         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 18-0490V
                                      Filed: April 8, 2019
                                        UNPUBLISHED


    ANDRU GARRETT,

                        Petitioner,                          Special Processing Unit (SPU);
    v.                                                       Decision Awarding Damages; Pain
                                                             and Suffering; Influenza (Flu)
    SECRETARY OF HEALTH AND                                  Vaccine; Shoulder Injury Related to
    HUMAN SERVICES,                                          Vaccine Administration (SIRVA)

                       Respondent.


Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On April 3, 2018, 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 he suffered left shoulder injuries caused in fact by the
influenza vaccination he received on November 19, 2016. Petition at 1, ¶¶ 2, 9 (ECF
No. 1). The case was assigned to the Special Processing Unit of the Office of Special
Masters.

        On July 31, 2018, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for his shoulder injury related to vaccine
administration (“SIRVA”). (ECF No. 12). Being previously informed that the parties had

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
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).
been unable to agree upon an appropriate amount of compensation in this case, the
undersigned ordered the parties to file simultaneous briefs regarding the damages to be
awarded. (ECF No. 19). For the reasons described below, the undersigned finds that
petitioner is entitled to an award of damages in the amount of $70,000.00, representing
compensation for actual pain and suffering.

      I.      Relevant Procedural History

      With his petition, petitioner filed some of the medical records needed to establish
the merits of his case. See Exhibits 1-5 (ECF No. 1). Following the initial status
conference, he was ordered to file medical records from treatment received prior to
vaccination at Mercy Children’s Hospital & Clinics (“Mercy Children’s”) in Kansas City,
Missouri. See Order, issued May 31, 2018, at 1 (ECF No. 8) (initially only records from
the day after vaccination were requested). Petitioner filed the additional medical
records on July 30, 2018. See Exhibit 6 (ECF No. 9).

        On July 31, 2018, respondent filed his Rule 4(c) report, conceding that petitioner
is entitled to compensation. (ECF No. 10). Specifically, respondent agreed petitioner’s
injury meets the requirements for SIRVA as defined on the Vaccine Injury Table. Id. at
3-4; see 42 C.F.R. § 100.3(a)(XIV) (Table SIRVA after influenza vaccination); 42 C.F.R.
§ 100.3(c)(10) (Qualifications and Aids to Interpretation for SIRVA). The same day, the
undersigned issued a ruling on entitlement, finding petitioner entitled to compensation.
(ECF No. 11). She instructed the parties to engage in informal discussions regarding
the appropriate amount of damages in this case. Damages Order, issued July 31, 2018
(ECF No. 12).

        During the subsequent two months, petitioner submitted a demand and
supporting documentation to respondent, and respondent provided a response to
petitioner’s demand. See Status Reports, filed Aug. 30 and Oct. 1, 2018 (ECF Nos. 14,
16). On October 10, 2018, respondent’s counsel emailed the OSM staff attorney
managing this SPU case,3 informing her that the parties had reached an impasse
regarding damages and that respondent believed a damages hearing was needed. See
Informal Remark, dated Oct. 10, 2018. A call with the staff attorney was held on
October 24, 2018.

         During the call, the parties agreed to submit briefing on the issue of damages
and to ask the undersigned to issue a written decision awarding damages. See Order,
issued Oct. 26, 2018, at 1 (ECF 19). Respondent’s counsel qualified respondent’s
agreement by requesting that, in addition to a brief on the issue, petitioner file the
damages statement that he submitted with his demand. Id. at 2. Petitioner’s counsel
agreed to the request, noting that she would need to obtain confirmation from her client.
Id. at 1-2. The parties completed their filings in December 2018. (ECF Nos. 21-23).
Neither party filed a response. The matter is now ripe for adjudication.




3   Petitioner’s counsel was copied on the correspondence.

                                                     2
      II.      Relevant Medical History

       Petitioner was 16 years old and a junior in high school when he received the
influenza vaccination administered on November 19, 2016.4 He filed medical records
from his primary care provider (“PCP”), Dr. Weldon Harris, from as far back as
December 2009, shortly before he turned ten years old. See Exhibit 4 at 39 (Dec. 3,
2009 visit).

        These earlier records show that petitioner suffered typical childhood illnesses
and several sports injuries. Exhibit 4 at 15-48. For example, from early December
2009 through early 2013, while playing football, he suffered injuries to his left heel (id. at
39, indicating pain) and right arm (id. at 22, indicating pain and tingling). When seen for
his right arm injury, on January 23, 2013, Dr. Harris noted that petitioner also
experienced continued right knee pain which had started in 2011. Id. at 22. Petitioner
attended physical therapy (“PT”) at Centerpoint Medical Center (“Centerpoint”) for his
right knee pain from late November 2013 through February 2014. Exhibit 3 at 2-33. On
February 25 and October 2, 2015, while playing basketball, he sustained injuries to his
“bottom” (Exhibit 4 at 18) and left knee (id. at 15), respectively. In July 2014, he was
reported to have mild asthma. Id. at 17.

       In the year before he received the influenza vaccination, petitioner suffered from
several injuries while playing basketball. On February 9, 2016, he was seen by Dr.
Harris, for an injury to his right hip and toe. Exhibit 4 at 14. Later records indicate he
slipped while playing basketball. Exhibit 6 at 9. Although he didn’t fall, he “felt like he
could have pulled something.” Id. Approximately one month later, he visited the
emergency department (“ED”) at Mercy Children’s in the evening of March 14, 2016. Id.
at 5-48. He reported that his pain initially had improved under the care of a
chiropractor, but his injury was aggravated when he decided to participate in track. At
the March ER visit, he was observed to have difficulty walking. Id. at 9. After x-rays
and an orthopedic assessment, he was discharged with crutches, pain medication, and
instructions to cease all physical activity, including sports, until he followed-up with
orthopedics. Id. at 12.

        Petitioner was seen at the orthopedic clinic at Mercy Children’s twice in April and
May 2016 (Exhibit 6 at 55-73) and attended PT at Centerpoint from late April through
late June 2016 (Exhibit 3 at 34-3, 46-60). At the second orthopedic appointment, it was
noted that petitioner had been discharged from PT, with instructions to return to full
activity within a few weeks. Exhibit 6 at 66. In late April 2016, petitioner was hit on the
nose while playing basketball. See Exhibit 6 at 80 (visit to ED department); Exhibit 3 at
38-44 (PT records). Additionally, he was seen at the ED at Mercy Children’s for lower
back pain in June 2016. Exhibit 6 at 383-386.

        On November 16, 2016, petitioner had a walk-in appointment with Dr. Harris for
fever, chills, and a headache. Exhibit 4 at 54. He was told to rest and drink plenty of
fluids. Id. at 55. Early the next morning, he presented to the ED at Saint Luke’s East

4   Although 16 years old at the time of vaccination, petitioner was 18 years old when he filed this petition.

                                                        3
Hospital with abdominal pain, fever, and vomiting. Exhibit 6 at 394.5 He was diagnosed
with pneumonia and sepsis and transferred to Mercy Children’s for inpatient care. Id. at
374-78. After transfer, he was quickly moved to the Pediatric Intensive Care Unit
(“PICU”). While in the hospital, he missed several school events, an important
basketball game, team photo, and choral concert. Id. at 260. His mother reported that
he had made the varsity basketball team for the first time that year. Id. He received the
influenza vaccination, while in the hospital, intramuscularly in his left deltoid on
November 19, 2016. Exhibit 1 at 2 (vaccine record). Petitioner was discharged from
Mercy Children’s on November 20, 2016. Exhibit 6 at 207-224.

       During a follow-up visit with his Dr. Harris on November 23, 2016, some residual
pneumonia was observed in petitioner’s lower left lobe. Exhibit 4 at 60. He was
instructed to rest for two weeks and to drink plenty of fluids. Id. Three days later, on
November 26, 2016, petitioner visited the ED at Mercy Children’s with pain on the left
side of his chest and back. Exhibit 2 at 137. He described his level of pain as 3 on a
scale of 10, adding that it was worsening. Id. Informed that the pain was, most likely,
due to his cough and pneumonia, petitioner was instructed to take ibuprofen and to
follow-up with his PCP, Dr. Harris. Id. at 142. Petitioner was seen by Dr. Harris on
December 1, 2016. In the record from this visit, it was noted that he was attending
school, had finished with his antibiotics, and wished to return to basketball. Id. at 63.

        Petitioner was first seen for his left shoulder pain at the Urgent Care Clinic
(“UCC”)6 at Mercy Children’s on December 7, 2016. He reported that the nurse had
administered the vaccination high on his shoulder and he had experienced pain since
that time. Exhibit 2 at 121-22. Although his pain was described as “tender” (id. at 120),
petitioner indicated that he felt it “deep down in the shoulder” (id. at 126 (noted as a
direct quote from petitioner)). He estimated his pain to be 3 out of 10, adding that it
“was worse after he stopped taking ibuprofen” as prescribed for his previous left side
and back pain. Id. at 122. He stated that his pain “has been getting worse to the point
where he can no longer move his arm.” Id. His mother mentioned that she was
concerned that he was suffering from a SIRVA. Id. Upon examination, petitioner was
observed to have “decreased [range of motion (“ROM”)] with extension and abduction of
left shoulder due to pain.” Id. at 123. X-rays were ordered, Naproxen prescribed, and a
referral to sports medicine was provided. Id.; see id. at 133 (results of x-rays). The next
day, on December 8, 2016, Kim Marilyn, RN, spoke to either petitioner or one of his
parents who indicated his condition had improved. Id. at 132.

      Petitioner was seen at the orthopedic clinic at Mercy Children’s on January 13,
2017, by Dr. Margaret Gibson. Exhibit 2 at 113.7 At this visit, petitioner reported that he
5Some of the medical records from petitioner’s November 2016 hospitalization at Mercy Children’s can
be found in Exhibit 1. Since Exhibit 6 contains the more comprehensive set of these records, when the
medical record appears in both exhibits, citation will be to the copy contained in Exhibit 6.
6The medical records from other visits to the ED department at Mercy Children’s contain a combination of
notations indicating both “ED” and “ED/UCC” assessments, but all notations in this record are to
“ED/UCC.” Additionally, a later record specifically states that petitioner visited UCC. Exhibit 2 at 113.
Thus, the undersigned presumes petitioner went directly to the UCC for this visit.
7   The later medical records from Mercy Children’s can be found in Exhibit 2.
                                                      4
was playing basketball but that his pain was worse, especially when lifting his arm. He
added that Tylenol helped and that “he can still do everything, but it does hurt.” Id. at
113. He described his pain as sharp, stabbing, and aggravated by movement. Id. at
113, 116. While being examined, he showed full ROM with pain at the top of the arc
and strength decreased by 50%. Id. at 114. Indicating petitioner had a weak rotator
cuff and may have some inflammation of his bursa, Dr. Gibson ordered an MRI and
instructed petitioner to begin a home exercise program. Due to a greater risk of further
injury, she recommended that petitioner not play basketball until his condition improved.
Id. at 115. The MRI, performed on January 24, 2017, showed a possible partial tear
and tendinosis of the rotator cuff and a small amount of fluid in the subacromial bursa
indicating bursitis. Id. at 110.

        A day after undergoing the MRI, petitioner was seen for an injury8 to his right
thumb sustained while playing basketball. Exhibit 2 at 100. He estimated that his level
of pain was 5 out of 10. Id. at 101. X-rays revealed no fracture or dislocation, and
petitioner was instructed to return to physical activity when able. Id. at 104.

         On February 13, 2017, petitioner visited the ED at Mercy Children’s with a cough,
difficulty breathing, and chest pain. Exhibit 2 at 87. His November 2016 illness and
corresponding hospital stay was noted. Id. at 85. Petitioner indicated that “he
frequently experiences cough and breathing difficulties as well as chest discomfort prior
to and while performing physical activity [and that] [a]lthough never formally diagnosed
with asthma, he has routinely used albuterol prior to participating in sports.” Id. at 88.
Petitioner was prescribed Flovent9 and instructed to follow-up with his PCP for further
evaluation. Id. at 87. There is no mention of shoulder pain in the record from this visit,
and it is noted that petitioner had “Normal ROM.” Id. at 88.

        On March 7, 2017, petitioner began PT for his shoulder injury at Centerpoint.
Exhibit 3 at 63 (listing Dr. Gibson as the referring physician). At the initial evaluation,
petitioner reported that, after receiving the influenza vaccination, he “had soreness that
never went away.” He added that Dr. Gibson had diagnosed him with bursitis, and that
his MRI “revealed some fluid in his bursa sac.” Id. Although petitioner reported that “his
arm had been feeling a lot better over the past 2 weeks,” he indicated his left arm “[wa]s
now much weaker than his right.” Id. He clarified that “he doesn’t necessarily have pain
when he lifts things but has pain immediately after.” Id. Upon examination, it was noted
that petitioner had pain levels of 0 out of 10 at rest and 4 out of 10 with activity. Id. at 64.
Petitioner exhibited normal ROM but showed some weakness (4/5) in his left shoulder.10
Id. Diagnosed with “left shoulder subacromial bursitis and infraspinatus tendinosis,”
petitioner was described as “in the subacute phase of healing.” Id. His injury was
reported to be “moderately severe and moderately irritable.” Id. Two to three sessions

8   Petitioner’s “[r]ight thumb got jammed into the basketball backboard around 4PM.” Exhibit 2 at 102.
9Flovent “is a prescription inhaled corticosteroid medicine for the long-term treatment of asthma in people
aged 4 years and older.” https://www.flovent.com (last visited Mar. 25, 2019).

10Except for a slight decrease in strength during external rotation, petitioner’s right shoulder strength was
assessed as 5/5. Exhibit 3 at 64.

                                                      5
of PT per week for four to six weeks was recommended. Id. at 65. Petitioner reported
pain levels of 3 prior to and after this first PT session. Id. at 72.

       In March through early April 2017, petitioner attended three more PT sessions,
on March 21, 28 and April 4) and was noted to be a “No show” on two occasions (March
24 and 30). Exhibit 3 at 66-71. During the first two sessions, he exhibited some slight
progress. At the first session, on March 21, 2017, petitioner indicated that he had
performed his exercises while in New York and described his arm strength as
improving. However, he reported that he continued to have pain after performing his
exercises. Id. at 70. During the session, he was able to perform some, but not all, of
the exercises. Petitioner described his pain level as 3 prior to the session and 2
afterwards. Id. at 70-71. At the March 28 session, petitioner again reported improved
arm strength but continued pain with activity. Id. at 68. He indicated that he had
experienced pain during the weekend while helping his mother “move stuff.” Id.
Experiencing sharp pain with one exercise, he described pain levels of 0 prior to the
session and 3 afterwards. Id. at 68-69.

        By the next session, on April 4, 2017, petitioner appears to have experienced a
slight relapse. He reported some shoulder pain and neck soreness. Although he had
played basketball the previous day, petitioner indicated this “doesn’t usually hurt him.”
Exhibit 3 at 85. He attributed his neck soreness to sleeping wrong. Id. After the
session, it was recorded that he had “[s]hakiness” and “[s]ignifcant scapular winging.”
Id. at 86. He reported pain levels of 3 prior to the session and 5 afterwards. Id. at 85.

          Petitioner was re-evaluated on April 6, 2017. At that PT visit, he reported “an
‘irritation’” after his last PT session which he described as “muscle soreness.” Exhibit at
87. He estimated his current level of pain to be 2 out of 10. Id. Upon examination, he
exhibited the same levels of strength as he did on March 7, 2017, and his pain was
noted to be 0 at rest and 5 with activity. Id. at 87-88. Under the observations section, it
was noted that petitioner “continues to have pain but reports it [to be] better overall.” Id.
at 88. His strength was better, but it was noted that “he continues to have significant
strength deficits as seen through had held dynamometer[11] testing today.” Id.
Additional PT was recommended. Id. at 88-89. The treatment note for that visit lists his
pain level as 2 before the session and 5 afterwards. Id. at 83.

        On April 13, 2017, petitioner exhibited weakness and indicated he was still sore
from his last session. Exhibit 3 at 81. At the beginning of the session, he reported pain
at a level of 4. However, after the session, petitioner’s pain levels were listed as a
consistent 3 before and after the session. Id. Under the comments section, the
physical therapist recorded that petitioner “[d]emonstrated poor endurance with
exercise, requiring rest breaks.” Id.

        During the remaining six PT sessions, from April 20 through May 19, 2017,
petitioner continued to make slow but consistent progress. For example, on both April
20 and 25, he was able to lift his mother’s photo booth without pain. Exhibit 3 at 79, 77.
11 A dynamometer is an instrument for measuring the force of muscular contractions. DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY at 575 (32th ed. 2012).

                                                  6
At the April 20 session, he reported that he had sprained his ankle playing basketball12
but noted that his shoulder pain was “a little better.” Exhibit 3 at 79. After the three
April sessions, he described his pain prior to the session as 1 or lower and 2 or lower
afterwards. Id. at 96, 95, 93 (in chronological order). During two of the three PT
sessions in May 2017, petitioner indicated his pain levels were 0 both before and after
the session. Id. at 93, 96. At the other session, both levels were noted to be 1 out of
10. Id. at 95. At his last PT session on May 19, 2017, petitioner reported no pain for a
week or two. Id. at 93.

        Petitioner was discharged from PT on June 23, 2017. The discharge summary
indicates petitioner’s “mother called and said he was doing well and requested
discharge from physical therapy.” Exhibit 3 at 98. Thus, it appears petitioner did not
attend PT on June 23, 2017. Additional notations in the discharge summary support
this finding. For example, under goals, it is noted that they were “not assessed
secondary to patient not returning to physical therapy.” Id. at 99. Additionally, the
section titled “Visit Information” lists 12 sessions attended and 3 missed appointments.
Id. Since the other records describe 12 sessions attended and 2 missed sessions, it
follows that the June 23, 2017 session was the third missed session. Thus, according
to the medical records filed, the May 19, 2017 PT session was the last time petitioner
was treated for his shoulder injury.

       In November and December 2017, petitioner visited the ED at Mercy Children’s
on three occasions for left side pain, congestion, and shortness of breath. Exhibit 2 at
55, 39, 27 (in chronological order). Petitioner was administered an exercise stress test
on January 12, 2018. Exhibit 2 at 10.

      III.    Petitioner’s Damages Statement

        On April 3, 2018, petitioner filed the basic affidavit required by § 11(c)(1). Exhibit
5 (ECF No. 1-8). He filed a more detailed damages statement on December 16, 2018,
but this statement is not signed or notarized. See Exhibit 7 (ECF No. 9-1).

        In his statement, petitioner indicates that he received the influenza vaccination
when being released from the hospital after suffering pneumonia and sepsis. Exhibit
7.13 He further indicates that he nearly died during his illness and describes the event
as “the most traumatic event in [his] life.” Id. Because his shoulder injury occurred
immediately after his hospitalization, he argues its timing intensified the impact of the
injury. Id.

       Petitioner describes his pain level as an 8 out of 10 while at rest and 10 out of 10
with movement for months after vaccination. He asserts that, within a week of
vaccination, his arm hurt so much that he “couldn’t even lift it.” Exhibit 7. Despite being
included on the varsity roster and having previously practiced with the varsity team,

12 He visited the UCC at Mercy Children’s for treatment of his sprained ankle on April 15, 2016. Exhibit 2
at 66.

13   The unsigned damages statement, filed as Exhibit 7 is a typed document, one page in length.

                                                     7
petitioner was forced to spend most of the season on the bench. Petitioner attributes
his inability to play basketball his junior year to his earlier illness (sepsis and
pneumonia) and left shoulder injury. He indicates that his pain levels and ROM
improved with PT, but not until the basketball season was finished. Petitioner maintains
sitting on the bench during most of the season “really was the hardest time of [his] life.”
Id.

       According to petitioner, these pain levels, 8 to 10 out of 10, continued through the
first months of his senior year. Exhibit 7. During basketball practice sessions in August
and September 2017, he states that he was forced to tape his arm. By the start of the
season in October 2017, petitioner indicates his pain had improved to a level of 6 to 7
out of 10, but he alleges that he continued to experience pain through March 2018,
when running track and pumping his arms. Id.

     IV.    The Parties’ Arguments

       Petitioner seeks damages in the amount of $95,000.00 for his actual pain and
suffering. Petitioner’s Brief in Support of Damages (“Pet. Brief”) at 6 (ECF No. 22).
Specifically, he asserts that his inability to play basketball “and the resultant emotional
impact it had on him” support an award in this amount. Id. He compares the facts in his
case to those in three other decisions, Desrosier, Dhanoa, and Marino14 in which
amounts from $75,000.00 to $85,000.00 was awarded for actual pain and suffering.
Pet. Brief at 4-6. Citing the statistical data found in the Kim,15 petitioner notes that the
median amount of damages awarded in proffered16 SIRVA cases is $100,000.00. Pet.
Brief at 4. When providing the details regarding his pain and suffering, petitioner relies
heavily on the information provided in his unsigned damages statement. Id. at 6-7.

        Respondent argues that petitioner should be awarded $50,000.00 as
compensation for his actual pain and suffering. Respondent’s Brief on Damages (“Res.
Brief”) at 1 (ECF No. 21). He maintains that “[p]etitioner’s SIRVA was mild and the
evidence of record indicates a good recovery.” Id. at 12. Comparing petitioner’s facts
to those in Desrosier and Marino, respondent asserts “that the severity shown by

14Desrosiers 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); 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 $862.15 in past unreimbursable
medical expenses); 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).

15Kim v. Sec’y Health & Human Servs., No. 17-418V, 2018 WL 3991022, at *6 (Fed. Cl. Spec. Mstr. July
20, 2018).
16If, based on a concession by respondent or ruling by the special master, entitlement has been
determined in favor of petitioner, a case is said to be “in damages.” As such, the petitioner in that case is
entitled to the full amount of damages appropriate under the Vaccine Act. If the parties reach an
agreement regarding the amount to be awarded, respondent generally will file a proffer setting forth the
agreed upon amount and any designated subtotals. Thus, the amounts awarded in proffered SIRVA
cases represent amounts agreed upon by the parties as reflecting the full amount of compensation
appropriate under the Vaccine Act.
                                                       8
petitioner in the current case does not reach the level described” in those cases. Id.
Instead, he compares petitioner’s injury to the one suffered by the petitioner in another
case in which $60,000.00 was awarded for actual pain and suffering, Knauss,17 claiming
petitioner’s injury “was less severe than what existed in Knauss.” Res. Brief at 14.

     V.     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). Additionally, 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.” § 15(a)(1)(B). 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).

        There is no 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) (“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”). 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. 18 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)).

       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 in this case.
See, e.g., Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009)
(finding that “there is nothing improper in the chief special master’s decision to refer to
damages for pain and suffering awarded in other cases as an aid in determining the
proper amount of damages in this case.”). And, of course, the undersigned may also



17Knauss 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).

18 In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times
petitioner was a competent adult with no impairments that would impact her awareness of her injury.
Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s
injury.

                                                       9
rely on her own experience adjudicating similar claims.19 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). Importantly, however, it must also be stressed
that pain and suffering is not determined based on a continuum. See Graves v. Sec’y of
Health & Human Servs., 109 Fed. Cl. 579 (2013).

     VI.      Analysis

           A. Petitioner’s Level of Pain and Suffering

        The medical records in this case establish that petitioner suffered a moderately
severe SIRVA injury for approximately six months with mild to moderate pain,
particularly with movement, and significantly decreased strength. Other than
petitioner’s allegations as stated in his brief and unsigned damages statement, there is
no evidence to support his assertion that he continued to suffer severe levels of pain
beyond May 2017. E.g., id. at 96. Although he now describes his left shoulder injury as
more severe, both in the levels of pain suffered and duration, these allegations are not
supported in the medical records filed. As previously held by the Federal Circuit, it is
appropriate for a special master to give greater weight to evidence contained in medical
records created closer in time to the vaccination, even if the information is provided as
part of a medical history. Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525,
1528 (Fed. Cir. 1993) (medical records are generally trustworthy evidence).

        In the medical records, petitioner often described his left shoulder pain as sharp,
stabbing pain which worsened with movement. E.g., Exhibit 2 at 113, 116 (visit to
orthopedist, Dr. Gibson). The MRI conducted on January 24, 2017, showed a possible
partial tear and tendinosis of the rotator cuff and a small amount of fluid in the
subacromial bursa indicating bursitis. Id. at 110. However, petitioner rated his level of
pain as mild, usually 3 out of 10 or less. E.g., id. at 122 (Dec. 7, 2016 UCC visit).
Petitioner noted pain with movement at a level of 5 out of 10 on only two occasions, in
early April 2017. Exhibit 3 at 85, 87. Moreover, petitioner’s pain at rest was often
described as mild or non-existent. E.g., id. at 87. Thus, petitioner’s pain levels, as
shown in the contemporaneously created medical records, were mild to moderate.

        In his brief and unsigned statement, petitioner paints a more extreme picture of
his pain and suffering than what is reflected in the medical records. Pet. Brief at 6-7;
Exhibit 7. For example, petitioner claims to have experienced pain at a level of 8 to 10
out of 10 during the months following vaccination. Pet. Brief at 6; Exhibit 7. However,
in the contemporaneously created medical records, petitioner describes much lower
levels. E.g., Exhibit 2 at 122 (estimating his pain as 3 out of 10 at his UCC visit). Thus,
the medical records do not support, and instead contradict, petitioner’s claims that he
suffered severe levels of pain, described as 8 to 10 out of a level of 10.


19From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.

                                                10
         Throughout his injury, petitioner exhibited good ROM in his left shoulder, with
pain primarily at the extremes. E.g., Exhibit 2 at 114. Petitioner was benched during
most, if not all, of his junior year of high school basketball due to his prior illness,
difficulties breathing, and left shoulder injury. However, there is also reliable evidence
that he continued to play basketball, whether on his own or at practice, during this time.
For example, he reported playing basketball when seen by Dr. Gibson in mid-January
2017. Exhibit 2 at 113. Although instructed by Dr. Gibson not to play until his left
shoulder injury resolved, petitioner visited the ED at Mercy Children’s on January 25,
2017, with an injury to his thumb sustained while playing basketball. Id. at 100 (record
regarding injury), 115 (Dr. Gibson’s instruction). During a PT session in early April
2017, petitioner again indicated he played basketball the previous day. Exhibit 3 at 85.
Although petitioner should not be penalized for continuing this activity, it is evidence that
his condition was not so severe as to prevent him from doing so.

         The more significant symptom exhibited by petitioner was his lack of strength
which was described as reduced by 50% by Dr. Gibson. Exhibit 2 at 114. Throughout
the PT records, petitioner’s left arm is consistently described as weaker than his right.
E.g., Exhibit 3 at 63. However, this weakness was assessed as 4 out of 5 as opposed
to normal strength of 5 out of 5. Id. at 64. Additionally, the weakness he experienced
did not prevent petitioner from engaging in activities such as lifting the photo booth
owned and rented by his mother and playing basketball. By late April 2017, petitioner
indicated he was able to lift his mother’s photo booth without pain on two occasions. Id.
at 77, 79.

        The duration of petitioner’s SIRVA was relatively short. By May 2017, it appears
that petitioner had recovered almost fully from his left shoulder injury. Exhibit 3 at 93.
In his brief, petitioner argues that the information contained in the June 23, 2017
discharge summary from PT at Centerpoint is reflective of his condition at that time.
Pet. Brief at 6-7. As previously discussed in this decision, it appears the May 19, 2017
PT session was the last time petitioner was treated for his left shoulder injury. See
supra Section II. Instead, the discharge summary created on June 23, 2017 seems, as
labeled, to be a summary of petitioner’s care, providing the full range of symptoms
exhibited by petitioner and treatment provided.20 Exhibit 3 at 98-100.

       At his last PT session on May 19, 2017, petitioner reported that he had been free
of pain for a week or two and that he experienced no pain prior to or after that session.
Exhibit 3 at 93. Although petitioner was treated for other conditions after that date,
there is nothing to indicate that his left shoulder symptoms continued. The medical
records do not show, and petitioner does not allege, that additional treatment for his left
shoulder injury was pursued.

       Petitioner alleges, in both his unsigned statement and brief, that he continued to
suffer severe levels of pain with movement through Spring 2018, but there is no
evidence to support this assertion. Pet. Brief at 7; Exhibit 7. Furthermore, petitioner
20For example, in the discharge summary, petitioner’s range of pain is listed as 0 to 5. Exhibit 3 at 98.
These amounts correspond to the full range of pain levels experienced by petitioner throughout his PT.
See generally, Exhibit 3.

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was treated on three occasions during November 2017 through January 2018, for left
side pain, congestion, and shortness of breath. There is no mention of left shoulder
symptoms in any of these records. Exhibit 2 at 3-61. Thus, the undersigned finds that
petitioner’s allegations of continued left shoulder pain, weakness, and limited ROM are
not supported by the medical records or any other evidence filed in this case. It
appears that petitioner’s left shoulder injury resolved by the time he was discharged
from PT in June 2017 at approximately seven months.

        B. Comparison to Other SIRVA Awards

        Given the evidence provided in this case, it is clear that the severity and duration
of petitioner’s pain and suffering is most similar to that suffered by the petitioner in
Knauss and less than that suffered by the petitioners in Desrosier, Dhanoa, and Marino.
In Dhanoa, the petitioner suffered pain levels of 5 out of 10, which soon rose to a level
10 out of 10. Dhanoa, 2018 WL 1221922, at *3. Additionally, the Dhanoa petitioner
was treated for her SIRVA on and off for a period of three years. Id., at *4-5. The
amount of damages awarded in the Desrosier case was partially based on the unique
circumstances suffered by that petitioner which are not present in this case.21 The
petitioner’s in both these cases were awarded $85,000.00 for their actual pain and
suffering.

         While petitioner’s pain and suffering more closely resembles that of the petitioner
in Marino, who was awarded $75,000.00 for her actual pain and suffering, there are still
significant differences. For example, the petitioner in Marino consistently cited higher
pain levels than those reported by petitioner in this case. Marino, 2018 WL 2224736, at
*7 (describing levels of 5 to 6 out of 10). Although the evidence showed the Marino
petitioner’s “most intense pain and limiting symptoms lasted for approximately seven
months,” her pain and limitations continued until more than two years after vaccination.
Id., at *8. In this case, the evidence shows that, by his twelfth and last PT session, six
months after vaccination, petitioner was suffering no pain. Exhibit 3 at 96 (last PT
session).

       When comparing petitioner’s injury to the one suffered by the petitioner in
Knauss, who was awarded $60,000.00 for his actual pain and suffering, there are
factors which would support a lesser award in this case. However, other factors dictate
that the petitioner in this case should receive a greater amount of compensation for his
pain and suffering. Although the petitioner in Knauss delayed treatment for several
months, he did undergo three months of continuous treatment, which included almost
twice the number of PT sessions attended by the petitioner in this case. Knauss, 2018
WL 3432906, at *3 (noting 23 PT session in total). Additionally, approximately twelve
months after vaccination, the Knauss petitioner sought further medical care for his
shoulder injury which included the administration of a cortisone injection. Id., at *4.


21 The petitioner in Desrosier was pregnant at the time of her vaccination, and thus, unable to avail herself
of many treatment options available to others suffering from SIRVAs. Desrosiers, 2017 WL 5507804, at
*5. Therefore, her pain and suffering was greater than it would have been had she not been pregnant at
the time.

                                                     12
        However, even though mild to moderate, petitioner’s pain levels were greater
than those experienced by the Knauss petitioner. Knauss, 2018 WL 3432906, at *2
(citing pain levels of 1 out of 10). Additionally, there was evidence in the Knauss case
that at least part of petitioner’s pain could be attributed to degenerative changes. 22 In
the case of this petitioner, a sixteen-year old high school student, the totality of his pain
can be attributed to his SIRVA. Moreover, the petitioner in this case suffered significant
shoulder weakness. Exhibit 2 at 2 at 114 (Dr. Gibson describing petitioner’s strength as
50%). And he experienced the disappointment of being benched during his junior year
of basketball, the first time he had made the varsity team. Although petitioner was able
to play his senior year, he did miss an entire season which cannot be repeated.

        In this case, petitioner had good ROM, mild to moderate levels of pain with
movement, and mild to no pain at rest. The strongest medication prescribed to
petitioner was Tylenol or Naproxen. Nevertheless, petitioner did exhibit significant
weakness throughout his injury. When initially evaluated for PT on March 7, 2017, his
injury was described as “moderately severe and moderately irritable.” Exhibit 3 at 63.
Despite a slight relapse in April 2017, petitioner symptoms gradually improved with PT.
Petitioner’s shoulder injury resolved after one trip to the UCC, one visit to the
orthopedist, and twelve PT sessions from early March to late May 2017. In total,
petitioner suffered from his SIRVA injury for approximately six months. During this time,
however, he missed his junior year of basketball due to his SIRVA and earlier illness.
Reviewing all evidence in this case, the undersigned finds that $70,000.00 is an
appropriate award for petitioner’s actual pain and suffering.

     VII.   Conclusion

      For all of the reasons discussed above and based on consideration of the
record as a whole, the undersigned finds that $70,000.00 represents a fair and
appropriate amount of compensation for petitioner’s actual pain and suffering.23

     Based on the record as a whole and arguments of the parties, the undersigned
awards petitioner a lump sum payment of $70,000.00 in the form of a check
payable to petitioner, Andru Garrett. 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.24



22 The Knauss petitioner was treated for shoulder pain prior to receiving the vaccination alleged as causal
in that case. Knauss, 2018 WL 3432906, at *2.
23Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).

24Pursuant 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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IT IS SO ORDERED.


                    s/Nora Beth Dorsey
                    Nora Beth Dorsey
                    Chief Special Master




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