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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1286V
UNPUBLISHED
CASEY R. MORGAN, Chief Special Master Corcoran
Petitioner, Filed: September 2, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Meningococcal
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 29, 2020, Casey R. Morgan 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”), as defined in the Vaccine Table, after receiving a
Meningococcal B vaccine on July 5, 2019. Petition at 1, ¶ 2. 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 December 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 $64,308.09, representing $63,000.00 for actual pain and
suffering, plus $1,308.09 for past expenses.
I. Relevant Procedural History
Along with his petition, Mr. Morgan filed the medical records and affidavit required
under the Vaccine Act. Exhibits 1-8; see Section 11(c). On November 17, 2020, 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.
On December 29, 2021, Respondent filed his Rule 4(c) Report conceding
Petitioner was entitled to compensation, and I issued a Ruling on Entitlement the same
day. ECF Nos. 16-17. For approximately two months thereafter, the parties attempted to
informally resolve the issue of damages. See, e.g., Status Report, filed Jan. 31, 2022,
ECF No. 19. On March 3, 2022, they informed me they had reached an impasse in their
damages discussions. ECF No. 21.
In early May 2022, the parties filed their damages briefs, and Petitioner filed
documentation regarding his claimed expenses. Respondent’s Brief on Damages
(“Opp.”), May 2, 2022, ECF No. 22; Petitioner’s Brief in Support of Damages Decision
(“Brief”), May 3, 2022, ECF No. 23; Exhibits 10-11, ECF No. 24. Neither party filed a
responsive brief by the deadline set thereafter. See Order, issued May 4, 2022.
In response to an inquiry by the OSM staff attorney assisting me on this SPU case,
the parties confirmed the disputed expenses consisted of a $150.00 payment to the
physical therapy (“PT”) clinic Petitioner first attended in in early August 2020 – although
the quality of this receipt was poor and it did not indicate the item purchased (Exhibit 10
at 7), and claimed mileage (Exhibit 11). See Informal Remark, dated Aug. 3, 2022. On
August 3, 2022, Petitioner filed a better copy of the receipt for $150.00 paid to Petitioner’s
PT clinic, but did not provide further explanation regarding this charge. Exhibit 12, ECF
No. 27. 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,
2
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 &
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
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
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.
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).
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
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
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
1st 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
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
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
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
Petitioner seeks compensation in the amount of $75,763.40, representing
$74,000.00 for his pain and suffering, $1,458.09 for his put-of-pocket expenses, and
$305.31 for mileage. Brief at 1, Exhibits 10-11. To support the amount sought for pain
and suffering, he emphasized the immediate nature and severity of his pain, significant
limitations in range of motion (“ROM”), young age at the time of injury – 21 years old, and
lack of any prior left shoulder issues. Brief at 6. He noted that “[f]our and a half months
post-vaccination, on November 23, 2019, he was still ‘very restricted in his range of
motion of his left shoulder due to pain . . . visibly uncomfortable with attempts to progress
his flexion and abduction ranges of motion.’” Brief at 10 (quoting Exhibit 5 at 42.)
Regarding the overall duration of his SIRVA injury, Petitioner stressed that he
pursued formal treatment for more than six months, through mid-February 2020. Brief at
7. Emphasizing his continued fatigue and limitations in ROM and the recommendation for
additional PT at his last session on February 14 th (see Exhibit 5 at 9), Petitioner
maintained that the lack of additional treatment thereafter was due solely to the COVID
pandemic. Brief at 7-8. He insisted that he continues to experience low-grade, throbbing
pain at a level of three to four out of ten, and that his grades suffered during his injury. Id.
at 8.
6
Petitioner compared the facts and circumstances in his case favorably with the
experiences of the petitioners in Sherbine and Garrett, who received $75,000.00 and
$70,000.00, respectively, for their past pain and suffering.8 Brief at 8-9. Although he
equated his pain with that suffered by the Sherbine petitioner, Petitioner contrasted the
time between injury and first treatment – noting the Sherbine petitioner delayed seeking
treatment for six months. Id. at 9. He argued that his pain levels and restriction in ROM
were greater than that suffered by the Garrett petitioner. Id.Regarding the expenses he seeks, Petitioner submitted receipts and other
documentation showing that he paid co-pays totaling $1,308.09. Exhibit 10. For the
additional payment of $150.00, he submitted only an unsigned credit card receipt dated
August 8, 2019. Exhibit 10 at 7; Exhibit 12. He provided no accompanying documentation
or explanation as to the purpose of this purchase. To substantiate the claimed mileage
amount of $305.31, Petitioner submitted a list of mileage to and from medical
appointments in Overland Park and Lawrence, Kansas. Exhibit 11.
Respondent proposes that Petitioner should receive $45,000.00 for his actual pain
and suffering, and $1,308.09 for his past unreimbursed expenses. Opp at 1. Although he
later confirmed by email correspondence that he opposes payment of the $150.00
purchase and claimed mileage, he provided no rationale for his position.
To support this lower pain and suffering amount, Respondent insisted that, by
Petitioner’s last PT session in February 2020, Mr. Morgan “had returned to full activity
and was able to exercise, including bench press, without issues.” Opp. at 2. He
emphasized the results of Petitioner’s second MRI, performed on December 24, 2019,
which “showed full resolution of [P]etitioner’s shoulder inflammation and confirmed the
absence of any pathological structural damage.” Id. at 3.
Respondent compared the facts and circumstances in Petitioner’s case favorably
to those experienced by the Ramos petitioner, who was awarded $40,000.00 for his
actual pain and suffering.9 Opp. at 2. Acknowledging that the Ramos petitioner delayed
seeking treatment for almost four months post-vaccination, Respondent argued this
difference is negated by the longer duration of the Ramos petitioner’s injury – thirteen
months in all with some initial relief after his first round of PT. Id. at 2-3.
8Sherbine v. Sec’y of Health & Hum. Servs., No.17-0413V, 2020 WL 1933136 (Fed. Cl. Spec. Mstr. Mar.
27, 2020); Garrett v. Sec’y of Health & Hum. Servs., No.18-0490V, 2019 WL 2462953 (Fed. Cl. Spec. Mstr.
Apr. 8, 2019).
9Ramos v. Sec’y of Health & Hum. Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4,
2021).
7
V. Appropriate Compensation
A. Facts and Circumstances
1. From Medical Records
When seeking treatment on July 11, 2019, just five days post-vaccination,
Petitioner described a dull ache which increased to a level of eight to nine out of ten with
movement. Exhibit 2 at 122. Upon examination, he showed diminished range of motion
and an inability to “raise the shoulder or elbow above 90 degrees due to discomfort in the
deltoid area.” Id. at 124. Petitioner repeated these symptoms when seen by an
orthopedist on July 22nd, and an MRI performed a few days later revealed inflammation.
Exhibit 3 at 13-14.
At his first PT session on August 9th, Petitioner reported current pain of two out of
ten which could rise to a level of ten out of ten at its worst. Exhibit 4 at 23. Petitioner
attended a total of four PT sessions at a clinic near his home, during August 2019. Exhibit
4 at 9-31.
It appears Petitioner then returned to college as he began attending PT at a clinic
approximately 80 miles away in Lawrence, Kansas - close to the university he likely
attended. At his first visit on September 19th, he reported pain levels which generally
ranged from two to five during specific activities. Exhibit 5 at 73. Reporting that his worst
pain level was seven out of ten, Petitioner indicated he had no pain when removing
something from his pocket and pain at a level of ten when placing or attempting to remove
an object from a top shelf – a task he was unable to accomplish. Id. By his third PT session
at this clinic on October 26th,10 Petitioner reported that his home exercise program was
helping. Id. at 53. By his fourth visit on October 31st, he indicated he “has been able to
work out including biceps curls, tricep[s] extension, machne [sic] chest press without pain
reproduction.” Id. at 49. However, he continued to exhibit limitations in his ROM. Id. at 23-
36.
In November 2019, Petitioner attended PT at both clinics: his fifth visit to the clinic
near his home on November 11th, and his sixth visit to the Lawrence clinic near his school
on November 22nd. Exhibit 4 at 2-8; Exhibit 5 at 41-45. At the November 22nd visit, he
indicated that he tried benching pressing a lighter weight than he used prior to his
shoulder injury and that “his shoulder has been very sore over the past few days since
10 Although twelve visits had been authorized in September 2019 (see Exhibit 5 at 59), it was noted that
scheduling difficulties had resulted in Petitioner having attended only three sessions by late October. See
id. at 53.
8
the last workout.” Exhibit 5 at 41.
On November 27th – most likely during his Thanksgiving break, Petitioner returned
to his orthopedist, reporting concern at his slow progress. Exhibit 3 at 8. The orthopedist
noted improvement since Petitioner’s last examination, but ordered another MRI due to
Petitioner’s concerns. Id. The results of the MRI – performed in late December, were
normal. Id. at 6.
At his December 13th PT session, Petitioner reported a slight setback, indicating
he was “very sore for 2-3 days after the last sessions but continues to feel that [t]he PT
is helping despite the increase in pain.” Exhibit 5 at 26. However, by his seventh PT
session at the Lawrence clinic on January 10, 2020, Petitioner reported the ability “to do
more of his workouts without much pain” and a belief that “he is more limited by tightness
in his shoulder than pain at this point.” Id. at 37. He attributed at least some of his greater
left-sided weakness to his right-handed dominance. Id. at 38. By his eighth session at the
Lawrence clinic on December 30th, Petitioner indicated that his ROM and strength had
improved and he “[h]as able to be more active.” Id. at 23.
Pursuant to a new PT order for twelve additional sessions, Petitioner returned to
PT on February 7, 2020. Exhibit 5 at 12, 16 (new PT order dated the previous day). At
that initial visit, it was noted that Petitioner was making good progress with ROM and
strength and [h]as been able to return to full activity without much pain, [but] weight lifting
return has been more gradual.” Id. At his second and last visit on February 14th, Petitioner
reported being “able to bench press without any issues,” although he indicated being “a
little sore after the last visit.” Id. at 9.
2. From Petitioner’s Affidavit
In his supplemental affidavit, Petitioner indicated that “[d]uring the first few months
following the injection, [his] shoulder was nearly completely frozen and [he] was in
constant pain all day (9-10 level constantly).” Exhibit 9 at ¶ 5. He maintained that he
“missed out on over a year of [his] youth and was unable to do any physical activities that
[he] used to participate in such as working out, riding [his] motorcycle, and even making
[his] bed” (id. at ¶ 6), and that his grades declined (id. at ¶ 7). Describing pain which
radiated from his shoulder to his fingertips and caused “misery each and every day,”
Petitioner asserted that his injury exacerbated his already existing anxiety, causing
constant stress and panic attacks. Id. at ¶ 6. He contrasted his prior weight-lifting abilities
with what he could do post-vaccination and insisted he was unable to receive the care he
needed due to his busy student schedule. Id. at ¶¶ 6-7.
Maintaining that the COVID pandemic was the reason he did not pursue further
9
PT (Exhibit 9 at ¶ 7), Petitioner alleged that his injury continues to affect “many aspects
of [his] day to day life” and “caused [him] to change the way [he] live[s].” Id. at ¶ 8. He
described continued low-grade and throbbing pain throughout the day and increased pain
of a level of seven to eight with too quick or incorrect movement. Id. at ¶ 9. Describing a
constant pressure and sometime small clicking noise, Petitioner reported his symptoms
“can still interfere with [his] sleep.” Id.B. Appropriate 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 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. Morgan suffered a
SIRVA injury involving immediate and severe pain with movement and thus, significant
limitations in his ROM. Initially, his pain ranged from two to ten – a dull ache which
became sharp with movement. An MRI performed two weeks post-vaccination revealed
inflammation and edema. At his first visit through his PT session in late September 2019,
Petitioner exhibited significant limitations in his ROM.
However, even Petitioner’s initial pain at rest was lower – two out of ten when he
first reported his injury. And at his late September PT visit, his reported pain level was
three to five with most movement. Only when he attempted to reach overhead did his pain
reach severe levels – eight to nine and ten.
Furthermore, Petitioner showed significant improved during PT sessions in
October and November 2019. By late October, he was working out with weights. And the
results of an MRI performed in December were normal. After only a few more PT
sessions, it was noted that Petitioner could perform full activity without much pain. By his
last PT session in mid-February 2020, he was bench pressing weights without issue.
In his supplemental affidavit, Petitioner described constant severe pain and a
nearly frozen shoulder, failed to mention the improvements he experienced from PT
sessions he attended, and attributed the cessation of his treatment solely to the COVID
10
pandemic. His account is not supported by the information contained in the medical
records. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir.
1993) (contemporaneously created medical records are generally viewed as more reliable
that any current assertions, especially when they are supported by other medical record
entries).
Despite his assertion of more extreme symptoms and duration, Petitioner did
provide helpful comparable cases. Like the Petitioner in this case, the Sherbine petitioner
suffered immediate pain, especially when reaching overhead which resulted in significant
limitations in ROM. Sherbine, 2020 WL 1933136, at *10. However, she did not experience
the more immediate relief Petitioner experienced in response to PT, approximately four
months post-vaccination. Eight months post-vaccination, the Sherbine petitioner
continued to suffer severe levels of pain – ranging from five to ten. Id. Thus, Petitioner’s
pain and suffering compensation should be lower than the $75,000.00 awarded to the
Sherbine petitioner.
Although the Garrett case provides a more comparable comparison, the award in
this case still should be lower. The $70,000.00 awarded in Garrett was based in part on
the fact that the Garrett petitioner was benched during his junior year of high school
basketball, after earning, for the first time, a position on the varsity team. Garrett, 2019
WL 2462953, at *10. Despite Petitioner’s similar young age and college attendance, he
did not experience the disappointment associated with such a significant missed
opportunity. Although Petitioner argued that his injury affected his grades, he provided no
evidence to support this assertion. Still, given the similar ages, pain levels, and duration
of these injuries, Petitioner’s pain and suffering compensation should be closer to,
although still lower, than that awarded to the Garrett petitioner.
In contrast, the case cited by Respondent does not provide a helpful comparison.
There are significant differences between the facts and circumstances experienced by
the Ramos petitioner and the Petitioner in this case which render any comparison
ineffective. For example, the Ramos petitioner delayed seeking treatment of his SIRVA
injury for approximately four months, despite attending intervening medical appointments
for unrelated conditions. Ramos, 2021 WL 688576, at *5. Additionally, the Ramos
petitioner’s initial pain level was not as significant and decreased substantially
approximately one month after he sought treatment. Id. at *2-3.
Rather, I find there are substantial similarities between the facts and circumstances
in this case and those suffered by the petitioner in Dagen, who received $65,000.00 for
her pain and suffering.11 Like Mr. Morgan, the Dagen petitioner quickly sought treatment
11
Dagen v. Sec’y of Health & Hum. Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6,
2019).
11
for her injury, experienced significant levels of pain and limitations in ROM, and obtained
relief by seven months post-vaccination following 16 PT sessions. Dagen, 2019 WL
7187335, at *2-4, 9-10. Although the Dagen petitioner’s improvement was slightly slower
– 80 percent by five months post-vaccination, she also was older at the time of vaccination
and exhibited some evidence of degenerative changes. Id. Thus, I find that a pain and
suffering award of $63,000.00 is appropriate in this case.
C. Unreimbursable Expenses
Because the parties have agreed that Petitioner should be compensated for the
$1,308.09 in co-pays paid by Petitioner, the only areas of dispute involve the $150.00
purchase on August 9, 2019, and mileage costs Petitioner has claimed. I will not
compensate Petitioner for either of these amounts due to a lack of adequate supporting
documentation.
Petitioner failed to indicate the purpose of the $150.00 payment to the PT clinic,
which is supported only by an unsigned credit card receipt. Similarly, Petitioner provided
a list of mileage driven on dates when he received medical treatment, but failed to confirm
or to provide additional evidence to show, that he drove these distances in his own vehicle
solely for the purpose of obtaining medical treatment.
Mileage costs have been paid in other Program cases. See, e.g., Tyler v. Sec’y of
Health & Hum. Servs., No. 18-0355V, 2019 WL 6118229 (Fed. Cl. Spec. Mstr. Sept. 5,
2019) (proffered award which included payment for mileage costs). However, the costs
must be shown to be related to the vaccine-related injury. See S.C. v. Sec’y of Health &
Hum. Servs., No. 19-0341V, 2021 WL 2949763, at *5 (Fed. Cl. Spec. Mstr. June 14, 2021)
(compensation allowed for only mileage related to the SIRVA injury). And the purpose of
this reimbursement is to compensation a petitioner for the additional miles driven in his or
her vehicle. Thus, no mileage compensation has been awarded when a petitioner was
unable to drive herself to her medical appointments and was required to rely upon rides
from family and friends12 or when a petitioner was using a friend or family member’s car.13
In this case, there is evidence that Petitioner was accompanied to all orthopedic
appointments by at least one parent. See Exhibit 3 at 8, 10, 16. Additionally, it appears
that, for at least some visits, Petitioner drove 82 miles – the approximate distance from
12Frye v. Sec’y of Health & Hum. Servs., No. 18-1091V, 2020 WL 8457671, at *6 (Fed. Cl. Spec. Mstr.
Dec. 16, 2020) (disallowed mileage after petitioner was unable to drive).
Ashe-Robinson v. Sec’y of Health & Hum. Servs., No. 94-1096V, 1997 WL 53450, at *2 (Fed. Cl. Spec.
13
Mstr. Jan. 23, 1997) (no mileage awarded for trips made using a friend or family member’s car).
12
his home to the Lawrence clinic near his university. It is not clear whether Petitioner or
one of his parents were driving this distance. If the former, it appears the purpose of the
trip was not only to seek medical treatment, but perhaps to return to school. If the later,
Petitioner may not have been in the car. Given his young age at the time of his injury, it
is not clear that Petitioner even own a vehicle. Without further explanation regarding the
mileage claim, I cannot determine that it is appropriate compensation.
VI. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $63,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.14 I also find that Petitioner
is entitled to $1,308.09 in actual unreimbursable expenses.
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $64,308.09 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.15
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
14Since 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)).
15Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
13