    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1238V
                                          UNPUBLISHED


    BELINDA DAWSON-SAVARD,                                      Chief Special Master Corcoran

                         Petitioner,                            Filed: July 14, 2020
    v.
                                                                Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                     Decision Awarding Damages; Pain
    HUMAN SERVICES,                                             and Suffering; Influenza (Flu)
                                                                Vaccine; Shoulder Injury Related to
                         Respondent.                            Vaccine Administration (SIRVA)


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for respondent.


            RULING AWARDING DAMAGES – SPECIAL PROCESSING UNIT 1

        On September 12, 2017, Belinda Dawson-Savard 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 left Shoulder Injury
Related to Vaccine Administration (SIRVA) as a result of an influenza (“flu”) vaccine
administered on October 10, 2016. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.

       The parties have reached agreement on all components of damages except for
past and future pain and suffering. For the reasons described below, I find that Petitioner
is entitled to an award of damages for pain and suffering in the amount of


1
   Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I 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).
$130,000.00, representing compensation for actual past pain and suffering and
$500.00 per year for future pain and suffering.

      I.       Relevant Procedural History 3

        The parties initially attempted informal resolution of this case through settlement
discussions. ECF 56. However, after attempting informal resolution for almost one year,
Petitioner reported that the parties “are quite far apart in their respective valuations of the
case.” ECF 41. I subsequently issued a ruling “find[ing] the onset of Petitioner’s [SIRVA]
occurred within 48 hours of vaccination.” ECF 53. Respondent subsequently filed an
amended Rule 4(c) report in which he stated that he did not contest that Petitioner is
entitled to compensation. ECF 55. I issued a ruling on entitlement on December 12, 2019.
ECF 56.

       The parties then attempted (in effect for the second time) to informally resolve the
issue of damages for approximately four more months. See ECF 59, ECF 60, and ECF
61. They reached agreement on lost wages and unreimbursed expenses, 4 but reached
an impasse on the issue of pain and suffering. ECF 61. After giving the parties an
opportunity to file written briefs on this issue, I scheduled this matter for an expedited
hearing and ruling based upon all evidence filed to date and the parties’ briefing. ECF 63.
The hearing was held on June 26, 2020. 5

       In Petitioner’s initial brief and her reply brief filed in response to Respondent’s brief,
Petitioner requests that I award her $180,000.00 for past pain and suffering and
$1,500.00 per year for future pain and suffering. ECF 62 and ECF 70. Respondent, in
contrast, proposes that I award Petitioner $120,000.00 for past pain and suffering and no
future pain and suffering. ECF 67.

      II.      Legal Standard
        Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).


3
    I adopt the comprehensive procedural history set forth in ECF 53 and ECF 56.
4
 See ECF 62 and ECF 67. Specifically, the parties agree on an award of $28,030.13 in lost wages, and
$145.11 in unreimbursed expenses. Id.
5
    The transcript from the hearing has yet to be filed, but it is incorporated by reference herein.

                                                         2
       There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).

       I may also consider prior pain and suffering awards to aid my 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, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims. 6 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).

    III.    Appropriate Compensation in this SIRVA Case

       In this case, awareness of the injury is not disputed. The record reflects that at all
times, Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.

       When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents and at the expedited hearing held on June 26, 2020. I consider prior awards
for pain and suffering in both SPU and non-SPU SIRVA cases and rely upon my
experience in adjudicating those cases. 7 However, I base my determination on the
circumstances of this case.

6
  From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
7
 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a
brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of
Health & Human Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v.
Sec’y of Health & Human Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020);
Smallwood v. Sec’y of Health & Human Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr.
Apr. 29, 2020).

                                                     3
       As noted above, Petitioner received a flu vaccine on October 10, 2016. Ex 1 at 1.
Three and one-half months later, on January 24, 2017, Petitioner presented to her
Primary Care Provider (PCP) with complaints of “left shoulder pain since flu shot last
October.” Ex 3 at 47. Physical examination (PE) of Petitioner revealed limited range of
motion (ROM) of the left shoulder. Id. On February 21, 2017, Petitioner saw an
orthopedist, who reviewed her imaging studies (an x-ray and an ultrasound), which
showed bursitis and mild degenerative changes. Ex 2 at 8. Petitioner continued to have
decreased ROM and positive impingement testing and received a cortisone injection. Id.
at 10.

       In April 2017, Petitioner reported temporary relief from the steroid injection, but she
subsequently experienced a flare and visited the emergency room (ER) with complaints
of “unbearable pain.” Ex 4 at 249 and 260. She had another steroid injection two days
after her ER visit. Ex 2 at 1. Petitioner also started physical therapy at the end of April
2017, and she attended 23 visits through August 2017. Ex 4 at 278, 296-304 and Ex 7 at
8-39. During this time, Petitioner rated her pain as averaging 3/10 and she continued to
have moderately to markedly limited ROM. Ex 11 at 33, 35-36, 39, 41, 49. Petitioner was
diagnosed with adhesive capsulitis in July 2017 and had a third steroid injection on August
15, 2017. Ex 11 at 31 and 42.

         Due to her continued pain, Petitioner underwent a trigger point injection (TPI) of
lidocaine into the left deltoid muscle on December 12, 2017. Ex 13 at 3. After three
additional injections in January 2018, Petitioner had “noticeable ROM improvement” but
still reported typical pain as 2-3/10 with increases up to 4-5/10. Ex 13 at 42-43 and Ex 21
at 4, 8. Petitioner was advised she could continue to work light duty during this time. Ex
13 at 43. Petitioner then received five additional trigger point injections from February
through August 2018. Ex 13 at 26, 29, 37, 39 and 66-67. During this period, Petitioner
attended an additional 12 physical therapy sessions. Ex 14.

       Petitioner then had a 13th injection on November 1, 2018. Ex 13 at 76. She had
some pain relief but was still unable to lift greater than 20 pounds. Ex 13 at 80. As of
March 20, 2019, Petitioner’s doctor reported that she had “permanent impairment” with
“loss of range of motion at the left shoulder in all planes of movement.” Id. at 81-82.
However, he also reported that Petitioner had no permanent work restrictions and was
able to perform all of the physical requirements of her job at the time of her injury. Id. In
her most recent affidavit, dated August 2019, Petitioner reports that while her overall pain
has improved since the initial injury, she still experiences pain on a daily basis. Ex 17.

       As I informed the parties during the expedited hearing conducted on June 26,
2020, 8 the question in this case is not whether Petitioner is entitled to any compensation
for her pain and suffering, but rather what amount of compensation is justified, based


8
  An official recording of the proceeding was taken by court reporter, and a link to instructions on the
court’s website detailing how to order a certified transcript or audio recording of the proceeding can be
found in the minute entries for this proceeding. Minute Entry, dated June 26, 2020; see also
www.uscfc.uscourts.gov/trans (last visited July 9, 2020).


                                                     4
upon the facts of the case and considered relevant input. This determination is not an
exact science but more of an art. While it is tempting to “split the difference” and award
an amount halfway between the amounts proposed by the parties, each petitioner
deserves an examination of the specific facts in his or her case. Thus, while the amount
ultimately awarded may end up falling somewhere in the range between the awards
proposed by both parties, this result flows from a specific analysis of Ms. Dawson-
Savard’s personal circumstances (as well as the parties’ success in framing a reasonable
range for the award).

        The evidence in this case establishes that Petitioner’s injury was on the “severe”
end of the median award amount 9 in SIRVA cases, especially when compared to other
cases where a petitioner did not undergo surgery – but not so severe as to justify an
award on the highest end of the spectrum. Petitioner had a combination of 13 steroid and
trigger point injections and attended 35 sessions of physical therapy. While she rated her
pain as averaging 3/10, her treating physician reported in August 2019 that she had a
permanent impairment with loss of range of motion in her left shoulder. However, at that
time, Petitioner had no work restrictions and was able to perform all the requirements of
the job she had at the time of her injury. Overall, these circumstances are most like those
experienced by the petitioner in Binette, in which $130,000.00 was deemed an
appropriate award for past pain and suffering. 10 The petitioner in Binette, as here, also
did not undergo surgery but was nevertheless determined to have a “permanent” injury.
Id.

        I have also considered the other cases referenced by Petitioner to support a higher
award but find them unpersuasive. Specifically, Petitioner refers to Dillenbeck v. Sec’y of
Health & Human Servs., No. 17-428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr. July 29,
2019) aff’d in rel. part, 147 Fed. Cl. 131 (2020). The petitioner in Dillenbeck worked as a
veterinary technician/office receptionist prior to her diagnosis of Guillain-Barré syndrome
following a flu vaccine but could not continue to work as a veterinary technician after her
injury (she was able to work as a receptionist). Id. In the present case, Petitioner, a nurse,
alleges that she is no longer able to do direct patient care. ECF 62. In making this
assertion, she relies on a note from her physician dated February 20, 2019, which states
“I do not think she will be able to get back to being able to work at regular duty as a nurse.”
Ex 13 at 80. However, on March 20, 2019, after a “physical capacity evaluation,” this
9
 As noted, I rely on the analysis of awards set forth in cases like Vinocur or Wilt. I reject Respondent’s
argument regarding proffered cases as the most accurate gauge of the appropriate amount, however. A
proffer is simply Respondent’s assessment of the appropriate amount to be awarded, and thus a special
master’s approval of a settlement at a proffered level does not provide a reasoned instance, produced by
a judicial neutral that can be looked to when evaluating the damages to be awarded – even if settled
cases and proffers provide some evidence of the kinds of awards received overall in comparable cases. I
have similarly given less weight to Respondent’s blanket citation to comparable tort awards obtained in
other fora in the United States, although I remain amenable in the future to consider such a case if
Respondent establishes its specific comparable value. I also observe that in time, awards in SIRVA cases
may trend lower as medical treatment for SIRVA injuries improves (thus making a lowered pain and
suffering award appropriate to reflect the less severe nature of the injury).

 Binette v. Sec’y of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr.
10

March 20, 2019).


                                                    5
same doctor recommended that Petitioner return to work at the same job she had at the
time of her injury. Id. at 81. As of March 26, 2019, Petitioner reported working three 12-
hour shifts per week as a registered nurse in a rehab ward. Ex 16 at 2. Thus, while
Petitioner’s actual pain and suffering should encompass the physical cost of her injury
and the burdens of living with it, a higher award is not justified under the facts of this case.

        As for future pain and suffering, there are very few reasoned SIRVA damages
decisions addressing this issue. In Binette, the petitioner was awarded $1000.00 per year.
2019 WL 1552620 at *1. However, the special master based this award on the petitioner’s
young age (she was 27 at the time of the hearing); that her pain generally ranged between
5-7/10 but could go as high as 10/10, even after more than three years of treatment; and
that her condition was surgically inoperable. Id. at *13-14. By contrast, in Curri v. Sec’y of
Health & Human Servs., No. 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31,
2018), the petitioner was awarded only $550.00 per year. The special master based this
award on the petitioner’s “significant arm and shoulder pain, her permanently reduced
range of motion, and the unique challenges her shoulder injury creates in her day-to-day
life as a working mother of three children.” 2018 WL 6273562 at *7.

        I find that the petitioners in Binette and Curri had additional confounding factors,
when compared with Ms. Dawson-Savard, but that the facts of this case are similar close
enough to Curri to award a comparable future pain and suffering amount. Therefore, I find
that $500.00 annually for future pain and suffering is appropriate based on the facts of
this case. That sum shall be reduced to net present value consistent with my calculation
in Dillenbeck. 2019 WL 4072069 at *15 (one percent net discount rate for the first fifteen
years of the award, followed by a two percent net discount rate for the remaining years,
based upon a predicted life expectancy of 27 years).

     IV.    Conclusion

       For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $130,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual (or past) pain and suffering and $500.00 per year
reduced to net present value, for the rest of her life expectancy, for future pain and
suffering. Ms. Dawson-Savard’s date of birth is August 20, 1961, and her remaining life
expectancy is approximately 27 years. 11 Thus, her future pain and suffering damages
total approximately $13,500.00, prior to conversion to net present value.

     In addition, I find (with agreement from the parties) that Petitioner is entitled to
compensation of $28,030.13 in lost wages and $145.11 in unreimbursed expenses.

      The parties are to file a joint status report, by no later than Thursday, August
13, 2020: (1) converting my award of future pain and suffering to its net present


11
  The Social Security Administration (SSA) calculates life expectancy. Their life expectancy calculator
can be found at https://www.ssa.gov/OACT/population/longevity.html (last visited July 10, 2020).
According to SSA’s life expectancy calculator, Ms. Dawson-Savard has an additional life expectancy of
27.0 years. She is expected to live to be 85.8 years old. Id.

                                                    6
value, 12 and (2) reporting on all outstanding items of damages that remain
unresolved, if there are any remaining issues. Once these issues have been
resolved, a damages decision will issue.


IT IS SO ORDERED.

                                        s/Brian H. Corcoran
                                        Brian H. Corcoran
                                        Chief Special Master




12
  As noted above, the parties should reduce the sum to net present value consistent with my calculation
in Dillenbeck. 2019 WL 4072069 at *15 (one percent net discount rate for the first fifteen years of the
award, followed by a two percent net discount rate for the remaining years, based upon a predicted life
expectancy of 27 years).

                                                   7
