        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0224V
                                   Filed: September 19, 2017
                                         UNPUBLISHED

****************************
LINDSEY DESROSIERS,                       *
                                          *
                     Petitioner,          *      Ruling on Pain & Suffering; Concession;
v.                                        *      Tetanus-Diphtheria-Acellular-Pertussis
                                          *      Vaccine (“Tdap”); Shoulder Injury
SECRETARY OF HEALTH                       *      Related to Vaccine Administration
AND HUMAN SERVICES,                       *      (“SIRVA”); Special Processing Unit
                                          *      (“SPU”)
                     Respondent.          *
                                          *
****************************
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
David Gregory Cutler, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

        On February 16, 2016, Lindsey Desrosiers (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder
injury as a result of a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine she
received on March 9, 2015. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.

       It has already been determined that petitioner is entitled to compensation for her
vaccine-related injury, and the only issue currently before the undersigned is the
amount of damages that petitioner should be awarded in compensation for pain and
suffering. As detailed below, the undersigned finds that an award of $85,000.00
represents a fair and appropriate amount of compensation for petitioner’s past and
future pain and suffering.

1
  Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
 National 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).
   I.     Procedural History

        On May 12, 2016, respondent filed his Rule 4(c) report in which he conceded that
petitioner was entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. On September 1, 2016, the undersigned issued a ruling on entitlement finding
petitioner entitled to compensation for her SIRVA (shoulder injury related to vaccine
administration) injury. The parties then began the process of negotiating the
appropriate amount of damages.

         On June 22, 2016, petitioner filed a status report stating the parties were unable
to reach an agreement on damages. On July 1, 2016, the staff attorney managing this
case held a status conference to address the parties’ concerns. The parties explained
that the issue of disagreement was on the appropriate amount to award petitioner for
her pain and suffering. After discussing several available options, the parties filed a
status report on September 1, 2016, stating that they conferred and requested 60 days
to file briefs on damages. The parties filed simultaneous briefs discussing the damages
issues in this case. This case is now ripe for a determination regarding petitioner’s pain
and suffering and award of damages.

   II.    Fact History

       Petitioner received a Tdap vaccine in her left shoulder on March 9, 2015, at
South County Hospital in East Greenwich, Rhode Island during her six-month
pregnancy check-up. Petitioner’s Exhibit (“Pet. Ex.”) 1 at 2; Pet. Ex. 5 at 1, ¶3. At the
time, she was employed as a pharmacist at CVS Pharmacy. Petitioner’s medical
history was significant for hypercholesterolemia, a left elbow fracture, Raynaud’s
syndrome and chronic left hip pain. Pet. Ex. 2 at 20; Pet. Ex. 4 at 2. Petitioner had no
history of shoulder problems at the time of vaccination.

        Two weeks later, on March 24, 2015, petitioner presented to Arlene Kavanagh,
PA-C, and Dr. Ramin Tabaddor at South County Orthopedics for complaints of left
shoulder pain. Pet. Ex. 2 at 18-19. Petitioner complained that she had been feeling
pain in her left shoulder since receiving the Tdap vaccine which she believed was given
too high in her arm. Id. On examination, Dr. Tabaddor noted that there was no soft
tissue swelling, skin lesions, lacerations or ecchymosis. Petitioner had a full range of
motion of the shoulder with discomfort beyond 45 degrees in forward flexion and
abduction. Id. Testing was limited due to petitioner’s discomfort with the procedure.
Dr. Tabaddor noted that the onset was “sudden with injury which occurred on 3/9/2015.”
Id. at 19. In his assessment, Dr. Tabaddor advised petitioner that preserving her range
of motion would be important and provided her with a referral for physical therapy (Pet.
Ex. 2 at 29). Dr. Tabaddor also instructed her to perform home exercises on her own.
Petitioner was to follow up in four weeks. Id.

        On March 30, 2015, petitioner presented to Alison E. Fisher, DPT, at OPT
Physical Therapy and Sports Medicine for a general evaluation. Pet. Ex. 7 at 1.
Petitioner reported that her left shoulder had been painful since her Tdap injection, that
she had trouble falling asleep, and she felt weakness and difficulty moving her arm at
times. Id. On examination, petitioner’s range of motion was noted to be limited in her
left shoulder on flexion, abduction, external and internal rotation. Id. She also had

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decreased strength in her left shoulder. Id. Petitioner was prescribed a course of
physical therapy. Id. at 2.

       On April 9, 2015, Ms. Fisher noted that petitioner “no longer [had] pain into
shoulder flexion,” and that “[patient] is making gains in painfree shoulder ROM.” Pet.
Ex. 7 at 6. During an April 16, 2015 PT visit with Ms. Fisher, petitioner reports that she
noticed less pain in her shoulder since starting physical therapy. Pet. Ex. 7 at 8. She
was only experiencing pain with certain movements and was able to use her left arm
more since starting physical therapy. Id. Petitioner did state that she was having
trouble lifting her daughter and reaching laterally and behind her back. Id. The
objective assessment notes from that visit show that petitioner’s range of motion and
strength in her left shoulder were improving. Id.

        On April 21, 2015, petitioner again presented to Ms. Kavanagh and Dr. Tabaddor
for a follow-up appointment. Pet. Ex. 2 at 16. Petitioner reported that she experienced
some improvement in her symptoms since her last appointment. Id. at 17. However,
she was still experiencing pain. Petitioner was using ice and heat as needed. On
examination, Dr. Tabaddor again noted no soft tissue swelling, skin lesion, lacerations
or ecchymosis. Petitioner had a full range of motion with discomfort on full flexion and
abduction. Id. She had negative results on the Speed and Hawkins tests but positive
indications on Neer, empty can and O’Brien tests. Id. Dr. Tabaddor noted in his
assessment that he believed petitioner suffered rotator cuff tendinopathy and
impingement as a result of her Tdap shot. He further noted that petitioner was
improving with physical therapy. Petitioner was not interested in an MRI or MR
arthrogram because she was pregnant. She was instructed to follow up in six weeks.
Id.

        During PT visits on April 23 and April 28, 2015, petitioner reported that she only
felt pain in left shoulder with certain movements and activities such as driving. Pet. Ex.
7 at 11. On May 5, 2015, petitioner again reported that her left shoulder was only
painful with certain movements. Id. at 14. By May 14, 2015, petitioner reported that
while she continued to have increased pain with lateral reaching and reaching behind
her back, she was now able to lift her daughter with less pain. Id. Petitioner was
discharged from physical therapy on May 14, 2015, because “[t]he patient will no longer
benefit from skilled PT interventions.” Id. at 18.

         On June 1, 2015, petitioner presented to Dr. Tabaddor for a follow-up
appointment. Petitioner noted that she was still experiencing pain in her left shoulder
but that she was continuing to see some improvement in her symptoms. Pet. Ex. 2 at
14. She had attended physical therapy and now had a better range of motion. Id.
Petitioner was not taking any medication at that time for her pain. Id. On inspection of
the left shoulder, Dr. Tabaddor noted that she had full range of motion and results of the
Hawkins, Yergason and Speed tests were all negative. She did have positive signs on
the Neer test but Dr. Tabaddor noted that petitioner had “full strength throughout” her
left shoulder. Id. Dr. Tabaddor noted that petitioner still had pain along the
supraspinatus and that it was “most likely from her tetanus injection into the muscle
itself.” Id. Petitioner was instructed to follow up in 4-5 weeks for a repeat clinical
evaluation to assess her condition. Id.



                                             3
        Petitioner next presented to Dr. Tabaddor and Ms. Kavanagh for a follow-up
appointment on July 7, 2015. Pet. Ex. 2 at 12. Petitioner stated she had a flare up in
her left shoulder approximately one week prior. She was unsure if she strained her
shoulder or if her pain was caused by holding her one-month old baby. Petitioner stated
that she was attending physical therapy and using ice and heat to treat her pain. Id. On
examination, Dr. Tabaddor noted that petitioner had full range of motion in flexion,
extension, abduction, and internal/external rotation. Id. at 13. She also had full strength
in the supraspinatus, infraspinatus and subscapularis tendons. She had a positive
result on the Neer’s test but negative findings on the O’Brien, empty can, and Yergason,
Speed, Hawkins and crossover tests. In his assessment, Dr. Tabaddor acknowledged
that petitioner continued to experience pain in her left shoulder, but that she would
continue working with physical therapy to treat her pain. Id. She was scheduled to
follow up in four weeks.

        On August 3, 2015, petitioner presented to Dr. Tabaddor for complaints of pain in
her right hip and left shoulder. Petitioner stated that her left shoulder pain felt the same
and that she was taking Ibuprofen for pain management. Pet. Ex. 2 at 10. At this time,
petitioner was attending physical therapy once a week for both her left shoulder and
right hip. On examination, petitioner’s left shoulder showed no signs of soft tissue
swelling, skin lesions, lacerations, or ecchymosis. She had a full range of motion of the
shoulder and negative results on the Speed, Neer, Hawkins, Yergason, O’Brien and
empty can test. Id. at 11. Petitioner had “near full strength throughout [the]
supraspinatus and infraspinatus musculature.” Id. Petitioner told Dr. Tabaddor that her
left shoulder continued to be painful but she started her own gym exercise program. Id.
Dr. Tabaddor recommended that petitioner discuss her gym program with her physical
therapist to ensure she was not causing any increase in pain. Id. She was instructed to
follow up in six to eight weeks. Id.

        On September 21, 2015, petitioner presented to Dr. Tabaddor for a follow-up
examination. Pet. Ex. 2 at 8. Petitioner complained of pain in her left shoulder and
stated that physical therapy had afforded some relief, but that she was no longer
attending. Petitioner stated that she periodically took ibuprofen for the pain. Id. at 8-9.
Upon examination, Dr. Tabaddor noted that petitioner’s left shoulder showed no signs of
soft tissue swelling, ecchymosis or skin lesions. He noted that she had full range of
motion of the shoulder, but that there was a “palpable defect at the deltoid laterally.” Id.
at 9. The results of the Neer and Hawkins tests were negative. In his assessment, Dr.
Tabaddor noted that petitioner had continued to experience pain along her left shoulder
and right hip for a “considerable amount of time.” He noted that her left shoulder pain
began after she received a tetanus shot “too superior” into her deltoid. He again notes
that petitioner had “a palpable defect at the area of the deltoid” and that [h]er
impingement signs” were still present. Id. Dr. Tabaddor ordered an MRI of petitioner’s
right hip and left shoulder to better evaluate her condition. Id.

       Petitioner underwent an MRI of her left shoulder on October 2, 2015. Pet. Ex. 2
at 24; Pet. Ex. 3 at 2. The MRI revealed mild tendinosis of the rotator cuff and minimal
subacromial subdeltoid bursitis. Id.

       On October 6, 2015, petitioner returned for a follow-up visit with Dr. Tabaddor.
Pet. Ex. 2 at 5-7. Petitioner continued to complain of pain in her right hip and left
shoulder. Upon examination, Dr. Tabaddor noted that petitioner had no soft tissue

                                             4
swelling ecchymosis, or skin lesions. Pet. Ex. 2 at 6. The empty can, Hawkins, Neer,
Speed and O’Brien tests were negative. It was noted that petitioner’s shoulder was
“non-tender throughout” and she had “full range of motion of the shoulder.” Dr.
Tabaddor’s assessment was that petitioner had “no obvious abnormality or defect” of
her left shoulder and right hip. Dr. Tabaddor recommended that petitioner continue to
monitor and observe her condition and follow up when needed. Pet. Ex. 2 at 7.

         On August 29, 2016, petitioner filed an affidavit and an affidavit from her
husband. Pet. Exs. 5-6. Petitioner describes that she felt “extreme pain” in her left
shoulder immediately following her vaccination. She stated that being a pharmacist
who routinely administers vaccines, she knew right away that the placement of the
vaccine was too high on her shoulder. Id. Petitioner explains that when she went to
South County Orthopedics, “Dr. Tabaddor was unable to offer [her] cortisone injections,
prescriptions for pain medication, or an MRI. Instead, he gave me a series of physical
therapy exercises for my shoulder.” Id. at 1, ¶5. Petitioner states she had “little
success” with physical therapy and that she became upset because there was little she
could do for the pain while pregnant. Id. at 2, ¶7. As a result, she was unable to pick
up her daughter from her crib, vacuum the floors around her house or even dress
herself. Id. at ¶8. When her son was born, petitioner’s shoulder injury affected her
ability to perform “the most basic duties of a new mother” including nursing and
comforting her child. Id. at ¶9. After her son was born, petitioner underwent an MRI
which shows she had tendinosis of her supraspinatus and infraspinatus as well as fluid
collection in her subacromial bursa. Id. at ¶10. When she followed up with Dr.
Tabaddor regarding her MRI results, he told her that there was little he could do to help
her injury. Id. at 2-3, ¶11. Petitioner states that her abilities as a pharmacist, wife and
mother have changed significantly and that she is no longer physically active. She
continues to have pain and discomfort in her left shoulder to this day. Id. at 3, ¶12.

        Petitioner’s husband, Daniel Desrosiers, states in his affidavit that petitioner
“began complaining of pain before we even left the doctor’s office.” Pet. Ex. 6 at 1. He
states that petitioner lost all functional use of her shoulder and that it was necessary for
him to assist her to do “anything and everything” that required the use of two hands. Id.
This included lifting, feeding or dressing their one-year old daughter. Mr. Desrosiers
also stated that his wife’s physician told them that because of the pregnancy,
petitioner’s treatment options were limited. After petitioner gave birth to their child and
underwent an MRI, Dr. Tabaddor told them that her shoulder was “so inflamed that it
could have caused permanent damage to her left shoulder.” Id. at 1-2, ¶6. Mr.
Desrosiers explains that his wife’s injury forced him to take care of the children so that
she could rest and that he observed her in pain and stressed from her injury. Id. at ¶8.

   III.   Contentions of the Parties

        Respondent argues that based on the record in this case, it appears that
petitioner had a mild should injury and recovered after just seven months.
Respondent’s Brief (“Resp. Brief”) at 1. Respondent notes that although petitioner
argues that her shoulder pain is severe, physically inhibiting, and likely permanent, the
medical records do not support her assertions and thus do not permit a pain and
suffering award near the upper end of the compensation scale. Id. at 5. Respondent
further argues that:

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         petitioner’s medical records are marked by the absence of significant pain,
         disability, and medical care, notably the lack of: surgery or other medical
         procedures; steroids or injections; prescription pain medications; ongoing
         or significant impairment in range of motion; ongoing or significant loss of
         strength; physical therapy sessions since May 2015; obvious physical
         abnormalities or defects (as of October 6, 2015); and medical visits since
         October 6, 2015.”

Id. Respondent emphasizes that the medical records demonstrate that petitioner’s
shoulder injury was improving with physical therapy, and that she has failed to explain
why she did not receive steroids, take pain medication or resume physical therapy after
giving birth. Resp. Brief at 6-7. Respondent notes that petitioner resumed physical
therapy for her hip after she gave birth at the same rehabilitation facility she had been
going to for her shoulder. Given these factors, respondent proposes a pain and
suffering award of $45,000.00 and cites to a number of cases where similar amounts for
pain and suffering were awarded by the special master. See id. at 7-8.

        Petitioner requests an award of $90,000.00 for her pain and suffering.
Petitioner’s Brief (“Pet. Brief”) at 6. Petitioner emphasizes that she was pregnant at the
time of vaccination and in the months that followed and could not receive cortisone
injections, prescriptions for pain medication, or an MRI. Id. at 2. She states that she
faithfully participated in physical therapy for six weeks at which time her therapy was
discontinued because it was determined that she would no longer benefit from
additional physical therapy. Id. Seven months after vaccination, she was still
experiencing pain in her left shoulder and this was confirmed by an MRI conducted on
October 2, 2015, which revealed rotator cuff tendinosis and subacromial bursitis. Id. In
her brief, petitioner argues that respondent routinely files proffers in SIRVA cases. Id. at
3. Petitioner cites to seven SIRVA cases where petitioner was awarded damages,
including damages for pain and suffering only, from a range of $70,000 to $100,000.
She references her affidavit where she describes the impact her shoulder injury has had
on her life and her ability to work and care for her family.

   IV.      Discussion

        After a review of the entire record as well as the parties’ briefing, the undersigned
finds that $85,000.00 represents a fair and appropriate amount of compensation for
petitioner’s past and future pain and suffering. This amount accounts for the fact that
petitioner was pregnant at the time she received the Tdap vaccination and therefore
could not take advantage of the typical treatment of a shoulder injury such as
prescription pain medications, steroids injections, and surgery. Moreover, the fact that
petitioner was pregnant, had a child, and was limited in caring for her child due to her
injury, adds value to her claim. In her affidavit, petitioner describes her frustration and
the difficultly she encountered after her son was born. Pet. Ex. 5 at 2. She describes
how difficult it was to nurse her newborn child and to pick him up from his crib each time
he needed to be changed, or fed or comforted. Id. After giving birth, petitioner did
undergo an MRI of her left shoulder which showed rotator cuff tendinosis and
subacromial bursitis. Id. at 2-3; Pet. Ex. 2 at 24; Pet. Ex. 3 at 2. She relied on Dr.
Tabbador’s statement that there was little he could do to help her with her shoulder
injury. Id. The medical records also show that petitioner had a “palpable” defect in her
                                              6
deltoid at the vaccination site and continued evidence of an ongoing shoulder injury in
October 2015, seven months after vaccination. She also continued to have positive
impingement signs for a considerable period of time. The pain and suffering award
takes into account these specific facts and circumstances.

        The undersigned has reviewed all the cases cited by both petitioner and
respondent to support their respective positions on the appropriate amount of pain and
suffering. Each case is very fact specific and no single decision or award of
compensation necessarily accounts for the specific circumstances in this case.
However, the Curtis and Ponsness provide a frame of reference for damages here.
Petitioner’s attorney, Paul Brazil, was counsel of record in both those cases and
provided additional details regarding the facts of those cases and the breakdown of
damages in petitioner’s brief. In Curtis, petitioner was awarded $90,000 for pain and
suffering in a SIRVA claim. Curtis v. Sec'y of Health & Human Servs., No. 16-85V,
2016 WL 3742299, at *1 (Fed. Cl. June 3, 2016). Petitioner explains, however, that
while petitioner had two steroid injections, he did not participate in physical therapy. In
Ponsness, petitioner was diagnosed with subacromial bursitis, received three steroid
injections, and had physical therapy for seven months. She was awarded $95,000 in
damages for pain and suffering. Ponsness v. Sec'y of Health & Human Servs., No. 15-
826V, 2015 WL 10761228, at *1 (Fed. Cl. Spec. Mstr. Dec. 18, 2015).

      Based on the record as a whole, the undersigned finds that $85,000.00, is an
appropriate award for pain and suffering in this case.

    V.      Conclusion

       For all of the reasons discussed above, and based on consideration of the
record as a whole, the undersigned finds that $85,000.00 represents a fair and
appropriate amount of compensation for petitioner’s past and future pain and
suffering. In addition, the undersigned finds that petitioner is entitled to
compensation for $336.20 in past unreimbursed medical expenses.

       Therefore, the undersigned awards petitioner a lump sum payment of
$85,336.20, in the form of a check payable to petitioner. This amount represents
compensation for all items of damages that would be available under 42 U.S.C. §
300aa-15(a). Id. In the absence of a motion for review filed pursuant to RCFC
Appendix B, the clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master



3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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