 Bioinductive augmentation implantation is a relatively new procedure used during arthroscopic surgery
to repair rotator cuff tears in an attempt to promote healing. See
https://www.arthroscopysportsmedicineandrehabilitation.org/article/S2666-061X(21)00119-X/fulltext (last
visited July 6, 2022).
9
three at rest and four with activity. Exhibit 4 at 14. It was noted that he was in a sling and
had not yet started PT. Id.
Petitioner began his post-surgical PT on May 7, 2019. Exhibit 5 at 117-20. By May
21st, he reported decreased pain levels overall, currently no pain, and 60 percent
improvement since starting PT. Id. at 105. He was able to stop using a sling by June 6.
Id. at 94.
Although he experienced some temporary increase in symptoms with activity,14
Petitioner continued to show good overall improvement. By July 1 st, Petitioner indicated
he was 75 percent improved and experiencing pain at a level of one to two. Exhibit 5 at
75. Two days later, he had no pain or soreness despite mowing the yard and performing
activities that he “hadn’t done in a long time.” Id. at 70. By August, he reported 85 percent
improvement. Id. at 46. And at the end of August, Petitioner reported no pain and 98-99
percent improvement. Id. at 18, 15 (chronologically). When discharged from PT on
September 5, 2019, Petitioner reported “feeling great” and being “100% improved since
starting therapy.” Id. at 2. It was noted that he had met all PT goals. Id. at 3-4.
Although Petitioner disputes the depiction of a full recovery found in the PT record
created on September 5, 2019,15 the remainder of the PT records align with this evidence.
Petitioner showed steady improvement during 42 post-surgical PT sessions Petitioner
attended from early May through September. Additionally, information contained in
contemporaneously created medical records are generally viewed as more reliable that
any current assertions, especially when they are supported by other medical record
entries. Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Similarly, Petitioner’s claims of left shoulder pain gradually returning and forcing
him to seek treatment again on August 31, 2021, are not supported by the
contemporaneously created medical records. Throughout this almost two-year gap in
treatment, Petitioner visited his orthopedist on multiple occasions for right knee pain,
undergoing surgery on November 25, 2020. Exhibit 7 at 15-52, 60-98. However, he failed
to mention left shoulder pain at any of these orthopedic appointments.
The only evidence supporting Petitioner’s assertion of left shoulder pain from
September 2019 through August 2021 are histories provided by Petitioner in August
2021, and the assertions made by Petitioner and his wife in their affidavits executed in
April 2022. Exhibit 7 at 11, 53; Exhibit 8 at ¶ 3; Exhibit 9 at ¶ 3. It is not sufficient to support
14 For example, on May 30th, Petitioner reported a pain level of four following an appointment with his
orthopedic surgeon that morning. Exhibit 5 at 100. On June 13 th, he reported “some soreness after his
exercises at home.” Id. at 86.
15 Brief at 3; Reply at 4 n.2; Exhibit 8 at ¶¶ 4-5; Exhibit 9 at ¶ 4.
10
Petitioner’s claim of a SIRVA injury which continued beyond September 2019 – eleven
months post-vaccination.
Given my finding regarding the duration of Petitioner’s injury, the cases provided
by Petitioner are not suitable comparisons for this case. The only helpful comparison is
the Wilson case – but its award exceeds what the facts of this case support. The Wilson
petitioner experienced significant pain levels and an overall injury for approximately twice
the lengths of time as Petitioner – eleven and more than thirty months vs. six and eleven
months for Petitioner. Wilson, 2021 WL 1530731, at *3-4. Thus, the amount awarded
Petitioner in this case should fall well below the $130,000.00 given to the Wilson
petitioner.
Instead, I find that the cases of Issertell and Rector – in which the petitioners were
awarded $112,500.00 and $120,000.00, respectively16 - offer better comparisons to the
facts and circumstances in this case. Both involve petitioners who experienced seven and
five months of severe pain, respectively, followed by similar arthroscopic surgeries, and
good resolution of their symptoms within one year. Issertell, 2022 WL 2288247, at *2-6;
Rector, 2020 WL 4692449, at *2-3. However, the Issertell petitioner underwent less PT,
and it was unclear how much of her chiropractic care was for her shoulder injury. Issertell,
2022 WL 2288247, at *2-6, 9. And, although it only provided some temporary relief,
Petitioner received a cortisone injection, which the Rector petitioner did not. Rector, 2020
WL 4692449, at *2-4. Thus, I find that the award in this case should be more than what
the Issertell petitioner received, while close to what the Rector petitioner was awarded.
VI. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $117,00.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.17 I also find that Petitioner
is entitled to $8,102.92 in actual unreimbursable lost wages.
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $125,102.92 in the form of a check payable to Petitioner. This
16Issertell v. Sec’y of Health & Hum. Servs., No. 20-0099V, 2022 WL 2288247 (Fed. Cl. Spec. Mstr. May
17, 2022); Rector v. Sec’y of Health & Hum. Servs., No. 17-1767V, 2020 WL 4692449 (Fed. Cl. Spec. Mstr.
July 13, 2020).
17Since 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 & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11
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.18
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18Pursuant 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