         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1892V
                                      Filed: April 24, 2019
                                         UNPUBLISHED


    KERI ANNE BORDELON,

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

                       Respondent.


Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

       On December 6, 2017, 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 right shoulder injury as a result of
her October 4, 2016 influenza (“flu”) vaccination. Petition at 1. The case was assigned
to the Special Processing Unit of the Office of Special Masters. For the reasons
discussed below, the undersigned now finds that petitioner is entitled to compensation
in the amount of $75,000.00.




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 Because this unpublished decision contains a reasoned explanation for the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).
        I.       Procedural History

       On November 2, 2018, respondent filed a Rule 4(c) Report in which he conceded
that petitioner’s injury constituted a Table injury of a shoulder injury related to vaccine
administration (“SIRVA”). Subsequently, on November 6, 2018, a ruling on entitlement
issued finding petitioner entitled to compensation for SIRVA.

       After briefly attempting to resolve damages informally, petitioner advised on
November 20, 2018, that the parties had agreed to resolve damages through written
briefing. The parties further confirmed on December 20, 2018, that they are not
amenable to mediation of this case and that the damages at issue are limited to
compensation for petitioner’s pain and suffering.

        In addition to allowing the parties the opportunity to file separate briefs setting
forth their respective positions regarding the damages in this case, the undersigned also
ordered the parties to file a comprehensive joint stipulation of facts including “a
complete narrative of petitioner’s relevant medical course as it relates specifically to
damages, especially including any notions in the medical records addressing the nature,
severity, and duration of petitioner’s pain and any limitations in range of motions.”3

       On March 14, 2019, petitioner filed on behalf of the parties the required joint
stipulation of facts. On April 1, 2019, the parties filed their respective briefs.
Accordingly, this case is now ripe for an award of damages.

        II.      Factual History

        By way of factual recitation of petitioner’s medical history, the parties’ joint
stipulation of facts is appended hereto and is incorporated by reference. Additionally,
however, the undersigned has reviewed the entire record and bases her decision on the
record as a whole. In addition to her medical records, petitioner also filed two sworn
statements as well as affidavits by her ex-husband and mother. See Exs. 9, 11-13.
Petitioner stresses, in particular, the effect her injury has had on her ability, as a single
mother, to be active with her three children (ages 10, 11, and 15) as well as with her
three dogs. Ex. 13, pp. 1-2. Petitioner also indicated that she continued with a home
exercise plan after ending physical therapy and that she continues to experience pain,
stiffness, and limited range of motion. Id. at 2. Neither party raised any factual disputes
in their separate briefs. 4




3The undersigned further instructed that any contested facts should be addressed in the parties’ separate
briefs.

4 Petitioner reiterated the stipulated facts, adding only a citation to petitioner’s affidavit indicating that she
continues her home exercise program to the present day. ECF No. 32, pp. 2-5. Respondent incorporated
the parties’ stipulated facts by reference without raising any additional facts. ECF No. 33, p. 1.

                                                        2
        III.    Party Contentions

        As noted above, the parties filed separate briefs in addition to their joint
stipulation of facts. In her brief, petitioner asserts that she should be awarded
$94,950.00, consisting of $90,000.00 in compensation for past pain and suffering and
$5,000.00, reduced to a net present value of $4,950.00, in compensation for her future
pain and suffering for the next year. 5 ECF No. 32, pp. 1, 10. As noted above, she has
confirmed that she is not seeking compensation for lost wages or out-of-pocket
expenses. In her brief, petitioner stresses the degree to which her injury impacted her
life beyond what is, or would be, reflected in her medical records. ECF No. 32, pp. 5-
10.

       Respondent contends, however, that $55,000.00 would constitute reasonable
compensation in this case. 6 ECF No. 33, p. 1. Respondent argues that the medical
records reflect only a minimally debilitating injury, requiring only conservative treatment
and limited in its duration, and that petitioner’s claims of ongoing sequalae are not
supported by her medical records. Id. at 3-5. The undersigned has reviewed the
parties’ briefs and has considered the parties’ arguments regarding the facts of this
case and the relevant case law.

        IV.     Discussion

                A. Legal Standard

       Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
an award not to exceed $250,000.” § 15(a)(4). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. Sec’y Health & Human
Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
Medical records are the most reliable evidence regarding a petitioner’s medical
condition and the effect it has on her daily life. Shapiro v. Sec’y Health & Human
Servs., 101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt that the decisional law in
the vaccine area favors medical records created contemporaneously with the events
they describe over subsequent recollections.”)

       There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. See I.D. v. Sec’y 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 Health & Human Servs., No. 93-172V, 1996
5Petitioner cites Young, infra, a non-SPU SIRVA case as well as the prior SPU decisions Desrosier, infra,
and Marino, infra.
6 Respondent cites H.S. v. Sec’y Health & Human Servs., No. 14-1057V, 2014 WL 6155891 (Fed. Cl.
Spec. Mstr. Sept. 24, 2015), as “some context for pain and suffering awards generally.” ECF No. 33, p. 5.
However, the undersigned has previously found that the award in H.S., relating to an asymptomatic skull
fracture, is not sufficiently analogous to SIRVA injuries to be helpful in resolving a SIRVA case. See Kim,
infra; Young, infra. Respondent also cites Knauss, infra, and several proffered amounts from prior cases.

                                                     3
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. See I.D., 2013 WL 2448125, at *9;
McAllister v. Sec’y 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 this case.
See, e.g. Jane Doe 34 v. Sec’y 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 also
may rely on her own experience adjudicating similar claims. 7 See Hodges v. Sec’y
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 Health & Human Servs., 109 Fed. Cl. 579 (2013).

       In Graves, Judge Merrow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merrow noted that this constituted “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl.
at 590. Instead, Judge Merrow assessed pain and suffering by looking to the record
evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595.

                  B. History of SIRVA Settlement and Proffer

      SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2019, 1,023 SIRVA cases have informally resolved 8 within the Special
Processing Unit since its inception in July of 2014. 9 Of those cases, 602 resolved via
the government’s proffer on award of compensation, following a prior ruling that




7From July 2014 until September 2015 the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases have remained on the undersigned’s docket.
8   Additionally, 31 claims alleging SIRVA have been dismissed within the SPU.

9 In Kim, infra, and Young, infra, the undersigned previously described SPU SIRVA case resolutions

through July 1, 2018.


                                                     4
petitioner is entitled to compensation. 10 Additionally, 395 SPU SIRVA cases resolved
via stipulated agreement of the parties without a prior ruling on entitlement.

        Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $77,000.00 to $125,000.00. 11 The median award is $100,000.00.
In most instances, these awards are presented by the parties as a total agreed upon
dollar figure without separately listed amounts for expenses, lost wages, or pain and
suffering.

      Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $95,000.00. 12 The median award is $70,000.00. As with proffered
cases, in most instances, stipulated awards are presented by the parties as a total
agreed upon dollar figure without separately listed amounts for expenses, lost wages, or
pain and suffering. Unlike the proffered awards, which purportedly represent full
compensation for all of petitioner’s damages, stipulated awards also typically represent
some degree of litigative risk negotiated by the parties.

                C. Prior Decisions Addressing SIRVA Damages

       In addition to the extensive history of informal resolution, the undersigned has
also issued 14 reasoned decisions as of the end of March of 2019 addressing the
appropriate amount of compensation in prior SIRVA cases within the SPU. 13

                         i.      Below-median awards limited to past pain and suffering

       In six prior SPU cases, the undersigned has awarded compensation for pain and
suffering limited to compensation for actual or past pain and suffering that has fallen
below the amount of the median proffer discussed above. These awards ranged from



10Additionally, there have been 16 prior cases in which petitioner was found to be entitled to
compensation, but where damages were resolved via a stipulated agreement by the parties rather than
government proffer.

11Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 16 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $122,886.42. For these awards, the second and third quartiles range from
$90,000.00 to $160,502.39.

12 Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.

The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
13 An additional case, Young v. Sec’y Health & Human Servs., No. 15-1241, cited by petitioner, was
removed from the SPU due to the protracted nature of the damages phase of that case. In that case the
undersigned awarded $100,000.00 in compensation for past pain and suffering and $2,293.15 for past
unreimbursable expenses. 2019 WL 664495 (Fed. Cl. Spec. Mstr. Jan. 22, 2019). A separate reasoned
ruling addressed the amount awarded. 2019 WL 396981 (Fed. Cl. Spec. Mstr. Jan. 4, 2019).


                                                      5
$60,000.00 to $85,000.00. 14 These cases have all included injuries with a “good”
prognosis, albeit in some instances with some residual pain. All of these cases had
only mild to moderate limitations in range of motion and MRI imaging likewise showed
only evidence of mild to moderate pathologies such as tendinosis, bursitis or edema.
The duration of injury ranged from seven to 21 months and, on average, these
petitioners saw between 11 and 12 months of pain.

       Significant pain was reported in these cases for up to eight months. However, in
most cases, these petitioners subjectively rated their pain as six or below on a ten-point
scale. Only the petitioners in Kim and Attig reported pain at the upper end of the ten-
point scale. Most of these petitioners pursued physical therapy for two months or less
and none had any surgery. Only two (Attig and Marino) had cortisone injections.
Several of these cases (Knauss, Marino, Kim, and Dirksen) included a delay in seeking
treatment. These delays ranged from about 42 days in Kim to over six months in
Marino.

        Two of the petitioners (Marino and Desrosier) had significant lifestyle factors that
contributed to their awards. In Marino, petitioner presented evidence that her SIRVA
prevented her from her avid tennis hobby. In Desrosier, petitioner presented evidence
that her pregnancy and childbirth prevented her from immediately seeking full treatment
of her injury.

                       ii.     Above-median awards limited to past pain and suffering

     Additionally, in five prior SPU cases, the undersigned has awarded
compensation limited to past pain and suffering falling above the median proffered
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00. 15 Like

14 These cases are: Knauss v. Sec’y Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl.
Spec. Mstr. May 23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable
medical expenses); 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); Attig v. Sec’y Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl.
Spec. Mstr. Feb. 19, 2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable
medical expenses); Kim v. Sec’y Health & Human Servs., No. 17-418V, 2018 WL 3991022 (Fed. Cl.
Spec. Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable
medical expenses); Desrosiers v. Sec’y Health & Human Servs., No. 16-224V, 2017 WL 5507804 (Fed.
Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and $336.20 in past
unreimbursable medical expenses); Dirksen v. Sec’y Health & Human Servs., No. 16-1461V, 2018 WL
6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56
in unreimbursable medical expenses).
15
  These cases are: Cooper v. Sec’y Health & Human Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl.
Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $3,642.33 in unreimbursable
medical expenses); Knudson v. Sec’y Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed.
Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $305.07 in
unreimbursable medical expenses); Collado v. Sec’y Health & Human Servs., No. 17-225V, 2018 WL
3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and suffering and $772.53
in unreimbursable medical expenses); Dobbins v. Sec’y Health & Human Servs., No. 16-0854V, 2018 WL
4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for pain and suffering and
$3,143.80 in unreimbursable medical expenses); Reed v. Sec’y of Health & Human Servs., No. 16-

                                                  6
those in the preceding group, prognosis was “good.” However, as compared to those
petitioners receiving a below-median award, these cases were characterized either by a
longer duration of injury or by the need for surgical repair. Four out of five underwent
some form of shoulder surgery while the fifth (Cooper) experienced two full years of
pain and suffering, eight months of which were considered significant, while seeking
extended conservative treatment. On the whole, MRI imaging in these cases also
showed more significant findings. In four out of five cases, MRI imaging showed
possible evidence of partial tearing. 16 No MRI study was performed in the Cooper case.

        During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately. Time to first treatment ranged from five days to 43 days. Duration of
physical therapy ranged from one to 24 months and three out of the five had cortisone
injections.

                         iii.    Awards including compensation for both past and future
                                 pain and suffering

        In three prior SPU SIRVA cases, the undersigned has awarded compensation for
both past and future pain and suffering. 17 In two of those cases (Hooper and Binette),
petitioners experienced moderate to severe limitations in range of motion and moderate
to severe pain. The Hooper petitioner underwent surgery while in Binette petitioner was
deemed not a candidate for surgery following an arthrogram. Despite significant
physical therapy (and surgery in Hooper), medical opinion indicated that their disability
would be permanent. In these two cases, petitioners were awarded above-median
awards for actual pain and suffering as well as awards for projected pain and suffering

1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for pain and
suffering and $4,931.06 in unreimbursable medical expenses).
16 In Reed, MRI showed edema in the infraspintaus tendon of the right shoulder with a possible tendon
tear and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness
partial tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial
thickness tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and
moderate sized joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a
partial bursal surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild
longitudinally oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and
infraspinatus tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the
posterior-superior-lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site,
and minimal subacromial-subdeltoid bursitis.
17
  These cases are: Dhanoa v. Sec’y Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl.
Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
Health & Human Servs., No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for
projected pain and suffering, and $7,101.98 for past unreimbursable medical expenses); and Hooper v.
Sec’y Health & Human Servs., No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019)
(awarding $185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years
for projected pain and suffering, $37,921.48 for lost wages).

                                                     7
for the duration of their life expectancies. In the third case (Dhanoa), petitioner’s injury
was less severe than in Hooper or Binette; however, petitioner had been actively
treating just prior to the case becoming ripe for decision and her medical records
reflected that she was still symptomatic despite a good prognosis. The undersigned
awarded an amount below-median for actual pain and suffering, but, in light of the facts
and circumstances of the case, also awarded one-year of projected pain and suffering.

                   D. The Appropriate Amount of Compensation in This Case

        In this case, petitioner’s injury is less severe and of a shorter duration than those
injuries which have warranted higher awards for pain and suffering. Indeed, petitioner’s
medical history closely aligns with those SIRVA cases described above which have
received below-median awards.

        Petitioner received her injury-causing vaccination on October 4, 2016. Ex. 1.
She first sought treatment for her shoulder pain approximately two weeks after her
vaccination. Ex. 2, p. 5. At that time, she described her pain as “9/10 at worst.” Id.
She reported pain with motion and examination revealed mild limitations in range of
motion. 18 She was diagnosed with subacromial bursitis and administered a steroid
injection. Id. at 9. The benefit of the steroid injection wore off after about 15 days and
petitioner returned to her physician complaining of discomfort with passive range of
motion. Id. at 28. Thereafter, she attended six physical therapy sessions over the
course of one month. See, e.g. Ex. 3, p. 24.

       At her initial physical therapy evaluation, she rated her pain as an 8/10. Ex. 3, p.
10. However, by the time of her discharge on December 9, 2016, she rated her pain
only at 2/10. 19 Id. at 93. She was released with a home exercise program. Id.
Subsequent MRI findings included mild supraspinatus tendinosis, mild degenerative
changes, trace joint effusion, and a small amount of fluid in the subcoracoid bursa. No
rotator cuff tear was present. Ex. 3, pp. 110-11. Petitioner later attended an additional
ten sessions of physical therapy between May and June of 2017 and “was making good
progress” at the time she discontinued physical therapy on June 7, 2017. 20 Her medical
records contain no further reference to her shoulder condition.

     In total, petitioner experienced eight months of documented pain and suffering;
however, her records reflect that her pain improved significantly after about two months.

18The parties’ joint stipulation of facts does not discuss these findings of reduced range of motion. They
are located at Ex. 2, p. 8. For example, forward flexion and abduction were both 160º. Id.

19   In a subsequent orthopedic visit on April 10, 2017, as 5/10 at worst. Ex. 5, p. 2.

20The parties’ joint stipulation was limited to noting petitioner’s good progress at the conclusion of her
therapy. The undersigned further notes, however, that petitioner’s discharge summary indicates (by
check mark) that she achieved full goal completion. Ex. 2, p. 17. Nonetheless, individual notations
indicate that she still had a 10% level of impairment with regard to changing body positions, carrying and
moving objects, and self-care. Id. Her range of motion was listed at 168º flexion, 162º abduction, and 48º
extension while her goals were 175º, 165º, and 50º respectively. Id. at 3.


                                                         8
She experienced only mildly reduced range of motion and her MRI findings suggest only
a mild condition. In her affidavit, petitioner described additional ongoing sequela,
including an ongoing impact on her family life, but these reports are not fully reflected in
her medical records. 21

        The above-described course of petitioner’s condition is very similar to the prior
Kim, Marino, and Attig cases, all of which were awarded damages below the median
award for proffered SIRVA cases. In those cases, petitioners experienced from seven
to 15 total months of pain and suffering. Moreover, like this case, the Kim and Attig
petitioners reported one to three months of significant pain. All four cases included MRI
findings consistent with a mild injury. Like this petitioner, Marino and Attig each had a
cortisone injection and both Kim and Attig attended between 10 to 20 sessions of
physical therapy over the course of one to two months. Also like this case, the Kim
petitioner averred that her injury impacted her family life beyond what was reflected in
her medical records. In all four cases, petitioners had a good prognosis. Contrary to
petitioner’s assertion, the Young case is inapposite. In that case, petitioner suffered a
moderate to severe injury requiring prolonged physical therapy. 2019 WL 396981, at
*6.

        In light of all of the above, and based on the record as a whole, the undersigned
finds that $75,000.00 in compensation for past pain and suffering is reasonable and
appropriate. The undersigned does not find sufficient evidence to support any award of
future pain and suffering.

        V.      Conclusion

       For all the foregoing reasons, the undersigned awards petitioner a lump sum
payment of $75,000.00, representing compensation for petitioner’s past pain and
suffering, in the form of a check payable to petitioner, Keri Anne Bordelon. 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. 22

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master

21Although petitioner indicated that she ended her physical therapy prematurely due to work and family
obligations and not due to her improvement, she acknowledged that she only missed two further sessions
and continued with her home exercise plan. Ex. 13, p. 3. Moreover, her prognosis was good at the time
and she did not subsequently return for any further care.

22 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.


                                                      9
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS

 KERI ANNE BORDELON,
                          Petitioner,

                                        v.       Docket No.: 1:17-vv-01892

 SECRETARY OF HEALTH AND                         Chief Special Master: Nora Beth Dorsey
 HUMAN SERVICES,

                          Respondent.


                       JOINT STATEMENT OF STIPULATED FACTS

        Petitioner received the influenza vaccine in her right deltoid on October 4, 2016 at West

Gate Family Medicine, located at 2266 Albert Pike Rd, Hot Springs, AR 71913. (See Exhibit

“1”, pp.1-2).

        On October 19, 2016, Petitioner presented to Dr. Justin Walden of CHI St. Vincent with

“complaints of pain in her right shoulder,” which “began [on] October 4, 2016 after getting her

flu shot.” Petitioner described “the pain as sharp and stabbing,” 9/10 at worst, and reported “pain

with any motion away from her body and difficulty lifting objects secondary to the pain.”

Petitioner further reported pain with daily life activities when “folding clothes, driving, and

putting on/taking off [clothes],” and that she had utilized ibuprofen which “provided minimal

relief.” (​See​ Exhibit 2, pp. 2, 5, & 10-11). Examination of Petitioner’s right shoulder revealed

“tenderness to palpation.” (​See​ Exhibit 2, pp. 8). On October 19, 2016, Petitioner underwent a

right shoulder x-ray which was unremarkable. (​See​ Exhibit 2, pp. 9). Dr. Walden diagnosed

Petitioner with right shoulder subacromial bursitis, administered a steroid injection in her right

shoulder. (​See​ Exhibit 2, pp. 20)
       On November 7, 2016, Petitioner returned to Dr. Justin Walden with complaints of

ongoing right shoulder pain, which “was gone for 15 days following injection but now has

returned.” Examination of Petitioner’s right shoulder revealed “discomfort with passive range of

motion.” Dr. Walden diagnosed with subacromial bursitis versus very early adhesive capsulitis,

and prescribed “physical therapy to work on shoulder range of motion” and strengthening, and

“NSAIDs for inflammation.” (​See​ Exhibit 2, pp. 28-29).

       On November 11, 2016, Petitioner presented to CHI St. Vincent Hospital Hot Springs for

an initial physical therapy evaluation with complaints of “sharp” right shoulder pain 8/10 at

worst, “pain lifting her shoulder,” and “difficulty lifting her arm.” (​See​ Exhibit 3, pp. 10). From

November 11, 2016 through December 9, 2016, Petitioner presented for a total of six (6)

physical therapy sessions through December 9, 2016, before being discharged on a home

exercise program. On December 9, 2016, Petitioner reported ongoing right shoulder pain, rated

2/10 and increased pain with the throwing of a ball (​See​ Exhibit 3, pp. 10, 24, 93-94).

       On December 22, 2016, Petitioner underwent a right shoulder MRI which revealed “mild

supraspinatus tendinosis, mild degenerative changes along the AC and glenohumeral joints, and

trace joint effusion and small amount of fluid in the subcoracoid bursa.” (​See​ Exhibit 4, pp.16).

On December 28, 2016, Petitioner returned to Dr. Justin Walden with complaints of ongoing

right shoulder pain with noted improvement, “tightness in the shoulder and pain with movement

away from her body.” Dr. Walden diagnosed Petitioner with “right shoulder subacromial bursitis

and potential early adhesive capsulitis,” and recommended she continue with her home exercise

program. (See Exhibit 2, pp. 41-42).

       On April 10, 2017, Petitioner presented to Janice Suite, APRN of National Park
Physician Services, Orthopedic Center of Hot Spring with complaints of “aching, dull” right

shoulder pain after getting [the] flu shot” with an onset of October 4, 2016, which is aggravated

by “lifting, carrying, twisting, range of motion, and weight-bearing. Petitioner further reported

right shoulder “weakness.” Upon examination, Janice Suite diagnosed Petitioner with right

shoulder pain and injury of axillary nerve. ​(See​ Exhibit 5, pp.1-3).

        On May 3, 2017, Petitioner presented to Tri Lakes Physical Therapy for a physical

therapy evaluation, with complaints of right shoulder pain. Petitioner reported the following

physical limitations as a result of her right shoulder injury, “sleep deficits, caring for home -

cleaning, cooking, laundry, reaching a shelf-especially up high, dressing, bathing,

washing/styling hair.” (​See​ Exhibit 4, pp. 4-7). Petitioner presented for a total of ten (10)

physical therapy sessions from May 3, 2017 through June 2, 2017, before she was discharged

with a diagnosis of right shoulder pain and loss of function, mild supraspinatus tendinosis, mild

DJD, and subcoracoid bursa fluid. (​See​ Exhibit 4, pp. 1-3, & 5-17). A PT discharge note dated

July 18, 2017, indicates that, following ten sessions, petitioner “was making good progress with

physical therapy treatment,” but on June 7, 2017, had called to inform them that she was “unable

to continue physical therapy at this time.” (​See​ Exhibit 4, pp. 2).

        On May 18, 2017, petitioner was seen by Kay Harris, NP, at West Gate Family Medicine

for a cough. A musculoskeletal review of systems was negative for “arthralgias, back and

myalgias,” and right shoulder pain was not mentioned. (​See​ Exhibit 6, pp. 18). On June 19,

2017, petitioner was seen by Amy Reeves, M.D., at West Gate Family Medicine for a physical,

again with no mention of right shoulder pain. (​See​ Exhibit 6, pp. 22-23).
       Respondent has reviewed this joint statement and agrees with its contents.

                                              Respectfully submitted,


                                              /s/ ​Shealene Mancuso
                                              Shealene Mancuso, Esquire
                                              Attorney for Petitioner
                                              MULLER BRAZIL, LLP
                                              715 Twining Road, Suite 208
                                              Dresher, PA 19025
                                              (215) 885-1655

Date: ​March 14, 2019
