Dobbins v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0854V
Filed: August 15, 2018
PUBLISHED
LESLIE DOBBINS,
Petitioner, Special Processing Unit (SPU);
v. Decision Awarding Damages; Pain
and Suffering; Tetanus-Diphtheria-
SECRETARY OF HEALTH AND acellular Pertussis (Tdap) Vaccine;
HUMAN SERVICES, Shoulder Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On July 20, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that she suffered from a right shoulder injury as a result of
receiving a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on September 21,
2015. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters.
On September 6, 2017, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for her shoulder injury related to vaccine
administration (“SIRVA”). The only issues remaining before the undersigned are the
amount of damages that petitioner should be awarded in compensation for (1) past and
future pain and suffering and (2) out-of-pocket expenses. For the reasons described
1 Because this decision contains a reasoned explanation for the action in this case, the undersigned
intends 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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
below, the undersigned finds that petitioner is entitled to an award of damages in the
amount of $128,143.80, which is comprised of (1) $125,000.00 for pain and suffering
and (2) $3,143.80 for out-of-pocket expenses.
I. Procedural History
On September 5, 2017, respondent filed his Rule 4(c) report in which he
conceded that petitioner was entitled to compensation in this case. Respondent’s Rule
4(c) Report at 1 (ECF No. 28). On September 6, 2017, the undersigned issued a ruling
on entitlement finding petitioner entitled to compensation for her SIRVA (ECF No. 29).
Prior to respondent’s concession, the parties informally attempted to agree on
damages but reached an impasse. Damages and Pre-Hearing Order, filed Sept. 20,
2017 (ECF No. 30). The parties agreed that a damages hearing was appropriate. Id.
Thus, a damages hearing was scheduled for February 21, 2018. Petitioner filed her
brief on damages on November 6, 2017 (ECF No. 32) and respondent filed his brief on
January 19, 2018 (ECF No. 36).
The undersigned held a damages hearing on February 21, 2018, during which
petitioner testified. Transcript of Proceedings held on February 21, 2018 (“Tr.”).
Following the hearing, the undersigned issued an order directing petitioner to file
additional records. Scheduling Order, filed Feb. 21, 2018 (ECF No. 39). Petitioner filed
additional records on March 23, 2018 and April 24, 2018 (ECF Nos. 42, 45).
On May 10, 2018, the undersigned issued an order allowing the parties to file
additional evidence by May 24, 2018 and indicating that after that date, the record
would be closed. Scheduling Order, issued May 10, 2018 (ECF No. 47). On May 22,
2018, petitioner filed Exhibit 13 detailing her claimed out-of-pocket medical expenses
(ECF No. 48). In an informal email communication on June 22, 2018, respondent
confirmed that he does not object to an award of these expenses, provided supporting
documentation is provided.
Petitioner filed an updated list of expenses on July 26, 2018, increasing the
amount requested for out-of-pocket medical expenses. Pet. Ex. 14. On the same day,
petitioner also filed a motion for an extension of time, until August 9, 2018, to file
additional documentation. Motion for Enlargement, filed July 26, 2018 (ECF No. 51).
This motion was granted. Scheduling Order, issued July 27, 2018 (ECF No. 52).
Petitioner did not file any additional documentation or a request for additional time to do
so by that deadline. This case is now ripe for a determination concerning petitioner’s
damages.
II. Factual History
Petitioner received a Tdap vaccine on September 21, 2015 at a Rite Aid
Pharmacy in Ocean Springs, Mississippi. Petitioner’s Exhibit (“Pet. Ex.”) 1 at 3. At the
time of vaccination, petitioner was 56 years old and had no history of shoulder
problems. Petition at 3; see generally Pet. Ex. 2.
Three weeks later, on October 16, 2015, petitioner presented to Dr. Donnis
Harrison at Bienville Orthopaedic Specialist LLC for complaints of right shoulder pain.
2
Pet. Ex. 2 at 19, Pet. Ex. 3 at 3. Petitioner reported that the pain had an aching, sharp,
dull, burning, stabbing, and throbbing quality. Id. Petitioner reported the pain to be mild
to moderate in severity and intermittent. Id. Petitioner stated that the pain interfered
with activity and was aggravated by raising her arm up or overhead. Id. On
examination of petitioner’s right shoulder, Dr. Harrison noted that there was localized
tenderness to palpation present in the subacromial space and no swelling present. Pet.
Ex. 2 at 21, Pet. Ex. 3 at 5. Dr. Harrison tested her active range of motion and found it
was limited and painful. Id. Her active abduction was 30-60 degrees, active forward
elevation was 61-90 degrees, and active external rotation was 45-65 degrees. Id. Dr.
Harrison noted that petitioner’s strength was limited due to pain and she had positive
impingement signs on the Neer and Hawkins’ tests. Id. Dr. Harrison diagnosed
petitioner with right shoulder bursitis, impingement syndrome of the right shoulder, and
osteoarthritis of the right shoulder region. Dr. Harrison gave petitioner an injection of
Depo Medrol in her right shoulder, ordered shoulder x-rays, prescribed Mobic, and
recommended conservative treatment with stretching exercises, range of motion
exercises, strengthening exercises, activity modification, rest, and cold and/or heat
application. Pet. Ex. 2 at 21-22, Pet. Ex. 3 at 5-6.
On October 20, 2015 Dr. Harrison ordered a right shoulder MRI without contrast.
Pet. Ex. 3 at 9. An MRI was performed on October 29, 2015 at Cedar Lake MRI in
Biloxi, Mississippi. Id. at 10. The MRI impression included a full-thickness partial tear
of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and
partial thickness tear of the tendon, tear of the posterior aspect of the inferior
glenohumeral ligament, and moderate sized joint effusion with synovitis and possible
small loose bodies. Id. at 11.
On October 30, 2015, petitioner returned to Dr. Harrison to review the MRI
findings. Pet. Ex. 2 at 25-28, Pet. Ex. 3 at 14-17. Petitioner reported no change since
her last visit, and continued to report joint pain, muscular weakness, muscle pain, and
limitation of motion. Pet. Ex. 2 at 25-26, Pet. Ex. 3 at 14-15. On examination, Dr.
Harrison found that petitioner’s right shoulder continued to exhibit pain with range of
motion, limited range of motion, and positive Neer and Hawkins’ impingement signs.
Pet. Ex. 2 at 26, Pet. Ex. 3 at 15. For active range of motion, he determined her
abduction was limited to 30 to 60 degrees, forward elevation was limited to 61-90
degrees, and active external rotation was limited to 45-65 degrees. Id. He found that
her strength remained limited secondary to pain. Id. Dr. Harrison noted that the MRI
showed a “[r]ight, medium full thickness rotator cuff tear, supraspinatus muscle, AC
Joint DJD.” Pet. Ex. 2 at 27, Pet. Ex. 3 at 16. Dr. Harrison added a diagnosis of acute
right rotator cuff tear to his prior diagnoses. Id. Dr. Harrison scheduled arthroscopic
surgery of petitioner’s right shoulder. Id.
On November 2, 3 and 4, 2015, petitioner was seen at the American College of
Acupuncture and Oriental Medicine for complaints of limited range of motion in her right
shoulder. Pet. Ex. 10 at 12-19. At her shoulder examination on November 2, 2015, she
reported that she got a shot on September 21 and it became painful that night. Id. at
16. She reported that a cortisone shot with lidocaine did nothing and that an MRI
showed a torn rotator cuff. Id. She reported pain that varied between 2/10 and 8/10,
and noted that with movement the pain was 7-8/10. Id. She was given a plan of
treatment involving acupuncture five times a week. Id. She attended additional
3
sessions on November 3 and 4, 2015. Id. at 12-15. The record contains no evidence
that she attended further acupuncture sessions for her shoulder problem.
On November 10, 2015, Dr. Harrison performed arthroscopic surgery on
petitioner’s right shoulder. Pet. Ex 2 at 29, Pet. Ex. 3 at 21. Dr. Harrison performed a
right arthroscopic rotator cuff repair, arthroscopic distal clavicle resection, arthroscopic
subacromial decompression, and arthroscopic biceps tenodesis. 3 Id. The procedures
were performed under general anesthesia and there were no complications. Pet. Ex. 2
at 30, Pet. Ex. 3 at 22. Several portals were established, and a camera was placed in
the subacromial space. Id. During the surgery, Dr. Harrison visualized a full thickness
tear involving the supraspinatus and subscapularis. Id. He noted that the “biceps
tendon insertion was unstable with significant labral pathology in the intraarticular
aspect” of petitioner’s shoulder. Id. The “biceps tendon was split with a spinal needle
and released off the anterior superior” labrum. Id. Dr. Harrison debrided the anterior
superior and posterior superior labrum back to stable edges using a shaver. Id. Dr.
Harrison used a hooded burr to perform an acromioplasty 4 and a complete bursectomy5
was performed. Id. A biceps tenodesis was also performed. Id. Finally, he repaired
the rotator cuff and performed a distal clavicle resection. Id.
Petitioner had post-operative follow-up visits to Dr. Harrison on November 18 and
December 1, 2015. Pet. Ex. 2 at 32, Pet. Ex. 3 at 24, 28. At the December 1, 2015
appointment, her strength and range of motion remained limited due to pain. Pet Ex. 2
at 35.
On December 1, 2015, petitioner presented to Ocean Springs Hospital
Rehabilitation Center in Ocean Springs, Mississippi for a physical therapy evaluation
with physical therapist Erin Moody. Pet. Ex. 5 at 3; see also Pet. Ex. 2 at 36-38 and
Pet. Ex. 3 at 25-27. She reported an onset of shoulder pain after an immunization in
September 2015. She rated her current level of pain at 1 on a scale of 1-10 and
reported that she had been taking pain medication regularly. Pet. Ex. 5 at 3. She was
assessed as having decreased range of motion, decreased strength, pain, and
abnormal posture. Id. Her passive range of motion in her right shoulder was 75
degrees in flexion, 75 degrees in abduction, zero degrees in external rotation, and ten
degrees in internal rotation. Id.
The physical therapist established a treatment plan where petitioner would be
seen 2-3 times a week for 4-6 weeks. Id. at 4. Petitioner’s treatment plan included a
progression of home exercises, instruction on posture and body mechanics, manual
3 Tenodesis is “the stabilization of a joint by anchoring a tendon to a bone, done either surgically or
through use of an orthosis.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S) at 1882 (32nd ed.
2012).
4Acromioplasty is the “surgical removal of an anterior spur of the acromion to relieve mechanical
compression of the rotator cuff during movement of the glenohumeral joint.” DORLAND’S at 20.
5A bursectomy is the “excision of a bursa.” DORLAND’S at 264. A bursa is “a sac or saclike cavity filled
with a viscid fluid and situated at places in the tissues at which friction would otherwise develop.”
DORLAND’S at 262. SIRVA injuries may involve vaccine injection into the subdeltoid bursa, resulting in
bursitis, or inflammation of the bursa. See B. Atanasoff et al., Shoulder injury related to vaccine
administration (SIRVA), 28 Vaccine 8049 (2010).
4
therapy to improve range of motion and strength, and the use of modalities as needed
for pain and inflammation to include electrical stimulation, iontophoresis, 6
phonophoresis, 7 and moist heat and ice as appropriate. Id.
Petitioner had additional physical therapy sessions at Ocean Springs on
December 4, 7, 9, 10, 14, 16, 17, 21, 22, 28, and 29, 2015 Pet. Ex. 5 at 5-19. During
this time, she reported pain levels between 1-3 on a scale of 1-10. Id. At her December
14, 2015 session she reported that she had slipped and fallen from a ladder the day
before, but indicated that the incident had not worsened her shoulder pain. Id. at 11. At
her December 28, 2015 appointment she reported that she may be going out of town for
several weeks to visit her mother, who was sick. Id. at 17.
Petitioner testified that she traveled to Texas on New Year’s Eve, which was
approximately six weeks following her shoulder surgery, because her mother had fallen
ill. Tr. at 31-32. Petitioner testified that she cared for her mother at night during this time
and her shoulder injury affected her ability to do so. Tr. at 33. Petitioner testified that
she “had to do a lot of it with my left hand.” Id. She testified that she had recurring
nightmares about an incident where her mother fell, and, in her nightmares, petitioner
was unable to catch her mother. Tr. at 34.
On January 7, 2016, petitioner reported for a physical therapy evaluation with
physical therapist (“PT”) Rosa Del Pino at Memorial Hermann Sports Medicine &
Rehabilitation in Sugar Land, Texas. Pet. Ex. 4 at 8. Petitioner reported that she had
difficulty with daily activities, joint stiffness, muscle tenderness, muscle weakness, and
shoulder pain. Id. She reported that she had flu and whooping cough vaccinations and
experienced severe pain the next afternoon. Id. The evaluation noted that petitioner
“currently lives in Ocean Springs, MS but [is] here visiting parents, for 1-2 months, as
mom was recently diagnosed” with cancer. Id. Petitioner reported that her pain levels
were, at best 0/10, at worst 4/10, and currently 1/10. Id. Her active range of motion in
her right shoulder was 45 degrees in forward flexion and 42 degrees in abduction. In
passive range of motion, her right shoulder was limited to 90 degrees in forward flexion,
68 degrees in abduction, and 25 degrees in external rotation, all with a capsular end
feel. Id.
On examination of petitioner’s right shoulder, PT Del Pino found that petitioner
had moderate scar tissue adherence and that her posterior, lateral, and inferior glides
were all “severely hypomobile.” Id. at 9. PT Del Pino noted that petitioner had
problems with range of motion, muscle strength, posture, poor body mechanics, and
joint mobility. Id. The evaluation noted functional limitations including difficulty in
performing self-care activities of daily living and decreased safety during functional
activities. Id. PT Del Pino’s clinical impression was that petitioner had “severe
adhesive capsulitis.” Id. at 9. A plan of care was established for petitioner to attend
physical therapy three times a week for four weeks. Her treatment was to involve
therapeutic exercises, functional activities, neuromuscular reeducation, manual therapy,
group therapy, cold packs, hot packs, and electrical stimulation Id. at 6, 10.
6 Iontophoresis is “the introduction by means of electric current, of ions of soluble salts into the tissues of
the body, often for therapeutic purposes.” DORLAND’S at 958.
7 Phonophoresis is “the transdermal introduction of a topical agent into the body using mechanical energy
supplied by ultrasound.” DORLAND’S at 1435.
5
Petitioner attended additional physical therapy sessions at Memorial Hermann on
January 8, 12, 13, 15, 18, 20, 22, 25, 27, and 29 and February 1, 3, 8, 10, 12, 15, 17,
23, 24, and 26, 2016 Pet. Ex. 4 at 11-71. On January 8, 2016, she reported a pain
level of 0 both before and after treatment but also reported, “I don’t even feel my arm.”
Id. at 11. On January 12, 2016, petitioner reported a pain level of 2 before treatment
and 1 after treatment. Id. at 13. She also reported that on “Saturday night, [I] was
trying to get [my mother] up and into the wheelchair and her legs gave way and I caught
her with both arms.” Id.
On January 13, 2016, petitioner reported a pain level of 1 before treatment and 0
after treatment. Pet. Ex. 4 at 15. Petitioner was “able to increase flex ROM from 80°
initially to >90° post mobilizations and PROM [passive range of motion].” Id. at 16. She
stated that “she has been unable to perform HEP [home exercise program] due to her
caring for her mother, as she is now the primary caretaker overnight therefore she does
not get much rest.” Id. at 15. Petitioner reported being demoralized due to her personal
life, presumably meaning her mother being critically ill, and her shoulder issues, but that
after coming to physical therapy the day before she felt motivated to move forward as
her range of motion improved. Id. At her January 15, 2016 visit, petitioner reported a
pain level of 0.5/10 and stated that after her last treatment session she had
“experienced her first pain free night since 9/21/15.” Id. at 17. The physical therapist
noted that petitioner “responded well to last treatment, as she is now pain free.” Id. at
18. On January 18, 2016, petitioner reported a current pain level of 1/10. Pet. Ex. 4 at
37. Petitioner reported that she tripped and fell into bushes on her right side while
playing basketball with a six year old relative. Id.
On January 20, 2016, petitioner “reported no pain prior to or after treatment.
P[atien]t stated that her shoulder felt ‘energized’ after last treatment session. P[atien]t
stated that her shoulder feels loose . . . her trigger point pain has decreased in intensity
but still painful to palpation.” Pet. Ex. 4 at 19.
At her January 22, 2016 physical therapy visit, petitioner reported a pain level of
0-0.5/10 and stated that she was experiencing less discomfort with activities in the
home such as transferring her mother. Id. at 22. Petitioner reported that she was
feeling stronger and did not think much about activities/lifting prior to performing them.
Id. The physical therapist noted that petitioner was “eager to perform higher intensity
exercises as she is motivated to return to playing tennis (is now questioning when she
would be able to return).” Id. The physical therapist informed petitioner that “full ROM
[range of motion] must be restored and shoulder shrug sign must be abolished before
returning to play tennis/simulate tennis activities.” Id. at 23.
At her January 25, 2016 session, petitioner stated that her pain was 0/10 but that
it had flared up to 2/10 over the weekend. Pet. Ex. 4 at 25. On January 27, 2016, she
reported a pain level of 2/10, which she attributed to stress from her mother’s condition.
Id. at 28. Petitioner reported that her mother’s status was “continuing to decline” and
that she was “unsure of how much longer she has left and is fearful that she will pass
any day now.” Id. The physical therapist noted that petitioner was extremely emotional
and “began crying while speaking about her mother’s condition.” Id. at 29.
Nevertheless, petitioner was able to complete her exercises without increased pain. Id.
The physical therapist noted that there was an increase in petitioner’s passive range of
6
motion for external rotation and internal rotation. Id. On January 29, 2016, petitioner
reported pain of 2/10. Id. at 31. After treatment, she reported her pain as 0/10. Id.
On February 1, 2016, petitioner reported a pain level of 1/10. Pet. Ex. 4 at 34.
She reported that she lifted and moved her 80 pound mother over the weekend. Id.
She stated that she could now “place a ponytail in the center of her head (as opposed to
placing on the right side out of inability to complete such).” Id. The physical therapist
noted that her range of motion was continuing to improve but that “[s]houlder shrug sign
persists in pure abduction and in more elevated (flexed) GH [glenohumeral] positions.”
Id. at 35.
On February 3, 2018, petitioner stated that her pain was 2/10 because she
aggravated her shoulder when entering a car. Pet. Ex. 4 at 40. After treatment, her
pain level was 1/10. Id. On February 8, 2016, petitioner reported a pain level of 2/10.
Id. at 45. Petitioner stated that her pain was at 0/10 before she reinjured her shoulder
picking up her 25 pound cat. Id. Petitioner reported that she had slept on her right arm
briefly for the first time since before surgery. Id. The physical therapist re-evaluated
petitioner on February 8, 2018 and determined that petitioner had not met her passive
range of motion (“PROM”) goals but had made significant improvements. Id. at 49.
Functionally, petitioner no longer had right shoulder pain while driving. Id. The physical
therapist noted that petitioner had “not been able to play tennis since her surgery so
such goal could not be safely assessed at this time.” Id.
On February 10, 2016, petitioner reported a pain level of 1/10 before treatment
and 0/10 after treatment. Pet. Ex. 4 at 50. Petitioner stated that she was completing
exercises twice daily. Id. Petitioner reported having to do more for her mother because
her mother was less functional and in her final days. Id. On February 12, 2016,
petitioner reported a pain level of 0/10 before her session and 1/10 after treatment. Id.
at 53. Petitioner reported that her mother had taken a turn for the worse and that she
could lose her mother that weekend. Id. On February 12, 2016, petitioner reported pain
of 0/10 before treatment and 1/10 after treatment due to scar irritation. Pet. Ex. 4 at 53.
On February 15, 2016, petitioner stated that her pain was 0/10 because she was
not “checking into the pain due to her mother’s passing.” Pet. Ex. 4 at 56. On February
17, 2016, petitioner reported pain of 2/10 and noted that she was prepared for her
mother’s funeral the following day. Pet. Ex. 4 at 59. Petitioner’s pain level was 0/10
after treatment. Id. The physical therapist assessed that petitioner continued to have
moderate adherence and educated petitioner on proper scar tissue mobilization
technique. Id.
On February 23, 2016, petitioner reported that she was cleaning out her mother’s
closet which resulted in her moving, pushing/pulling, and carrying multiple items without
increased difficulty. Pet. Ex. 4 at 62. Petitioner stated that she would be leaving town
that week to return to Mississippi and that she planned to resume therapy at a clinic
there. Id. She reported a pain level of 2/10 before treatment and 0/10 after treatment.
Id. On February 24, 2016, petitioner reported a pain level of 1/10 before treatment due
to closet cleaning and 0/10 after treatment. Pet. Ex. 4 at 65. The physical therapist
noted that petitioner responded well to treatment. Id. at 66. The therapist assessed
that she continued to exhibit decreased PROM but was able to perform daily activities
without increased difficulty. Id.
7
At her final physical therapy session at Memorial Hermann on February 26, 2016,
petitioner reported pain of 0/10 both before and after treatment. Pet. Ex. 4 at 68. At this
visit, her active range of motion in her right shoulder had improved to 124 degrees in
forward flexion and her passive range of motion was 162 degrees in forward flexion, 52
degrees in abduction, 55 degrees in external rotation, and 71 degrees in internal
rotation, all with a capsular end feel. Id. The physical therapist noted that she had
shown functional improvement and increased her end range of motion. Id. at 70. While
petitioner remained unable to reach above her shoulder height in abduction, she had
been able to eliminate all pain with driving/steering and the only remaining issue while
driving was with reaching her purse on the passenger seat while seated. Id.
After the February 26, 2016 visit, it appears that petitioner returned to her home
in Mississippi. See Ex. 4 at 63 (noting that petitioner was advised to transfer her
treatment to a Mississippi physical therapy clinic, the location to which she was
returning).
On March 1, 2016, Dr. Harrison ordered additional physical therapy for
petitioner’s right shoulder two to three times a week for three to four weeks. Pet. Ex. 3
at 31. Petitioner presented to Dr. Harrison on March 4, 2016 reporting aching and
stating that the symptoms had improved since her last visit. Id. at 32. On examination,
Dr. Harrison noted that her arthroscopy incisions were healed. Id. at 34. Dr. Harrison
found petitioner exhibited “mild limitation of ROM [range of motion],” with active
abduction of 90-130 degrees, active forward elevation of 121-150 degrees, and active
external rotation of 45-65 degrees. Id. Dr. Harrison also found “mild limitation in
strength,” and negative Neer and Hawkins tests. Id.
On March 9, 2016, petitioner returned to Ocean Springs Hospital Rehabilitation
Center in Mississippi and was re-evaluated. Pet. Ex. 5 at 20. On re-evaluation, her
active range of motion in her right shoulder was 115 degrees in flexion, 40 degrees in
extension, 80 degrees in abduction, and 40 degrees in external rotation. Id. Her
passive range of motion was 120 degrees in flexion and abduction, 45 degrees in
external rotation, and 40 degrees in internal rotation. Id. Her strength was 3-/5 in her
right shoulder in all planes. Id. She attended additional physical therapy sessions at
Ocean Springs on March 11, 14, 16, 18, 29, 30, and April 1, 4, 5, 7, 11, 13, 15, 18, 20,
and 29, 2016 Pet. Ex. 5 at 22-43.
At petitioner’s March 9, 2016 session, she reported “mild intermittent anterior
shoulder pain and stiffness and weakness in the shoulder.” Pet. Ex. 5 at 20. She
reported difficulty performing tasks above her head such as reaching into a cabinet and
brushing her hair. Id. On examination, her active range of motion (“AROM”) in flexion
was 115 for her right shoulder, compared to 180 degrees for her left shoulder. Id. She
also exhibited decreased AROM in extension, abduction, external rotation, and
decreased PROM in all planes. Id. Her shoulder strength in all planes was 3-/5 in her
right shoulder, compared to 5/5 for her left shoulder. Id. The physical therapist
assessed petitioner to have decreased ROM, decreased strength, abnormal tone, and
pain. Id. at 21. A treatment plan was established for petitioner to perform a progression
of home exercises, receive instruction on posture and body mechanics, receive manual
therapy to improve ROM and decrease abnormal muscle tone, therapeutic activities to
8
improve ROM and strength, and the use of other modalities as needed for pain and
inflammation. Id.
On March 11, 14, and 16, 2016, petitioner reported a pain level of 1-2/10. Pet.
Ex. 5 at 22, 24-25. On March 18, 2016, she reported pain of 2-3/10. Id. at 26. On
March 28, 2018, she reported a pain level of 2/10. Id. at 28. On March 30 and April 1,
2016, petitioner reported a pain level of 1/10. Id. at 29, 30. On April 4, 2016 she
reported a pain level of 1-2/10. Id. at 31-32. Petitioner reported that she was pleased
with her progress, although it was slow. Id. On April 5, 2016, petitioner reported pain of
1/10 and stated that she was eager to return to tennis. Id. at 33. The physical therapist
assessed her as having full PROM, AROM within normal limits, and reduced strength of
3/5. Id. The therapist noted “[s]ignificant progress the past few weeks with
improve[ment of] PROM to WNL [within normal limits]. Strength has improved to 3/5.
She would benefit from continued strengthening.” Id.
On April 7, 2016, petitioner reported a pain level of 1/10. Pet. Ex. 5 at 34. On
April 11, 2016, petitioner reported a pain level of 0-1/10 and that she was engaging in
increased activity at home without increased pain or discomfort. Id. at 35. On April 13,
2016, petitioner reported a pain level of 1/10 and noted that she was planning to play a
game of tennis in the next week in order to qualify for a state competition. Id. at 37. On
April 15, 2016, petitioner reported pain of 0/10. Id. at 38. On April 18, 2016, petitioner
reported pain of 0/10 and stated that she would be playing tennis that evening in order
to qualify for a state competition. Id. at 39. The physical therapist assessed that she
was “[p]leased with ROM. Improved strength noted. Feel this [patient] is ready to
resume tennis, however explained to [patient] that [she] may fatigue easily.” Id.
On April 20, 2016, petitioner reported pain of 0/10 and reported “playing tennis
on Monday without difficulty.” Pet. Ex. 5 at 40. At her next visit, on April 29, 2016,
petitioner reported pain of 0/10. Id. at 42. Petitioner was assessed to have right
shoulder AROM within functional limits and strength of 4+/5 overall. Id. Petitioner was
discharged and instructed to continue her home exercise program independently. Id. at
43.
On July 8, 2016, petitioner saw nurse practitioner Jillian Kimbrell for a cough.
Pet Ex. 11 at 26-29; Pet. Ex. 12 at 34-37. The records of the visit do not mention any
problems with her shoulder. Upon physical exam her musculoskeletal system was
noted to have “normal range of motion . . . no edema or tenderness.” Pet. Ex. 11 at 28;
Pet. Ex. 12 at 36. On June 15, 2017, petitioner saw Dr. William McClendon, Jr. for
sinus congestion and a sore throat. Pet. Ex. 8 at 2. She reported chronic bilateral knee
pain but the records contain no mention of a shoulder problem. Id. Thus, it appears
that while petitioner suffered a painful shoulder injury, with surgery and physical therapy
her injury had largely resolved by July 2016.
Petitioner provided testimony on the impact her injury had on a real estate
brokerage she started prior to vaccination. Tr. at 34-39. However, petitioner’s counsel
clarified during the hearing that petitioner is not making a claim for lost wages. Tr. at
40, 60.
Petitioner testified concerning the effect her shoulder injury had on her ability to
play tennis. She testified that prior to her September 2015 Tdap vaccination, she
9
played tennis three to six times per week for two to two and a half hours. Tr. at 5. She
explained that she played tennis for her physical health and for social reasons. Tr. at 6-
7.
Petitioner testified that she began playing tennis in 2000 and joined a league in
2002. Tr. at 45-46. She started on a lower level team and, over the years as she
improved, progressed to a higher level. Tr. at 46. She testified that, because of her
shoulder injury, she missed her team’s state championship. Tr. at 12-13. She testified
that her team qualified for the state championship but that she “was having surgery in –
or had the injury and was having physical therapy when that state tournament was. So I
didn’t get to go.” Tr. at 13. She testified that her team was short on players due to her
absence. Id.
Petitioner testified that on another occasion she was offered a spot on a league
tennis team but declined because of her reduced playing ability. Tr. at 7-8. At the time
of the hearing, she indicated that the team in question was “going to state next weekend
and I’m not going.” Tr. at 7-8. Petitioner testified that missing out on that tournament
made her feel like she “could produce tears right here.” Tr. at 8.
Petitioner testified that her shoulder injury also affected her ability to paint. Tr. at
22. Petitioner testified that for the past seven-eight years she has taken an interest in
painting. Id. Prior to her vaccination, she painted three or four times a week. Tr. at 23.
She testified that she was unable to paint for almost a year after her vaccination. Tr. at
27.
III. Contentions of the Parties
Petitioner seeks reimbursement of out-of-pocket medical expenses totaling
$3,143.80. Pet. Ex. 14. This amount has varied over time, but respondent has
consistently indicated a lack of objection to reimbursement of such expenses to the
extent that they are supported by documentation. See Res. Brief at 1 fn.1; Informal
Communication from Respondent’s counsel dated June 22, 2018. The undersigned
has reviewed the documentation submitted pertaining to these expenses and finds it
adequate. Thus, the undersigned finds that the total amount requested for these
expenses is reasonable.
Petitioner asserts that she is entitled to $145,000.00 for past pain and suffering
and $40,000.00 for future pain and suffering. Pet. Brief at 10. Petitioner emphasizes
that while she was recovering from her injury, her mother fell ill and entered home
hospice care. Pet. Brief at 7. Petitioner assumed the responsibility of caring for her
mother and endured “regular and consistent pain” while caring for her mother. Id.
Petitioner participated in physical therapy for four months. Id.
Petitioner also asserts that her injury has resulted in her missing out on playing
tennis, a sport which she participated in for approximately eight years prior to her
vaccination. Id. at 8. Petitioner states that she was unable to participate in a
tournament following her vaccination injury and had to relinquish her spot on the team.
Id. Petitioner states that she “never regained her pre-vaccination level of play.” Id.
Petitioner provides her United States Tennis Association statistics and states that her
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play “declined both in frequency and quality.” Id.; Pet. Ex. 8. Petitioner states that she
decided to forego playing in the 2018 season because her performance had become
“personally unacceptable.” Pet. Brief at 8. She states that a sport that formerly was
fun and exhilarating had become a “source of frustration and anxiety.” Id. Petitioner
states that she “greatly misses the camaraderie that tennis provided.” Id. at 9.
Finally, petitioner states that she was a talented painter and that her painting
suffered due to her injury. Id. She states that she “virtually ceased painting completely
for over one year, and could not produce any notable paintings until May of 2017.” Id.
Petitioner asserts that she lost her two primary sources of enjoyment, painting
and playing tennis, including the friendships and social events that came along with
them. Id. She states that she is “now an outsider to the tennis and art co-op social
circles.” Id. She states that her injury has “deprived her of enjoyment, friendship,
physical fitness, and a sense of purpose.” Id.
Respondent proposes a pain and suffering award of $95,000.00. Respondent
asserts that petitioner’s initial complaints of right shoulder pain were relatively mild and
that petitioner underwent successful arthroscopic surgery which left her feeling and
doing well post-operatively. Res. Brief at 5. Respondent notes that petitioner was able
to lift and move her 80 pound mother by February 1, 2016 and was discharged from
rehabilitation services on April 29, 2016 with no pain reported. Id.
IV. Discussion
A. Pain and Suffering Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
an award not to exceed $250,000.” § 15(a)(4). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996). Medical records are the most reliable evidence regarding a petitioner’s medical
condition and the effect it has on her daily life. Shapiro v. Sec’y of Health & Human
Servs., 101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt that the decisional law in
the vaccine area favors medical records created contemporaneously with the events
they describe over subsequent recollections.”)
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. See I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125 at *9 (Fed. Cl. Spec. Mstr. May 14, 2013), originally issued
Apr. 19, 2013 (“I.D.”) (“Awards for emotional distress are inherently subjective and
cannot be determined by using a mathematical formula”); Stansfield v. Sec’y of Health &
Human Servs., No. 93-172V, 1996 WL 300594 at *3 (Fed. Cl. Spec. Mstr. May 22,
1996) (“the assessment of pain and suffering is inherently a subjective evaluation”). In
determining an award in this case, the undersigned does not rely on a single decision or
case. Rather, the undersigned has reviewed the particular facts and circumstances in
this case, giving due consideration to the circumstances and damages in other cases
11
cited by the parties and other relevant cases, as well as her knowledge and experience
adjudicating similar cases.
In determining an award for pain and suffering and emotional distress, it is
appropriate to consider the severity of injury and awareness and duration of suffering.
See I.D., 2013 WL 2448125 at *9-11, citing McAllister v. Sec’y of Health & Human
Servs., No. 91-103V, 1993 WL 777030 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated
and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995). In evaluating these
factors, the undersigned has reviewed the entire record, including medical records,
affidavits submitted by petitioner and others, and hearing testimony.
The undersigned may also look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering this case.
See, e.g., Jane Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (July
15, 2009) (finding that “there is nothing improper in the chief special master’s decision
to refer to damages for pain and suffering awarded in other cases as an aid in
determining the proper amount of damages in this case.”) And, of course, the
undersigned also may rely on her own experience adjudicating similar claims. See
Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting
that Congress contemplated the special masters would use their accumulated expertise
in the field of vaccine injuries to judge the merits of individual claims). Pain and
suffering is not determined based on a continuum. See Graves v. Sec’y of Health &
Human Servs.,109 Fed. Cl. 579 (2013).
B. Facts and Circumstances of this Case
In the experience of the undersigned, awareness of suffering is not typically a
disputed issue in cases involving a SIRVA. In this case, neither party has raised, nor is
the undersigned aware of, any issue concerning petitioner’s awareness of suffering and
the undersigned finds that this matter is not in dispute. Thus, based on the
circumstances of this case, the undersigned determines that petitioner had full
awareness of her suffering and analyzes only the severity and duration of her suffering.
1. Severity
The evidence in this case shows that petitioner suffered a mild to moderately
painful shoulder injury, but suffered severe limitations in range of motion. She visited an
orthopedic surgeon three weeks following her vaccination complaining of pain that was
mild to moderate in severity and intermittent. She received a steroid injection at this
time.
Petitioner underwent arthroscopic surgery for her shoulder injury approximately
six weeks following her vaccination. Petitioner’s surgery was performed under general
anesthesia, and the operative report indicates that there was “significant labral
pathology.” Pet. Ex. 2 at 30, Pet. Ex. 3 at 22. Several procedures were performed.
Petitioner experienced no complications during surgery and had a good outcome
following extensive rehabilitation.
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Petitioner had numerous physical therapy sessions over the course of five
months in two different states. During this time, she rated her pain between 0-4 on a
scale of 1-10. By late January 2016, petitioner was pain-free for extended periods of
time. By early April 2016, petitioner appears to have been largely pain-free, and by mid-
April 2016 she was able to play tennis again without difficulty.
While petitioner’s pain levels during physical therapy were relatively mild, she
suffered from severe limitations in her range of motion due to her injury. At her initial
physical therapy evaluation on December 1, 2015, her passive range of motion in her
right shoulder was 75 degrees in flexion, 75 degrees in abduction, zero degrees in
external rotation, and ten degrees in internal rotation. 8 At a January 7, 2016 evaluation,
petitioner’s active range of motion in her right shoulder was 45 degrees in forward
flexion and 42 degrees in abduction. In passive range of motion, her right shoulder was
limited to 90 degrees in forward flexion, 68 degrees in abduction, and 25 degrees in
external rotation. Id. On February 26, 2016, her active range of motion in her right
shoulder had improved to 124 degrees in forward flexion and her passive range of
motion was 162 degrees in forward flexion, 52 degrees in abduction, 55 degrees in
external rotation, and 71 degrees in internal rotation.
On March 9, 2016, her active range of motion in her right shoulder was 115
degrees in flexion, 40 degrees in extension, 80 degrees in abduction, and 40 degrees in
external rotation. Id. Her passive range of motion was 120 degrees in flexion and
abduction, 45 degrees in external rotation, and 40 degrees in internal rotation. Id. Her
strength was 3-/5 in her right shoulder in all planes. She reported difficulty performing
tasks above her head such as reaching into a cabinet and brushing her hair.
On April 4, 2016, petitioner’s range of motion had returned to within normal limits
but she still had limitations in strength. By the time she completed physical therapy on
April 29, 2016, she was assessed to have active range of motion in her right shoulder
within functional limits and strength of 4+/5.
An additional factor increasing the severity in this is that petitioner underwent
rehabilitation from her injury while caring for her terminally ill mother. During this time,
the limitations of petitioner’s injury caused distress about her ability to care for her
mother, and her caretaking tasks appeared to have increased her pain levels.
Petitioner’s injury further impacted her playing in a tennis league and participating in an
art co-op, both activities which she enjoyed and which were a significant part of her
social life.
2. Duration
Petitioner’s injury was of relatively brief duration for a SIRVA, based on the
undersigned’s experience in SIRVA cases. She was vaccinated in September 2015
and appears to have recovered by July 8, 2016. In addition, she was largely pain-free
8 Normal range of motion for the shoulder is 180 degrees in flexion, 150 degrees in abduction, 90 degrees
in external rotation, and 70-90 degrees in internal rotation.
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by April 2016. This is likely attributable to the fact that she received surgical treatment
soon after her injury and underwent extensive physical therapy.
Petitioner’s limited range of motion continued until April 5, 2016 when she was
found to have full passive range of motion and active range of motion within normal
limits. Even then, her shoulder was limited in strength to 3/5. Thus, petitioner had
limitations that affected her ability to engage in her usual activities for approximately
seven to eight months.
C. Prior Pain and Suffering SIRVA Decisions
There have been six reasoned decisions by the undersigned awarding damages
in SIRVA cases where the parties were unable to informally resolve damages.
Typically, the primary point of dispute has been the appropriate amount of
compensation for pain and suffering. These decisions are:
• Desrosiers v. Sec’y Health & Human Servs., No. 16-224V, 2017 WL
5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for
pain and suffering and $336.20 in past unreimbursable medical
expenses); and
• Dhanoa v. Sec’y Health & Human Servs., No. 15-1011V, 2018 WL
1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $94,900.99 for
pain and suffering and $862.14 in past unreimbursable medical
expenses); and
• Marino v. Sec’y Health & Human Servs., No. 16-622V, 2018 WL 2224736
(Fed. Cl. Spec. Mstr. Mar. 26, 2018) (awarding $75,000.00 for pain and
suffering and $88.88 in unreimbursable medical expenses); and
• Knauss v. Sec’y Health & Human Servs., No. 16-1372V, 2018 WL
3432906 (Fed. Cl. Spec. Mstr. May 23, 2018) (awarding $60,000.00 for
pain and suffering and $170.00 in unreimbursable medical expenses); and
• Collado v. Sec’y Health & Human Servs., No. 17-225V, 2018 WL 3433352
(Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and
suffering and $772.53 in unreimbursable medical expenses); and
• Kim v. Sec’y Health & Human Servs., No. 17-418, (Fed. Cl. Spec. Mstr.
July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00
for unreimbursable medical expenses) (available on court website,
www.uscfc.uscourts.gov).
D. Amount to be Awarded for Pain and Suffering in this Case
Based upon the record as a whole, the undersigned finds that the facts and
circumstances in this case warrant an award of $125,000.00 for actual pain and
suffering. The undersigned notes that petitioner in this case underwent a steroid
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injection and surgery and required extensive rehabilitation, which occurred at a time
when she was caring for her terminally ill mother. Further, in this case petitioner’s injury
limited her participation in tennis and painting, two activities she enjoyed that provided
physical activity, friendships, and social events. While petitioner suffered a painful and
limiting injury, she had a good result from surgery and intensive physical therapy and
many of her symptoms resolved within six months of her vaccination.
Petitioner in this case has many similarities to the petitioner in Collado. In both
cases, petitioners underwent surgical repair of their shoulder injuries. The petitioner in
Collado had more severe pain levels, and suffered for longer before becoming pain-
free. However, the petitioner in this case had extenuating circumstances, caring for a
terminally ill parent and losing important social and physical outlets, especially the fact
that she missed joining her team at a state tournament because she was recovering
from her injury, and later, due to her decreased playing ability, declined a spot on a
team that ultimately went on to play in a state championship.
With respect to petitioner’s request for future pain and suffering, the undersigned
finds that petitioner has not met her burden to demonstrate that such an award is
warranted. 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). Contemporaneous
medical records generally provide the most reliable supporting documentation of a
medical condition and the effect it has on an individual’s daily life. See Shapiro v. Sec’y
of Health & Human Servs., 101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt that
the decisional law in the vaccine area favors medical records created
contemporaneously with the events they describe over subsequent recollections”), citing
United States v. U.S. Gypsum Co., 333 U.S. 364 (1948); see also Cucuras v. Sec’y of
Health & Human Servs., 993 F.2d 1525, 1528-29 (Fed. Cir. 1993) (noting that medical
records are generally contemporaneous to the medical events recorded and are
generally trustworthy records).
In this case, the record shows that petitioner obtained significant relief from
surgery and extensive physical therapy. When she was discharged from physical
therapy on April 29, 2016, petitioner’s active range of motion was within functional limits
and her strength had improved. Petitioner has not provided medical records
documenting continuing pain and suffering. Thus, petitioner has not met her burden of
establishing by preponderant evidence that she is entitled to an award for future pain
and suffering.
In this case, the undersigned awards $125,000.00 for actual pain and suffering.
V. Conclusion
For all of the reasons discussed above, and based on consideration of the
record as a whole, the undersigned finds that $125,000.00 represents a fair and
appropriate amount of compensation for petitioner’s actual pain and suffering. In
addition, the undersigned finds that petitioner is entitled to compensation for
$3,143.80 in past unreimbursable medical expenses.
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Based on the record as a whole and arguments of the parties, the undersigned
awards petitioner a lump sum payment of $128,143.80 in the form of a check
payable to petitioner, Leslie Dobbins. This amount represents compensation for all
damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 9
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
9 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.
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