         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-0561V
                                      Filed: April 30, 2019
                                          PUBLISHED


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

                        Respondent.


Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School,
Washington, DC, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
        On April 24, 2017, Lorin T. Pruett (“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 a left shoulder injury
related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) he received
on October 20, 2015. Petition at 5. The case was assigned to the Special Processing
Unit of the Office of Special Masters. For the reasons discussed below, the



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 published decision contains a reasoned explanation for the
action in this case, the 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).
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).

                                                      1
undersigned now finds that petitioner is entitled to compensation in the amount of
$75,944.63.


   I.       Procedural History
       Mr. Pruett filed his petition for compensation on April 24, 2017. (ECF No. 1).
Two days later, he filed six medical record exhibits in support of his petition. (ECF No.
7). On February 4, 2017, Mr. Pruett filed several additional updated medical records
exhibits. (ECF No. 9).
       On November 2, 2017, respondent filed his report pursuant to Vaccine Rule 4(c)
conceding that petitioner was entitled to compensation. The next day, November 3,
2017, the undersigned issued a ruling finding petitioner entitled to compensation. (ECF
No. 15). A damages order was issued the same day. (ECF No. 16).
        On April 4, 2018, petitioner filed a status report stating that the parties were
unable to informally resolve the damages in this case and requested a status
conference. (ECF No. 25). On April 20, 2018, the staff attorney managing this case
held a status conference to discuss the parties’ concerns. The parties explained that
the issue of disagreement was on the appropriate amount to award petitioner for his
pain and suffering. After discussing several available options, the parties elected to file
briefs on damages. (ECF No. 26). The parties have filed 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.      Factual History
        On October 20, 2015, Mr. Pruett (age 57) received a flu vaccine in his left
shoulder (non-dominant arm) at a walk-in appointment at the Kaiser Permanente (“KP”)
flu vaccination clinic at the KP Fair Oaks Medical Center in Fairfax County, Virginia.
Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1; Pet. Ex. 5 at 1. Mr. Pruett’s medical history is
significant for right shoulder pain for several years, but there is no mention of left
shoulder pain in the records dating back to 2013. Pet. Ex. 2 at 48. Mr. Pruett’s medical
history does not otherwise appear to be contributory to his claim in this case.
      In his affidavit, Mr. Pruett stated that by the time he came home from work on the
evening of October 20, 2015, his arm was very sore. Pet. Ex. 5 at 1. He stated that he
was:
         experiencing increasing pain centered in the humerus section of the
         arm where the deltoid meets the biceps/brachialis and radiating
         across the arm at that intersection. The soreness in the upper arm
         continued that day and night, varying from mild to strong pain. The
         pain slowly subsided to a 5-7 pain level during the week but again
         increased to a 9-10 pain level on October 23-25, 2015. This pain
         pattern (alternating mild to strong pain) repeated itself again the
         following weekend of November 2, 2015.
Pet. Ex. 5 at 1.


                                             2
        On November 1, 2016, Mr. Pruett telephoned the KP 24-hour nurse about his left
arm pain and to make an appointment with a physician. Pet. Ex. 5 at 2. The nurse
suggested that Mr. Pruett use heat and ice to treat his pain, alternating the two methods
until he was able to be seen by a physician. Id.
        On November 2, 2015, Mr. Pruett presented to Dr. Al-Muhannad Al-Hammod at
KP with complaints of left shoulder pain since receiving a flu vaccine on October 20,
2015. Pet. Ex. 2 at 62. Mr. Pruett reported that he thought the vaccine was given “too
high” in his deltoid area. Id. He denied having any bruising or swelling but complained
that “his left shoulder has been sore and certain movements send sharp pains down his
arm.” Id. Mr. Pruett stated that he had been taking Aleve for pain but that the
medication was not helping. Id. On examination, Dr. Al-Hammod noted a full range of
motion of the left shoulder, but that Mr. Pruett had some discomfort with range of
motion, i.e., arm raises and lateral abduction. Id. An x-ray was ordered and petitioner
was prescribed Meloxicam. Mr. Pruett was also provided with a handout for shoulder
exercises and instructed return if there was no improvement within the next two weeks.
Id.
       On November 9, 2015, Mr. Pruett underwent an x-ray of his left shoulder. Pet.
Ex. 1 at 5; Pet. Ex. 2 at 218. The results were normal. Id.
       On November 18, 2015, Mr. Pruett was seen by Dr. Marc Kouyoumdjian, an
orthopedist, for complaints of left arm pain for the past month. Pet. Ex. 2 at 64. Mr.
Pruett reported that his left shoulder pain “began immediately after flu injection.” Id. He
described the pain as intermittent with specific pain with certain rotations of the arm. Id.
Mr. Pruett complained that the pain sometimes radiated into his forearm and over his
bicep muscle. Id. The physical exam demonstrated a mild impingement sign of the left
shoulder with some limited range of motion and tenderness. Id. at 65. The assessment
was left arm pain. Id. at 64. Dr. Kouyoumdjian noted “[u]nsure of cause of pain and
association with flu vaccine. Will refer to physical medicine.” Id.
       On November 20, 2015, Mr. Pruett was seen by Dr. Allen Chiu, a physiatrist, for
an evaluation. Pet. Ex. 2 at 68. Dr. Chiu noted that Mr. Pruett “[i]nsists that pain began
after vaccine” and that it “has been present since he received his flu vaccine and has
worsened.” Id. On examination, Dr. Chiu noted normal strength of the left shoulder, but
limited range of motion and impingement. Id. Dr. Chiu noted that while he did not
know what was causing the left arm pain, Mr. Pruett’s presentation suggested “possible
rotator cuff impingement. He does have pain in his left shoulder with a Hawkins test.”
Dr. Chui further stated “[i]f all these tests are negative or do not clearly explain his
symptoms, then he very well may have pain following a flu shot in which case I’m not
sure what can be done for this besides pain management – I gave him tramadol for
breakthrough pain since he reports that the pain level is 9/10 in intensity.” Id. at 69. Dr.
Chiu prescribed Tramadol and an MRI study. Id.
       On November 24, 2015, Mr. Pruett underwent an MRI of his left shoulder. Pet.
Ex. 2 at 220. The impression was mild tendinopathy of the rotator cuff without a full-
thickness tear and mild AC joint hypertrophy. Id. On January 9, 2016, Mr. Pruett
underwent another MRI, this time of his left upper arm. Id. at 222. The impression
stated “1. No explanation for patient’s symptoms. 2. Mild AC joint hypertrophy and
edema at the AC joint. Trace physiologic subacromial/subdeltoid fluid.” Id.


                                             3
       No medical records were filed for the time period between January 9, 2016 and
June 18, 2016. However, in his affidavit, Mr. Pruett stated that from mid-January to
March, the pain level of his left shoulder was in the same range as it was in January (5-
7) and there was still pain down or across his arm depending on the position of his arm.
Pet. Ex. 5 at 4-5. He stated that as of March 2, 2016, the pain was aggravated by lifting
as light as 5-10 pounds. Id. at 5. During this time, Mr. Pruett was taking over-the-
counter Naproxen, three times daily as well as topical pain relievers.3 Id.
       On June 18, 2016, Mr. Pruett presented to Dr. Hoang-Anh Dang for continued
complaints of left arm pain. Pet. Ex. 2 at 77. Mr. Pruett denied any numbness or
weakness. Id. at 86. He also complained of “left arm – ac [antecubital – front of the
elbow region] and hypothenar discoloration/bluish hue with exertion” while brushing his
teeth. Id. The record also noted “h/o chronic L arm pain.” The physical exam showed
normal range of motion, color, strength and sensation. Id. at 78. Mr. Pruett rated his
pain level at a 4 out of 10. Id. at 80. The impression was transient arm discoloration of
unclear etiology. Id. at 77-79. A doppler ultrasound was conducted and the results
were normal. Id. at 91.
       Mr. Pruett treated at Kaiser with Drs. Ergener and Kouyoumdjian (orthopedists)
from July 2016 to November 2016. During these treatment visits, he did not report any
issues or complaints related to his left shoulder. Pet. Ex. 2 at 93-96, 121-127, 130-132,
135, 162-163; Pet. Ex. 3 at 146-147. Mr. Pruett was seen in October and November
2017, but there is no mention of any left shoulder issues. Pet. Ex. 8.
        On January 26, 2018, petitioner presented to, Dr. Spencer Tseng, to follow up on
his left arm pain and pelvic pain. Pet. Ex. 8 at 27. On examination, it was noted that
Mr. Pruett had crepitus on palpation on the muscular region of the left shoulder and mild
tenderness. Id. at 28. He was instructed to “[w]ork on massage heat on the left deltoid
region” and instructed to return in three weeks. Id. In email correspondence between
petitioner and Dr. Tseng, Mr. Pruett inquired about the buildup of scar tissue around the
vaccination site and what, treatment, would be appropriate for future medical expenses,
as well as whether surgery was an option. Pet. Ex. 9 at 1-2. Dr. Tseng did not
recommend surgery but stated that physical therapy and an ultrasound study may be
helpful. Id. at 1.4


      III.    Party Contentions

       Petitioner seeks the following award: (1) $944.63 for his past medical and
incidental out-of-pocket expenses, (2) $40,000.00 for his past pain and suffering, (3)
$8,000.00 per year for his life expectancy (20 years) adjusted to net present value
(NDR: 2%) equaling $130,811.20, and (4) $1,600.00 for his related future medical



3
  Mr. Pruett stated that he did not take the prescribed Tramadol because the pain level was not as high as
it had been and due to the side effects of the Tramadol. Pet. Ex. 5 at 4.
4
    No additional medical records have been filed.



                                                     4
expenses to treat his arm pain, for a total of $173,355.83. Petitioner’s Brief in Support
of Damages (“Pet. Brief”) at 10 (ECF No. 34).
        In support of this amount of damages, petitioner asserts that his shoulder injury
had a negative impact on his work and business and especially in the first six months of
his injury, which was at the peak delivery period of his self-employed business, and he
was greatly impeded in his ability to work. Pet. Brief at 9. Mr. Pruett describes that his
injury “took a great physical and mental toll” on him. In addition to work and activities of
daily living, Mr. Pruett states that his main recreational activity, cycling, has also been
negatively impacted by his injury. He compares the facts in his case to those in three
other decisions, Desrosiers, Dhanoa, and Marino5 in which amounts from $75,000.00 to
$85,000.00 was awarded for actual pain and suffering. Pet. Brief at 4-6. When
providing the details regarding his pain and suffering, petitioner relies heavily on the
information provided in his affidavit. Pet. Ex. 5.
        Respondent argues that petitioner should be awarded $60,000.00 as
compensation for his actual pain and suffering. Respondent’s Brief on Damages (“Res.
Brief”) at 1 (ECF No. 35). He maintains that “[p]etitioner’s SIRVA was very mild, and he
essentially recovered from it.” Id. at 11. Comparing petitioner’s facts to those in
Desrosiers, Dhanoa, and Marino, respondent asserts “all three of these cases are
factually distinguishable.” 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,6 claiming petitioner’s injury “was less severe than what
existed in Knauss.” Res. Brief at 13.


    IV.    Discussion and Analysis
       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 his 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

5
 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); 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).
6
 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).


                                                  5
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 of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125 at *9 (Fed. Cl. Spec. Mstr. May 14, 2013), originally issued
Apr. 19, 2013 (“I.D.”) (“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”).
Compensation awarded pursuant to the Vaccine Act shall include “actual and projected
pain and suffering and emotional distress from the vaccine-related injury . . . not to
exceed $250,000.” § 15(a)(4). In determining an award for pain and suffering and
emotional distress, it is appropriate to consider the severity of injury and awareness and
duration of suffering. See I.D., 2013 WL 2448125 at *9-11(citing McAllister v. Sec’y of
Health & Human Servs., No. 91-1037V, 1993 WL 777030 (Fed. Cl. Spec. Mstr. Mar. 26,
1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). In
evaluating these factors, the undersigned has reviewed the entire record, including
medical records, affidavits submitted by petitioner and others, and hearing testimony.

        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 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 also may
rely on her own experience adjudicating similar claims. See 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, it must 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).
       In Graves, the Court 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. The Court 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, the Court 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.




                                            6
                  A. 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 resolved7 within the Special
Processing Unit since its inception in July of 2014.8 Of those cases, 602 resolved via
the government’s proffer on award of compensation, following a prior ruling that
petitioner is entitled to compensation.9 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 $125,000.00.10 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 $95,000.00.11 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.
                  B. 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.12

7
    Additionally, 31 claims alleging SIRVA have been dismissed within the SPU.
8
  In Kim, infra, and Young, infra, the undersigned previously described SPU SIRVA case resolutions
through July 1, 2018.
9
 Additionally, 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.
10
   Typical 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.
11
   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.
12
  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

                                                      7
                       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
$60,000.00 to $85,000.00.13 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) delayed in seeking
treatment. These delays ranged from about 42 days in Kim to over six months in
Marino.
       Two of the petitioners (Marino and Desrosiers) 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 Desrosiers, 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


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).

13 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. 17-1029, 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).



                                                  8
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00.14 Like
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 of tendons.15 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.16 In two of those cases (Hooper and Binette),

14
  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-
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).
15
   In Reed, MRI showed edema in the infraspinatus 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.
16
  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

                                                     9
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
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.

                C. Determining Petitioner’s Award of Pain and Suffering in This Case

       In the experience of the undersigned, awareness of suffering is not typically a
disputed issue in cases involving SIRVA. In this case, neither party has raised, nor is
the undersigned aware of, any issue concerning petitioner’s awareness of suffering and
the undersigned finds that this matter is not in dispute. Thus, based on the
circumstances of this case, the undersigned determines that petitioner had full
awareness of his suffering.

                                 i. Severity and Duration of the Injury

        With respect to the severity of petitioner’s injury, Mr. Pruett’s affidavit provides a
summary of his levels of pain throughout the duration of his injury. Mr. Pruett states that
he “suffered high amounts of constant pain from the day he received his vaccination in
late October 2015 to early January 2016, a period of about two and half months.” Pet.
Brief at 9. From January 2016 to February 2017, Mr. Pruett states that his pain
subsided to a “manageable” level, but that he experienced “high levels of pain upon
‘certain arm movements, repetitive arm motions, and when carrying heavier items (over
10 pounds) with [his] left arm.” Id. at 9. During this time, Mr. Pruett states that he was
managing his pain with NSAIDs and topical ointments. When he briefly stopped this
course of treatment, his pain levels increased by 1-2 pain levels.17 Id.

       Mr. Pruett averred that over two and half years after his injury, he continues to
experience weakness and 1-3 level pains in his left arm depending on his activity. Pet.
Brief at 9; Pet. Ex. 10 at 3. He continues his daily course of NSAIDS and topical
ointments to manage the pain caused by his shoulder injury. Pet. Ex. 10 at 2. In his

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).
17
  The pain scale petitioner references is a pain scale from 1-10 with 10 being the most severe level of
pain.

                                                    10
brief, petitioner states “[a]fter conversations with his doctor about scar tissue, Petitioner
believes that his recovery has ‘plateaued,’ and that he will live with his current pain and
limitations on his ‘injured arm’s strength and stamina’ for the rest of his life.” Id. at 9.
Mr. Pruett also “believes” that he will have to continue using the NSAIDS, topical
ointments, and massages to manage his pain with the possibility of physical therapy in
the future. Pet. Brief at 9. He states that while his pain has lessened since the initial
injury, he is never pain free. Id.

       The undersigned acknowledges and finds that Mr. Pruett suffered severe
shoulder pain from the time he received the flu vaccination at issue in this case on
October 20, 2015 to early January 2016 – a period of approximately two and half
months. He first sought treatment approximately 12 days after his vaccination. Pet. Ex.
2 at 2. At that time, he had full range of motion of his shoulder and there was noted
“discomfort” on examination (although no pain level rating was provided). In his
November 20, 2015 appointment, Dr. Chiu, petitioner reported that his pain was at a
9/10 intensity. Pet. Ex. 2 at 69. On examination, Mr. Pruett exhibited a mild
impingement sign of the left shoulder with some limited range of motion and tenderness.
Id. An MRI showed mild tendinopathy of the rotator cuff without a full-thickness tear and
mild AC joint hypertrophy. Id. at 220.
       Although Mr. Pruett averred that he continued to experience some pain and
limited range of motion of his left shoulder from mid-January 2016 to June 18, 2016,
which he treated with over-the-counter medications and massages, he did not receive
any formal treatment for his shoulder during this time, admitting that his pain levels were
“manageable.” Pet. Brief at 9. By June 2016, he had full range of motion of his left
shoulder although he rated his pain level at a 4 out of 10. Pet. Ex. 2 at 80. From July
2017 to mid-January 2018, the medical records do not reflect any reports of shoulder
pain or injury. Pet. Ex. 2 at 93-96, 121-127, 130-132, 135, 162-163; Pet. Ex. 3 at 146-
147. Although in his most recent medical records, there is documentation of “mild
crepitus on palpation on the muscular region of his left shoulder and mild tenderness,”
Mr. Pruett’s physician did not document that there was scar tissue present in the left
shoulder. Pet. Ex. 9 at 1-2. Surgery was not recommended although Dr. Tseng did
suggest that physical therapy would be helpful. Id. The records do not reflect that Mr.
Pruett received any steroid injections nor did he ever attend physical therapy.
                            ii. Effect on Personal Life
        Mr. Pruett argues that his shoulder injury had “a great negative impact on [his]
work and business in the first 6 months when the pain was most severe, a medium
impact in late 2016 to early 2017, and only a very minor impact today.” Pet. Ex. 10 at 2.
Mr. Pruett is self-employed and works in geographic information systems, primarily as a
builder of software databases. Id. Mr. Pruett stated that he generally spends eight to
twelve hours working at the computer during his busy season. Petitioner’s injury
occurred in October 2015, coinciding with his peak delivery period, and greatly impeded
his ability to do his work in the first six months of his injury. Id. Although Mr. Pruett has
made no claim for lost wages, he argued that his efforts to minimize the impact of his
injury “took a great physical and mental toll” on him. Id. at 2-3.


                                              11
       In addition, Mr. Pruett stated that he enjoys cycling, and would previously ride up
to 100 miles on his road bike during events. Pet. Ex. 10 at 2-3. Currently, the “baseline
pain” in his left arm and shoulder aggravated when he rides for longer distances or
when he rides more frequently. Id. He states that there is no aspect of his life that has
not been impacted by his injury.

                             iii. Past Pain and Suffering
        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.
        In total, petitioner experienced eight months of documented pain and suffering;
however, his records reflect that his pain improved significantly after about two and a
half months. He experienced only mildly reduced range of motion and his MRI findings
suggest only a mild condition. In his affidavit, petitioner described additional ongoing
sequela, including an ongoing impact on his personal and work life, but these reports
are not fully reflected in his medical records. Petitioner did not have any steroid
injections and he did not undergo any physical therapy.
        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 case, the Kim petitioner averred that her
injury impacted her family life beyond what was reflected in the medical records. In all
four cases, petitioners had a good prognosis.
        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. As discussed below, the undersigned does not find sufficient evidence to
support any award of future pain and suffering.
                             iv. Future Pain and Suffering
       In his brief, Mr. Pruett argues that he believes his recovery has “plateaued,” and
that he will live with his current pain and limitations for the rest of his life. Pet. Brief at 9.
Because of this, Mr. Pruett argues that he is entitled to an award for future pain and
suffering.

        Petitioner bears the burden of proof with respect to each element of
compensation requested and the medical records are the most reliable evidence of
petitioner’s condition. Brewer v. Sec’y of Health & Human Servs., No. 93-92V, 1996 WL
147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996); Shapiro v. Sec’y of Health &
Human Servs., 101 Fed. Cl. 532, 537-38 (2011). Based on Mr. Pruett’s medical records
and the lack of medical evidence demonstrating the likelihood that petitioner’s shoulder


                                                12
injury, more likely than not, is permanent or will extend into the future, the undersigned
cannot make an award for petitioner’s future pain and suffering.

                D. Award for Past Unreimbursed Expenses

        Mr. Pruett has provided documentation of his past unreimbursable expenses.
Pet. Ex. 22-23. On November 2, 2018, the parties filed a joint status report stating
confirming respondent’s proffer of $944.63 for petitioner’s past unreimbursed expenses
in this case. (ECF No. 63).

                E. Amount of the Award

        In determining an award in this case, the undersigned does not rely on a single
decision or case. Rather, the undersigned has reviewed the particular facts and
circumstances in this case, giving due consideration to the circumstances and damages
in other cases cited by the parties and other relevant cases, as well as her knowledge
and experience adjudicating similar cases. For all the reasons discussed above, the
undersigned finds that $75,000.00 represents a fair and appropriate amount of
compensation for petitioner’s past pain and suffering. In addition, the undersigned finds
(with the agreement of the parties) that petitioner is entitled to compensation for
$944.63 for his past unreimbursed expenses. The undersigned does not find sufficient
evidence to support any award of future pain and suffering.

     V.     Conclusion

        In light of all of the above, the undersigned awards petitioner a lump sum
payment of $75,944.63, (representing $75,000.00 for petitioner’s past pain and
suffering and $944.63 for unreimbursable medical expenses) in the form of a check
payable to petitioner, Lorin T. Pruett. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-15(a). Id.

       The clerk of the court is directed to enter judgment in accordance with this
decision.18

IT IS SO ORDERED.
                                         s/Nora Beth Dorsey
                                         Nora Beth Dorsey
                                         Chief Special Master




18
  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.

                                                     13
