Lang v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-995V
Filed: July 25, 2022
PUBLISHED
Special Master Horner
CHERI LANG,
Petitioner, Ruling on Damages; Shoulder
v. Injury Related to Vaccine
Administration (“SIRVA”);
SECRETARY OF HEALTH AND Influenza (“Flu”) vaccine
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON DAMAGES 1
On July 24, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, 2 et seq., (“the Vaccine
Act”). (ECF No. 1.) Petitioner alleged that she suffered from a shoulder injury related to
vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine she received
on October 11, 2016. (Id.) On December 11, 2020, I issued a decision finding that
petitioner was entitled to compensation for her SIRVA. (ECF No. 87.) The parties were
unable to informally resolve the issue of damages leading petitioner to file a motion for a
ruling on the record for damages on November 22, 2021. (ECF No. 109.) Respondent
filed his response to the motion on February 7, 2022, and petitioner filed her reply on
February 22, 2022. (ECF Nos. 111, 112.) Petitioner’s motion is now ripe for a ruling on
the record.
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa-
10-34.
1
I. Relevant Medical History
a. As Reflected in the Medical Records
Prior to the vaccination at issue, petitioner was a relatively healthy 45-year old
woman with no significant medical history. She was capable of lifting over fifty pounds
and had received the flu vaccine for years without issue. (Ex. 2, p. 6.) On October 11,
2016, petitioner received a flu vaccine at her place of employment, Dawn Food
Products. (Ex. 1, p. 1.)
About two and a half months later, petitioner presented to Dr. Rebecca Kelley at
SSM Family Healthcare (“SSM”) on December 28, 2016. (Ex. 2, p. 5.) Petitioner’s chief
complaint was “pain in her right deltoid.” (Id.) She reported that she had experienced
this pain “since receiving flu shot on 10-11-16” and that her “pain is worse if [she] raises
the arm.” (Id.) Petitioner described her pain as gradually worsening, dull, and constant.
(Id. at 6.) Petitioner reported that her pain was 2/10 while resting, and 6/10 when
raising her arm. (Id.) Dr. Kelley’s exam revealed decreased abduction, flexion,
extension, internal rotation, and external rotation in petitioner’s right shoulder. (Ex. 2, p.
8.) Although petitioner reported pain in her right shoulder, her muscle strength was only
somewhat diminished, showing 4/5 strength in her flexion, extension, adduction,
abduction, external rotation, and internal rotation, and 5/5 strength in her scapula
elevation, retraction, and protraction. (Id.) Follow up MRI on January 12, 2017
revealed a mild interstitial tear and small subchondral cyst in the humeral head, but
nothing remarkable in her AC joint. (Ex. 4, p. 19.)
On January 19, 2017, petitioner was evaluated for physical therapy at Peak Sport
and Spine. (Ex. 3, p. 7.) She described her pain as 2/10 at best and 7/10 at worst. (Id.
at 7, 8.) Petitioner was scheduled for four weeks of physical therapy with two sessions
per week. (Id. at 9.) By January 24, 2017, petitioner indicated that she was improving,
and by February 14, she was tolerating her physical therapy without pain or difficulty.
(Id. at 11, 28.)
Petitioner received an orthopedic evaluation at SSM from Nurse Practitioner
(“NP”) Carrie Lucas and Dr. Richard White on February 21, 2017. (Ex. 6, p. 1.) During
this evaluation, petitioner reported that her physical therapy had “helped a little,” but that
she still experienced daily pain, specifically when lifting. (Id.) Petitioner’s exam
revealed tenderness to palpation over her lateral shoulder with a “deep pain,” mild
tenderness of the AC joint and biceps tendon, full active range of motion, pain with
abduction, normal strength, and a positive impingement test. (Id. at 2.) Reviewing
petitioner’s MRI, NP Lucas noted a subtle abnormality in the supraspinatus consistent
with tendinopathy and in the humeral head consistent with impingement. (Id.)
Petitioner was diagnosed with rotator cuff impingement syndrome and received a
steroid injection in her subacromial space. (Id. at 3.)
2
Petitioner was again seen by NP Lucas on April 4, 2017. (Ex. 6, p. 10.) During
this visit petitioner reported that the steroid injection she received during her previous
visit reduced her pain for approximately two weeks, but that it had since returned. (Id.)
Petitioner reported that she had pain even at rest, but no pain past her elbow, no
numbness, and occasional neck stiffness related to the way she postured her shoulder
to account for her pain. (Id.) Petitioner showed full range of motion and did not appear
to have tenderness to palpation at the AC joint but did show tenderness in the bicipital
groove. (Id.) NP Lucas noted that physical therapy, home exercises, and subacromial
steroid injections all failed to resolve petitioner’s pain and scheduled an MRI arthrogram
to evaluate for a labral pathology. (Id. at 11.)
Petitioner received an MRI arthrogram on April 14, 2017, which showed no
rotator cuff tears, mild increased signal in the supraspinatus consistent with tendinosis,
minimal fluid in the subacromial and subdeltoid bursa, mild deformity of the superior
labrum, and a small subchondral cyst near the supraspinatus insertion. (Ex. 4, p. 42.) It
was noted that it was uncertain whether petitioner’s mild labrum deformity was due to a
“normal variation” or labral injury. (Id.)
Petitioner returned to Peak Sport and Spine for her final appointment on April 14,
2017. (Ex. 3, p. 33.) During this visit, petitioner reported that her pain had decreased to
a 2/10 at worst, and that she was able to perform daily activities and work activities with
little or no pain. Petitioner’s discharge assessment noted that she exhibited “an
excellent prognosis at time of discharge from skilled rehabilitative therapy in conjunction
with a home exercise program.” (Id.)
Petitioner was seen on April 27, 2017 by orthopedic surgeon Dr. Tameem
Yehyawi of Columbia Orthopedic Group. (Ex. 5, p. 7.) She explained to Dr. Yehyawi
the medical treatment she had received up to that point and indicated that she did not
believe the steroids or physical therapy had worked due to the fact that her pain
persisted. (Id.) Petitioner described her pain as a “constant dull ache that feels deep
within the joint.” (Id.) Dr. Yehyawi noted some localization of petitioner’s pain over the
lateral aspect of her shoulder that worsened with overhead activity and external rotation.
(Id.) Petitioner denied any weakness, stiffness, numbness, or paresthesia. (Id.) During
this exam, petitioner described her pain as 4/10 and characterized the sensation as
aching and shooting. (Ex. 5, p. 7-8.) Dr. Yehyawi noted that petitioner had “an
excellent range of motion” but showed painful Hawkins and Neer impingement tests.
(Id. at 8.) Dr. Yehyawi believed that the majority of petitioner’s pain was coming from
her rotator cuff and bursitis that was “triggered by a flu shot with inflammation there.”
(Id. at 9.) Dr. Yehyawi believed that, due to the failure of other conservative treatments,
surgery was the best option for petitioner. (Id.) Petitioner received arthroscopic
shoulder surgery including rotator cuff debridement, subacromial decompression with
acromioplasty, labrum debridement, and a bursectomy on June 19, 2017. (Ex. 7, pp. 1,
4.)
Following her surgery, petitioner began a new round of physical therapy on July
5, 2017 with therapist Calvin Canine at Peak Sport and Spine. (Ex. 28, p. 5.) On July
3
25, 2017, petitioner was again seen by Dr. Yehyawi, and reported that physical therapy
had mildly improved her range of motion, but that her lateral shoulder discomfort
persisted. (Ex. 11, p. 1.) Dr. Yehyawi believed that this would resolve with time. (Id.)
Petitioner completed her post-operation physical therapy on August 30, 2017. (Ex. 28,
p. 53.) Petitioner’s final physical therapy record notes that she was able to tolerate all
exercises with mild pain and recommended continued home exercise. (Id. at 51.)
Petitioner saw Dr. Yehyawi for several post-surgery follow-up exams between
September and December of 2017. (Ex. 13, p. 1, 2-3, 4-5, 6-8.) On September 5, Dr.
Yehyawi observed that petitioner only felt pain at the extremes of flexion and abduction
but was otherwise pain free. (Id. at 1.) On October 17, petitioner reported that her pain
was improving and that she was making progress, but still experienced some pain with
certain movements. (Id. at 2.) Dr. Yehyawi administered a cortisone injection into
petitioner’s subacromial space without complication. (Id. at 3.) On November 21,
petitioner indicated that the October 17 cortisone injection provided temporary relief but
that her pain returned within a week. (Id. at 4.) Dr. Yehyawi noted that petitioner
experienced some pain as a result of her rotator cuff tendinopathy but believed that the
primary pain she complained of was coming from the AC joint. (Id. at 5-6.)
Petitioner’s final post-surgery follow-up with Dr. Yehyawi was on December 28,
2017. (Ex. 13, p. 6-8.) During this visit, Dr. Yehyawi reported that petitioner had
“developed symptoms over the [AC] joint that were not necessarily present prior to her
first surgery. Her pain is localized there.” (Id. at 7.) Further, Dr. Yehyawi noted that
petitioner’s AC joint injection alleviated her pain for around nine days, but that it had
returned. (Id.) Dr. Yehyawi again felt that the best course of action was surgery, and
petitioner agreed. (Id. at 8.)
Petitioner underwent a right shoulder arthroscopy with distal right clavicle
resection on January 29, 2018 to treat “right shoulder [AC] joint arthritis.” (Ex. 14, p. 1.)
On March 13, 2018, Dr. Yehyawi indicated that petitioner had no pain at rest, but that
she may continue to experience occasional soreness due to her mild rotator cuff
tendinopathy. (Ex. 15, p. 3.) On April 24, 2018, petitioner indicated that she was “much
better than before surgery.” (Ex. 20, p. 1.)
Petitioner returned to Dr. Yehyawi on August 2, 2018, complaining of continued
discomfort in her anterolateral shoulder and AC joint. (Ex. 22, p. 1.) Dr. Yehyawi
believed that petitioner was suffering from an AC arthritis flare up and planned for an
ultrasound guided steroid injection. (Id.) Petitioner’s physical examination revealed
decreased range of motion, 130 degrees flexion, and minimal discomfort with Hawkins
and Neer testing. (Id. at 2.) Dr. Yehyawi concluded that petitioner now presented “with
some inflammation potentially from some scar tissue in the [AC] joint with some crepitus
and discomfort there as well as rotator cuff tendinopathy.” (Id. at 2.)
By August 30, 2018, Dr. Yehyawi could no longer explain petitioner’s discomfort.
(Ex. 26, pp. 1-2.) Instead, he ordered anti-inflammatories and an MRI. (Id.) Several
days later, on September 5, 2018, Dr. Yehyawi noted that petitioner still had an
4
insertional cyst in her infraspinatus. (Id. at 3.) He also believed that petitioner’s
“primary pain generator” was persistent rotator cuff tendinopathy and some bursitis that
had reformed. (Id.) Dr. Yehyawi’s conclusion notes that petitioner had suffered
“months and months of significant pain and inflammation as she had a flu shot which set
off an inflammatory storm throughout her rotator cuff and significant pain that persisted
for several months.” (Id.) Dr. Yehyawi recommended physical therapy, an MRI, and a
course of anti-inflammatories to manage petitioner’s pain. (Id. at 2.)
Petitioner began another round of physical therapy on September 12, 2018 at
Peak Sport and Spine. (Ex. 27, p. 75.) Although the physical therapist indicated
January 29, 2018 as the date of onset for petitioner’s pain, they also noted “a long
history of initial onset [from] 10-11-16 after a flu shot in the right shoulder. . . .’” (Id.)
Petitioner’s physical therapist noted “popping, crunching with elevation” and some right
shoulder weakness. (Id. at 76-77.)
On December 3, 2018, petitioner was examined by orthopedist Dr. Christopher
Farmer. (Ex. 26, p. 9.) Petitioner’s exam revealed a mildly flared AC joint and mild
rotator cuff tendinopathy. (Id.) He discussed potential treatment options including oral
and injectable medications, therapy, additional imaging, and surgery. (Id. at 10.)
Petitioner chose to receive an injection of Autologous Conditioned Plasma (“ACP”) into
her right shoulder. (Id.) Petitioner was seen again by Dr. Farmer on December 31,
2018. (Id. at 12.) At that time, Dr. Farmer believed petitioner was suffering from
adhesive capsulitis based on her complaints of stiffness. (Id.) He prescribed an oral
steroid and encouraged continued home exercise. (Id.)
Dr. Farmer followed up with petitioner one month later, on January 31, 2019.
(Ex. 26, p. 14.) Petitioner reported that the oral steroid provided relief for her shoulder
pain and that her symptoms had not worsened. (Id.) On April 16, 2019, Dr. Farmer
noted that petitioner had almost full abduction and flexion with a “much better” range of
motion in her right shoulder. (Ex. 29, p. 2.) Petitioner’s internal rotation was mildly
painful, but without weakness. (Id.) Dr. Farmer believed that petitioner was suffering
from a mildly flared AC joint and mild rotator cuff tendinopathy. (Id.) He recommended
a glenohumeral injection and home exercise. (Id.)
Dr. Farmer saw petitioner for the last time on June 13, 2019. (Ex. 29, p. 4.)
During this visit, he indicated that the only option left to diagnose petitioner’s shoulder
pain was to check for underlying neurogenic causes. (Id.) Consequently, Dr. Farmer
ordered a nerve conduction test which showed no abnormalities. (Id.) He concluded
that petitioner was simply suffering from a chronic impingement syndrome in the AC
joint and that “we may just have to consider her to be at maximal medical improvement.”
(Id.)
Following treatment from Dr. Farmer, petitioner sought another evaluation of her
shoulder, this time from Dr. Matthew Smith. (Ex. 38, p. 1.) Petitioner rated her pain as
a 3/10 at this visit and described it as a “deep aching.” (Id.) She related a medical
history of two shoulder surgeries, and pain following her flu shot. (Id.) Dr. Smith
5
observed good rotator cuff strength, but deltoid atrophy and mid-arm pain. (Id. at 2.)
Dr. Smith ordered an MRI, which revealed mild infraspinatus and subscapularis
tendinosis and mild glenohumeral osteoarthritis. (Id. at 2, 4.)
Petitioner had an ultrasound-guided right suprascapular nerve block procedure
on November 27, 2019. (Ex. 38, p. 9.) She was seen by Dr. Smith for a follow-up on
December 23, 2019. (Id. at 5.) Petitioner reported that the nerve block did not help her
pain at all. (Id.) Dr. Smith noted that petitioner’s pain was “potentially the result of a
post vaccine inflammatory neuropathy” and referred her to pain management for further
evaluation. (Id. at 6.)
A report from Dr. Ebby George Varghese dated January 13, 2020, indicates that
it is unlikely petitioner will ever be pain free, prescribed Neurontin, a nerve-pain
management drug, and noted that “her shoulder is not the same shoulder she had prior
to her flu shot.” (Ex. 48, pp. 2-3.) Petitioner continues to be symptomatic and treats her
chronic shoulder pain with tramadol (a narcotic) under the care of a nurse practitioner at
a pain management center. (Exs. 50, 53-54.) As of May 11, 2021, the nurse practitioner
reports that “[w]e have no further procedure options for her. We plan on continuing
medication management with at least [a] visit every 6 months to manage her continued
pain. We believe she will continue on her current medication regiment for the
foreseeable future.” (Ex. 51.)
b. As Reflected in Affidavits and Declarations
In her first affidavit dated August 15, 2017, petitioner indicated that her flu shot
was painful. (Ex. 10, p. 1.) Anticipating that the pain would subside, petitioner
prioritized care for her daughter and put off seeking care for her own pain. (Id.)
However, by about Christmastime, petitioner felt her pain was “excruciating” and sought
care. (Id.) Petitioner indicated that she has “constant” pain that has prevented her from
participating in her daughter’s active lifestyle (citing bowling and spotting her during
gymnastics). (Id.) She also reported that the injury has affected her job as an inventory
analyst, preventing her from lifting 30–50-pound bags and boxes and causing her typing
responsibilities to be painful. (Id. at 1-2.) Petitioner also described the effect her injury
had on her wedding and honeymoon occurring during this period and the financial toll
her injury has had due to her high deductible insurance plan. (Id. at 2.) In her
supplemental affidavit, petitioner explained that as of December 29, 2019, her
orthopedist had concluded she had no further treatment options and referred her to a
pain management clinic in January of 2020. (Ex. 52, p. 1.)
Additionally, several witness declarations were filed in this case. (Exs. 31-33.)
These declarations focus on the fact that petitioner experienced immediate pain
following her vaccination despite her more than two-month delay in seeking treatment.
They do not speak to the longer-term course of petitioner’s condition.
6
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). Finally, petitioners who
have had their earning capacity adversely impacted due to their vaccine injury may
receive “compensation for actual and anticipated loss of earnings determined in
accordance with generally recognized actuarial principles and projections.” Section
15(a)(3)(A). The petitioner bears the burden of proof with respect to each element of
compensation requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V,
1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
There is no mathematic formula for assigning a monetary value to a person’s
pain and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No.
04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain
and suffering is inherently a subjective evaluation”). In general, factors to be considered
when determining an award for pain and suffering include: 1) awareness of the injury; 2)
severity of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9
(quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030,
at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
F.3d 1240 (Fed. Cir. 1995)). However, for SIRVA claims – cases involving competent
adults suffering only orthopedic injuries – awareness of the injury is generally not
considered a significant factor. See e.g. Lawson v. Sec’y of Health & Human Servs.,
No. 18-882V, 2021 WL 688560, at *4 (Fed. Cl. Spec. Mstr. Jan. 5, 2021); Welch v.
Sec’y of Health & Human Servs., No. 18-74V, 2021 WL 1795205, at *3 (Fed. Cl. Spec.
Mstr. Apr. 5, 2021); McDorman v. Sec’y of Health & Human Servs., No. 19-814V, 2021
WL 5504698, at *2 (Fed. Cl. Spec. Mstr. Oct. 18, 2021).
Special masters may also consider prior awards when determining what
constitutes an appropriate award of damages. See, e.g., Doe 34 v. Sec’y of Health &
Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in
the chief special master’s decision to refer to damages for pain and suffering awarded in
other cases as an aid in determining the proper amount of damages in this case.”);
Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(explaining that Congress contemplated that special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual
claims). Importantly, however, while potentially persuasive, decisions regarding prior
awards are not binding. See Nance v. Sec'y of Health & Human Servs., No. 06–730V,
7
2010 WL 3291896, at *8 (Fed. Cl. Spec. Mstr. July 30, 2010); Hanlon v. Sec'y of Health
& Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are neither bound by
their own decisions nor by cases from the Court of Federal Claims, except, of course, in
the same case on remand.”).
III. Party Positions
a. Petitioner’s Motion
Based largely on the explanation contained in her first affidavit, petitioner
contends that she has been “profoundly” aware of her injury from the time of onset.
(ECF No. 109, p. 13.) Additionally, she stresses that the severity of her injury is
evidenced by her “two surgeries, five steroid injections, multiple MRIs, and dozens of
physical therapy sessions – none of which were successful in curing her pain.” (Id.)
Petitioner notes that as of the filing of her motion she has been enduring this pain and
suffering for more than five years and with “little if any” hope of a full recovery. (Id. at
13-14.)
Petitioner requests an award of $215,000.00 for actual pain and suffering and
$2,500 per year for the remainder of petitioner’s life reduced to the present net value for
future pain and suffering. 3 (Id. at 14.) Petitioner argues that her requested award is
reasonable in light of the facts of this case and consistent with prior SIRVA awards.
Specifically, petitioner cites the following reasoned decisions as reflecting comparable
facts: Schoonover v. Sec’y of Health & Human Servs., No. 16-1324V, 2020 WL
5351341 (Fed. Cl. Spec. Mstr. Aug. 5, 2020) (awarding $200,000.00 in actual pain and
suffering and $1,200.00 per year for future pain and suffering); Lawson v. Sec’y of
Health & Human Servs., No. 18-882V, 2021 WL 688560 (Fed. Cl. Spec. Mstr. Jan. 5,
2021) (awarding $205,000.00 for pain and suffering); Welch v. Sec’y of Health & Human
Servs., No. 18-74V, 2021 WL 1795205 (Fed. Cl. Spec. Mstr. Apr. 5, 2021) (awarding
$210,000.00 for pain and suffering); McDorman v. Sec’y of Health & Human Servs., No.
19-814V, 2021 WL 5504698 (Fed. Cl. Spec. Mstr. Oct. 18, 2021) (awarding
$200,000.00 for pain and suffering); and Elmakky v. Sec’y of Health & Human Servs.,
No. 17-2032V, 2021 WL 6285619 (Fed. Cl. Spec. Mstr. Dec. 3, 2021) (awarding
$205,000.00 for pain and suffering). Petitioner cites these prior awards primarily due to
the fact of these petitioners having undergone multiple surgeries. 4 (ECF No. 109, pp.
14-15.) She contends that her case is the most severe and longest lasting as compared
to these cited cases, warranting a higher award. (Id. at 15.)
Petitioner also requests $4,209.59 for lost wages, and $4,847.18 for
unreimbursed out-of-pocket expenses. (Id. at 16.)
3 Using her remaining life expectancy of 34.5 years. (ECF No. 109, n. 2 (citing https://www.ssa.gov/cgi-
bin/longevity.cgi (last visited November 22, 2021).)
4 Petitioner also cited a prior stipulated settlement of $200,000.00. (Id. at 15.)
8
b. Respondent’s Response
Respondent devotes a significant portion of his response to discussing the
Vaccine Act’s statutory $250,000.00 cap for noneconomic damages. Respondent notes
that prior to 2013, special masters routinely reserved the statutory maximum damages
for the most severely injured petitioners. (ECF No. 111, pp. 11-12.) Following the Court
of Federal Claims decision in Graves v. Secretary of Health and Human Services,
however, that approach was called into question. 109 Fed Cl. 579 (2013). In Graves,
the Court rejected the prior approach as “artificially and arbitrarily” limiting damages and
instead indicated that damages should be determined in the first instance without
respect to the statutory cap. Id. at 589-90. Respondent “agrees with Graves to the
extent it calls for an individualized assessment of damages based on the specific facts
of petitioner’s case. However, to the extent Graves is interpreted to endorse a
methodology that would result in the vast majority of Vaccine Act claimants recovering
the statutory maximum amount for pain and suffering, respondent disagrees, because
that is clearly inconsistent with the legislative history.” (ECF No. 111, pp. 12-13.)
With regard to this case, respondent stresses that “petitioner delayed seeking
initial treatment. While she has participated in a variety of treatment modalities for her
right shoulder injury, she maintains full time employment. She has experienced modest
pain levels and has satisfactory range of motion in her right extremity. She has not
returned to the orthopedist in two years.” (ECF No. 111, p. 19.) Additionally,
respondent contends that, even if petitioner’s degenerative changes did not defeat her
claim with respect to entitlement, they should be considered in assessing her damages.
(Id. at 20.) Respondent argues that despite her reports of ongoing pain, petitioner
exhibited full range of motion after only four months (citing Ex. 6, p. 1) and was able to
perform her activities of daily life with little to no pain (citing Ex. 3, p. 33). (Id.)
Respondent contends that, beginning in November of 2017, petitioner’s pain was
attributed to acromioclavicular (“AC”) joint arthritis after her prior June 2017 arthroscopic
surgery had largely resolved her pain, except for at the extremes of flexion and
abduction. (Id. at 20-11 (citing Ex. 13, pp. 1, 4-5).) Respondent stresses that the
second surgery was in treatment of the AC joint arthritis. (Id. at 20 (citing Ex. 14, p. 1).)
By the time petitioner began treatment with the pain management center, she was
“highly functional” and working full time. (Id. (citing Ex. 48).)
Respondent contends the prior SIRVA awards cited by petitioner are
distinguishable. (Id. at 21-23.) Specifically, the Schoonover petitioner did not delay in
seeking treatment, reported severe pain, had reduced range of motion, and had a 40%
permanent partial disability. (Id. at 22 (citing Schoonover, 2020 WL 5351341, at *4-5).)
The Lawson petitioner likewise did not delay in seeking treatment, underwent three
surgeries, was fired from her job, and was unable to complete simple tasks such as
outstretching her arms. (Id. at 22-23 (citing Lawson, 2021 WL 688560, at *1, 3, 5).)
The Welch petitioner had a more extensive surgery, a reverse total shoulder
replacement, was caring for her terminally ill husband while affected by her SIRVA and
had to retire early due to pain and emotional distress. (Id. at 23 (citing Welch, 2021 WL
1795205, at *1-3).) The McDorman petitioner did not delay in seeking treatment, had a
9
greater number of steroid injections, and suffered bilateral shoulder pain due to
overreliance on her unaffected arm. (Id. (citing McDorman, 2021 WL 5504698, at *3-
4).) Like the Lawson petitioner, the Elmakky petitioner underwent three surgeries. (Id.
(citing 2021 WL 6285619, at *6).) Respondent additionally notes that the Lawson
petitioner suffered a SLAP tear which caused the chief special master to question
whether all of her sequela were SIRVA-related. According to respondent, the same
logic should apply in the instant case due to petitioner’s AC arthritis. (Id. at n. 15 (citing
Lawson, 2021 WL 688560, at *6).)
Despite distinguishing each of the cases cited by petitioner, respondent did not
cite any other cases that he views as comparable. Respondent proposes that petitioner
should be awarded $180,000.00 in actual pain and suffering. Respondent contends
that petitioner should not be awarded any damages for future pain and suffering. And
although Respondent argues that petitioner’s lost wages claim is not adequately
documented; he contends that, “[i]f the Court is inclined to make an award of damages
for lost earnings based on the form of the evidence currently provided, respondent
states that the appropriate amount for lost earnings is $3,059.11.” (Id. at 24.)
Respondent agrees that petitioner should be awarded $4,847.18 for unreimbursed out-
of-pocket expenses. (Id. at n. 1.)
c. Petitioner’s Reply
Petitioner is critical of respondent’s discussion of the prior Graves decision.
Petitioner contends that Graves “while not specifically binding on the special masters, is
legally correct and has become the law of the Program.” (ECF No. 112, p. 2.)
Citing a prior onset ruling by the Chief Special Master, petitioner urges that she
should not be penalized for her delay in seeking treatment. (Id. at 4-5 (citing Wyffels v.
Sec’y of Health & Human Servs., No. 18-1874, 2021 WL 798834, at *4 (Fed. Cl. Spec.
Mstr. Jan. 26, 2021)).) Petitioner asserts that her affidavit explains why her delay in
seeking treatment was reasonable. (Id.)
Petitioner suggests that respondent “tries to downplay” her pain and suffering by
noting her full range of motion as of February 21, 2017. (Id. at 5.) Petitioner counters
that administration of a steroid injection at that visit demonstrates her ongoing pain. (Id.
(citing Ex. 6, p. 2).) Petitioner stresses that she had five steroid injections and a nerve
block and further notes that petitioner reported to Dr. Yehyawi on April 27, 2017 that her
first steroid injection provided relief for only two weeks. (Id. at n. 2, p. 6.) She contends
that the need for surgery in June of 2017 shows the failure of conservative measures.
(Id. at 6.)
Petitioner also disputes respondent’s characterization of petitioner’s condition
from November 2017 onward. Whereas respondent focused on AC arthritis, petitioner
contends that Dr. Yehyawi never eliminated petitioner’s SIRVA as a cause of her
continuing pain and that Dr. Varghese continued to attribute petitioner’s pain to her prior
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flu vaccine even after her second surgery. (Id. at 6-7 (citing Ex. 13, p. 7; Ex. 14, p. 3;
Ex. 48).)
Additionally, petitioner further elaborates in her reply why the prior cases she
cited in her initial motion should be considered comparable despite respondent’s
competing interpretation. (Id. at 7-8.) Finally, petitioner asserts that “[t]o the best of
petitioner’s knowledge and research, with only one exception, the SPU has never
awarded a petitioner who suffered more than one surgery less than $200,000.00 in past
pain and suffering.” (Id. at 8.) Petitioner acknowledges that the petitioner in M.W. v.
Secretary of Health & Human Services was awarded $195,000.00 for actual pain and
suffering but contends that the case is distinguishable due to a two-year gap in
treatment. (Id. at 8-9 (citing No. 18-267V, 2021 WL 3618177 (Fed. Cl. Spec. Mstr. Mar.
17, 2021)).)
IV. Additional Background Regarding SIRVA Damages
The majority of SIRVA cases resolve within the Special Processing Unit or “SPU”
which is overseen by the Chief Special Master. In a recently published decision
awarding damages, the Chief Special Master explained as of January of 2022 that
2,306 SIRVA cases had been compensated within the SPU since its inception in July of
2014. See Winkle v. Sec’y of Health & Human Servs., No. 20-485V, 2022 WL 221643,
at *3 (Fed. Cl. Spec. Mstr. Jan. 11, 2022). Among those cases, 88 were awarded
compensation based on a reasoned decision of the special master. Id. As explained
above, petitioner has cited just six of these prior decisions while respondent has not
cited any prior SIRVA awards. Among the above-referenced 88 decisions, the Chief
Special Master has explained that the awards for actual pain and suffering have ranged
from $40,000.00 to $210,000.00, with a median award of $94,000.00. Five prior cases
awarded future pain and suffering, with yearly awards ranging from $250 to $1,500 per
year. Id.Unsurprisingly, stipulated and proffered awards cover a much larger range – from
$5,000 for the lowest stipulated amount to $1,845,047.00 for the highest proffered
award. Winkle, 2022 WL 221643, at *3. Of course, these amounts are not limited to
pain and suffering awards. Moreover, as the Chief Special Master observed “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.” Id. (emphasis original).
While petitioner has cited most of the prior SIRVA awards that involved
petitioners who had multiple surgeries, two additional decisions have been published
subsequent to the briefing in this case. Meirndorf v. Secretary of Health & Human
Servs., No. 19-1876V, 2022 WL 1055475 (Fed. Cl. Spec. Mstr. Mar. 7, 2022) (awarding
$200,000.00 for pain and suffering); Lavigne v. Sec’y of Health & Human Servs., No.
19-1298V, 2022 WL 2275853 (Fed. Cl. Spec. Mstr. May 12, 2022) (awarding
$198,000.00 for pain and suffering). These two cases remain consistent with
petitioner’s observation that the $195,000.00 award in M.W. is the lowest pain and
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suffering award made to a petitioner who underwent multiple surgeries. (ECF No. 112,
pp. 8-9.)
From among the available prior reasoned decisions, the closest award to the
$180,000.00 proposed by respondent for this case is that of Hooper v. Secretary of
Health and Human Services, in which the petitioner was awarded $185,000.00 for past
pain and suffering along with an additional award for future pain and suffering. No. 17-
12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019). The Hooper petitioner
underwent a single surgery but had a poor outcome, resulting in a 50% disability due to
reduced range of motion. Id. at *9-10. To my knowledge, all of the remaining reasoned
decisions awarded damages lower than what respondent agrees is appropriate in this
case.
V. Discussion
a. Actual (Past) Pain and Suffering
Given that pain and suffering is inherently subjective, and given the number of
variables involved in assessing each petitioner’s medical history, direct comparison to
other cases is very difficult. Nonetheless, petitioner is persuasive in suggesting that
there is a relevant body of caselaw involving at least somewhat similarly situated
petitioners, i.e., petitioners suffering the same injury and having a course of treatment
that includes multiple surgeries. Given that SIRVAs can and often do resolve without
any surgery at all, it is clear that those cases involving multiple surgeries are
distinguishable as representing a group of more seriously injured petitioners. As
petitioner notes, reasoned decisions addressing these cases have awarded pain and
suffering damages ranging from $195,000.00 to $210,000.00, clearly the upper end of
reasoned SIRVA awards. In addition to providing some evidence of the severity of
dysfunction underlying the petitioner’s condition, surgeries are further traumas to the
body that, although ultimately beneficial in the longer term, are associated with recovery
periods that contribute additional pain and suffering in themselves.
Respondent, by contrast, seeks to distinguish each of the cases cited by
petitioner based on varying factual distinctions. However, respondent’s specific
proposal seeking an award of $180,000.00 is more difficult to understand. Respondent
contends that factually this case suggests a less severe injury than those presented in
the prior cases relied upon by petitioner. However, respondent proposes an award in
this case that is higher than what he proposed in any of those prior cases. Schoonover,
2020 WL 5351341, at *2 (noting respondent proposed an award of $165,000.00);
Lawson, 2021 WL 688560, at *4 (noting respondent declined to propose an award);
Welch, 2021 WL 1795205, at *4 (noting respondent proposed an award of
$166,500.00); McDorman, 2021 WL 5504698, at *4 (noting respondent proposed an
award between $135,000.00 and $160,000.00); Elmakky, 2021 WL 6285619, at *4
(noting respondent proposed an award of $155,000.00). Moreover, despite having the
institutional knowledge of well over 2,000 prior SIRVA cases resolved (see Winkle,
supra), respondent has not identified any other case as being similar. Additionally,
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respondent’s proposal is likely informed in part by his explicit argument that higher
awards should be reserved for other types of more catastrophic injuries. (ECF No. 111,
p. 14.) However, as discussed in Graves, that approach leads to arbitrary results. 109
Fed Cl. at 589-90. Moreover, even though it is not binding, special masters have
consistently followed Graves for close to a decade now. See, e.g., Issertell v. Sec’y of
Health & Human Servs., No. 20-0099V, 2022 WL 2288247, at *2 (Fed. Cl. Spec. Mstr.
May 17, 2022); Desai v. Sec’y of Health & Human Servs., No. 14-811V, 2020 WL
8768069, at *7 (Fed. Cl. Spec. Mstr. Dec. 21, 2020); Knudson v. Sec’y of Health &
Human Servs., No. 17-1004V, 2018 WL 6293381, at *7 (Fed. Cl. Spec. Mstr. Nov. 7,
2018).
Respondent also brings forward several factual issues that he contends should
bear on the appropriate pain and suffering award in this case. These issues are
petitioner’s delay in seeking treatment, her largely intact range of motion, and the fact
that her second surgery was at least in part attributable to arthritis. I shall address each
in turn.
Prior cases have noted that a delay in seeking treatment, even while not
necessarily informative regarding onset and entitlement, may nonetheless still be
relevant to assessing the severity of pain and suffering. See Marino v. Sec’y of Health
& Human Servs., No. 16-622V, 2018 WL 2224736, at *8 (Fed. Cl. Spec. Mstr. Mar. 26,
2018); Eshraghi v. Sec’y of Health & Human Servs., No. 19-39V, 2021 WL 2809590, at
*3 (Fed. Cl. Spec. Mstr. June 4, 2021). In this case, however, petitioner’s delay in
seeking treatment was less than three months, which is not unheard of among SIRVA
cases, even those receiving above median awards. See e.g., Vaccaro v. Sec’y of
Health & Human Servs., No. 19-1883V, 2022 WL 662550, at *3 (Fed. Cl. Spec. Mstr.
Feb. 2, 2022) (93-day delay); Dawson-Savard v. Sec’y of Health & Human Servs., No.
17-1238V, 2020 WL 4719291, at *2 (Fed. Cl. Spec. Mstr. July 14, 2020) (106-day
delay); Rafferty v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956,
at *2-3 (Fed. Cl. Spec. Mstr. May 21, 2020) (54-day delay). Moreover, petitioner
reasonably explains that several factors beyond her degree of pain contributed to this
delay. Specifically, petitioner averred that she thought her condition may be temporary,
she was already taking time off of work to take her daughter to medical appointments
during this period, and she had a high deductible insurance plan. (Ex. 47, p. 1.)
All of this suggests that the delay in seeking treatment should not in itself imply
that petitioner’s pain was, in effect, bearable. However, when petitioner did begin to
seek care, she reported that her pain had worsened only gradually and rated her pain
as only 2/10 while resting and 6/10 when raising her arm. (Ex. 2, pp. 5-6.) Petitioner
provided similar pain ratings at her first physical therapy evaluation the following month.
(Ex. 3, pp. 7-8.) By the time she completed her initial course of physical therapy in April
of 2017 she was rating her pain as a 2/10 at worst, though she subsequently reported
pain of 4/10 to her orthopedist. (Ex. 6, p. 12; Ex. 5, pp. 7-8.) Thus, in addition to initially
delaying her treatment, petitioner also was not reporting severe pain to her physicians.
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Neither the delay in seeking treatment nor the numerical pain ratings are
dispositive; however, when considering the course of petitioner’s medical history as a
whole, it is the persistence rather than the severity of petitioner’s pain that stands out.
The severity of petitioner’s shoulder pain seems to be best characterized as relatively
moderate for a SIRVA. Petitioner stresses in her briefing the failure of her multiple
steroid injections and her ultimate resort to narcotic pain relief. (ECF No. 109, pp. 14,
16; ECF No.112. pp. 5 n. 2, 6.) However, these factors speak to the ultimate chronicity
of her pain as much or more so than the severity.
A related disagreement between the parties is the significance of petitioner’s
range of motion. Respondent argues that, overall, petitioner did not have substantial
limitations in her range of motion. (ECF No. 111, p. 19.) Petitioner does not directly
contradict that contention but urges that this should not obscure the fact that she
continued to report ongoing pain regardless. (ECF No. 112, p. 5.) Here, both parties
are correct. It is clear that a reduced range of motion in the shoulder is a factor that can
have its own effect on a petitioner’s quality of life and pain and suffering. See, e.g.,
Marino, 2018 WL 2224736 (finding relevant that reduced range of motion interfered both
with petitioner’s work and her hobby as an avid tennis player); Hooper, 2019 WL
1561519 (finding that petitioner was entitled to future pain and suffering damages due to
a 22.5% loss of use of her left arm). In this case, however, petitioner’s pain
management records indicate that she is “highly functional” and “is able to modify her
activities [so] that she does not have to do too much reaching or lifting.” (Ex. 48, p. 2.)
Nonetheless, as discussed above, petitioner was still experiencing persistent pain.
Finally, respondent raises a question regarding the reason for petitioner’s second
surgery and whether her AC arthritis represents an unrelated source of pain. (ECF No.
111, pp. 20-21.) For example, the Lawson petitioner was noted to have had what was
at the time an unprecedented three shoulder surgeries in the course of her treatment.
The third, surgery, however, addressed a SLAP tear and was therefore somewhat
ambiguous in terms of whether it was representative of her SIRVA sequela. Given the
intermittent character of the Lawson petitioner’s pain, the chief special master noted that
“[t]his raises the question, as we get further from the vaccine administration, whether all
of Petitioner’s sequelae are related to the SIRVA, even if Petitioner continues to live in
some amount of pain.” 2021 WL 688560, at *6 (emphasis in original).
As illustrated by the Lawson decision, respondent is not wrong to suggest that a
petitioner could experience shoulder symptoms unrelated to her SIRVA injury.
Respondent is also not wrong to suggest that this issue could have a bearing on
damages even where it did not defeat a petitioner’s claim relative to entitlement. In this
particular case, however, the parties specifically litigated the question of whether
petitioner’s condition was explained by degenerative findings, including AC arthritis.
Petitioner’s expert, Dr. Srikumaran, opined that, even if AC joint arthritis is itself a
degenerative condition, petitioner’s own AC joint symptoms can be explained as SIRVA
sequela resulting from diffuse inflammation that originated as bursitis. (ECF No. 87, p.
10 (citing Ex. 39, p. 8).) He further opined that the second surgery constituted
appropriate care under this circumstance. (Id.) In contrast, respondent’s expert, Dr.
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Winell, specifically disclaimed any opinion that petitioner’s shoulder pain was more likely
explained by her AC arthritis. 5 (Id. at 17 (citing Ex. C, p. 2).)
Briefly comparing this case to the cases cited by petitioner, the Welch, Lawson,
and Elmakky petitioners all had three surgeries, one more than this petitioner, and
experienced at least moderately reduced range of motion. Welch, 2021 WL 1795205,
at *4 (noting petitioner had three surgeries); Lawson, 2021 WL 688560 at *2-3 (three
surgeries including extensive debridement, extensive bursectomy, subacromial
decompression, extensive debridement of the bursa and subacromial space,
arthroscopic distal clavicle excision); Elmakky, 2021 WL 6285619 at *5-6 (three
surgeries including shoulder manipulation, bursal aspiration, rotator cuff repair,
debridement, acromioplasty, acromionectomy). Welch and Lawson reported moderate
pain like this petitioner; however, the Elmakky petitioner’s pain was characterized as
severe. Welch, 2021 WL 1975205 at *1-2 (seeking treatment a week after vaccination
and reporting pain at 3-7/10); Lawson, 2021 WL 688560 at *1-2 (seeking treatment six
days after vaccination and reporting moderate pain, loss of range of motion, and loss of
strength); Elmakky, 2021 WL 6285619 at *5 (reporting severe pain at initial
presentation). Like this petitioner, each had an extended period of recovery, multiple
steroid injections, and multiple courses of physical therapy. Lawson, 2021 WL 688560at *2-3; Welch, 2021 WL 1975205 at *1-2; Elmakky, 2021 WL 6285619 at *5-6.
The Schoonover, McDorman and M.W. petitioners are more similar to this
petitioner in that each had two surgeries rather than three. All had extensive physical
therapy and multiple steroid injections. Schoonover, 2020 WL 5351351, at *5; M.W.,
2021 WL 3618177 at *1-2; McDorman, 2021 WL 5504698 at *2-3. All had moderately
reduced range of motion. Id. In contrast to this petitioner, the Schoonover petitioner’s
pain was characterized as severe and had a more demonstrable effect on her daily life
(she suffered professionally and additionally suffered depression). 2020 WL 5351341,
at *4. Petitioner distinguishes M.W. based on the M.W. petitioner having had a gap in
treatment. (ECF No. 112, pp. 8-9.) Importantly, however, in awarding damages the
chief special master concluded that, given the Covid-19 pandemic, the M.W. petitioner’s
gap in treatment was adequately explained and he concluded that the petitioner’s injury
had persisted throughout that period. 2021 WL 3618177, at *4.
5 Specifically, Dr. Winell wrote:
Dr. Srikumaran states that in my report I stated that “AC joint arthritis is the more likely
explanation of her shoulder pain.” This is his gross error. My report only stated that she
did not have resolution of her pain after her initial surgery and required an additional
surgery to address an ongoing degenerative process. I further stated that the AC arthritis
noted in the second operative report would not have been caused by the vaccine. It is
unclear how Dr. Srikumaran arose to the conclusion based on these statements that I felt
the AC joint was the more likely explanation for her shoulder pain. It was clear that
petitioner had generalized shoulder pain consistent with impingement as well as AC joint
pain, both of which are commonly seen together in this age group and many times
addressed with one surgery.
(Ex. C, p. 2.)
15
I am mindful of prior decisions regarding damages for SIRVA, including those
cited by the parties. However, I do not rely on any one prior decision to determine the
amount of petitioner’s damages in this case. Instead, I have reviewed previous SIRVA
awards, the arguments presented by the parties, and the totality of the evidentiary
record. As noted above, the primary considerations informing pain and suffering in
SIRVA cases is the severity and duration of the shoulder pain. Numerous aspects of a
petitioner’s medical history potentially speak to these issues, including the total duration
of the petitioner’s pain, the total duration of petitioner’s reduced range of motion, the
length of time over which the petitioner actively treated the condition, the duration and
outcome of physical therapy, the modalities of treatment (e.g. steroid injections,
surgeries, etc.), the severity of MRI or surgical findings, subjective reports of pain levels,
and the ultimate prognosis.
Based on the record as a whole, I conclude that $195,000.00 represents a
reasonable and appropriate award for petitioner’s actual (or past) pain and suffering.
b. Projected (Future) Pain and Suffering
As noted by the chief special master in Winkle, supra, a much more limited
number of prior cases have seen SIRVA petitioners awarded damages for projected
pain and suffering. Those awards have ranged from $250 to $1,500 per year. In Curri,
the petitioner was awarded $550 per year due to significant pain, permanently reduced
range of motion, and specific challenges faced by the petitioner in her day-to-day life.
Curri v. Sec’y of Health & Human Servs., No. 17-432V, 2018 WL 6273562 (Fed. Cl.
Spec. Mstr. Oct. 31, 2018). The petitioner in Dawson-Savard was noted to be similar to
the Curri petitioner and was awarded $500. Dawson-Savard, 2020 WL 4719291, at *4.
In Binette, the petitioner was awarded $1,000 per year because her orthopedist
concluded her condition was permanent and inoperable, meaning she would continue to
experience her existing levels of pain. Binette v. Sec’y of Health & Human Servs., No.
16-731V, 2019 WL 1552620, at *14 (Fed. Cl. Spec. Mstr. Mar. 20, 2019). In Hooper
and Schoonover, the petitioners were awarded $1,500 and $1,200 per year respectively
based in significant part on partial disability that was either permanent or having a
guarded prognosis. Hooper, 2019 WL 1561519, at *4; Schoonover, 2020 WL 5351341,
at *5. In contrast, the Danielson petitioner was awarded only $250 per year in future
pain and suffering based on the fact that she continued to report pain with movement
subsequent to having exhausted all conservative treatment options. Danielson v. Sec’y
of Health & Human Servs., No. 18-1878V, 2020 WL 8271642, at *5 (Fed. Cl. Spec.
Mstr. Dec. 29, 2020).
Here, given the length of time petitioner has been actively treating with a pain
management specialist, her continued reliance on narcotic pain relief, and the opinion of
her pain management specialist that she has a poor prognosis for a full resolution of her
pain, I conclude that an award of projected pain and suffering is appropriate.
Nonetheless, these same treatment records do not reflect severe sequela. For
example, petitioner’s August 12, 2021 pain management follow up recorded that while
16
petitioner has ongoing pain and some limitations in lifting, “medicine helps make it not
so bad.” (Ex. 53, p. 1.) By the time petitioner began seeking pain management, her
range of motion was noted to be good and she was characterized as “highly functional”
and her pain described as “aching most of the time with shooting only occasionally.”
(Ex. 48, pp. 1-2.) Accordingly, while petitioner is likely to continue experiencing pain
and at least some limitation on her day-to-day life indefinitely, she is not experiencing
ongoing sequela comparable in severity to any of the above-discussed petitioners apart
from Danielson.
In light of all of the above, I find that $400 per year for the 34.5 year life
expectancy identified by petitioner in her motion represents a reasonable and
appropriate award for projected pain and suffering.
c. Lost wages and other expenses
As explained above, petitioner has asserted that she incurred $4,847.18 in past
unreimbursable expenses. (ECF No. 109, p. 16.) Petitioner has documented these
expenses at Exhibit 55 and respondent has agreed that these expenses are
compensable. (ECF No. 111, n .1.) Accordingly, I conclude that petitioner is entitled to
an award in this amount.
Petitioner’s motion also asserts a lost wages claim of $4,209.59 without specific
explanation. (ECF No. 109, p. 16.) Instead, petitioner merely cites her filing of
documents at Exhibit 56. (Id.) Exhibit 56 consists of tax returns and paystubs. The
paystubs have handwritten notations on them by petitioner indicating that they both
show missed and unpaid time, as well as hours paid at a reduced rate, due to shoulder
surgery. (Ex. 56, p. 74 et seq.) There is no specific explanation of how petitioner
arrived at the total figure of $4,847.18.
Respondent does not dispute that the documents show petitioner to have missed
time from work due to her surgical procedures (ECF No. 111, n. 16); however,
respondent does dispute petitioner’s calculation of the resulting lost wages.
Respondent argues that “[p]etitioner has not filed a report by an economist detailing the
calculation for such damages” and petitioner’s supporting documents “do not delineate
petitioner’s proposed calculation of lost earnings or an offset for applicable taxes.” (Id.
at 24.) Respondent argues that the correct amount is $3,059.11. (Id.) Petitioner did
not dispute respondent’s contention in her reply or otherwise further substantiate her
lost wages claim. In fact, petitioner did not address her lost wages claim at all in her
reply. (ECF No. 112.)
In light of the above, I conclude that petitioner is entitled to an award for lost
wages in the amount of $3,059.11. To the extent she contends her lost wages were in
a higher amount, she has not adequately explained that position.
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VI. Conclusion
The parties shall file a joint status report by no later than Wednesday,
August 24, 2022, converting the award of future pain and suffering to its net
present value. If the parties are unable to agree on the amount of the net
present value of the future award, they shall instead file separate
supplemental briefs addressing the issue, including a final calculation of the
net present value, sufficient information to understand the basis for the
calculation, and the legal authority supporting the preferred approach. Once
the issue of net present value for the future award is resolved, a damages
decision will issue.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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