         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0014V
                                      Filed: July 10, 2019
                                          PUBLISHED


    ANTHONY CAPASSO,
                                                             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.


Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.

                               DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
        On January 4, 2017, Anthony Capasso (“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” or “Program”), alleging that as a result of
receiving an influenza (“flu”) vaccination on November 14, 2015, he suffered a shoulder
injury related to vaccine administration (“SIRVA”) to his left shoulder. Petition at 1. The
case was assigned to the Special Processing Unit (“SPU”) of the Office of Special


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).

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).


                                                      1
Masters. For the reasons discussed below, the undersigned now finds that petitioner is
entitled to compensation in the amount of $75,190.00.
      I.      Relevant Procedural History3
       Mr. Capasso filed his petition for compensation on January 4, 2017, with four
medical record exhibits, alleging that the injuries he received to his left shoulder were
caused by a flu vaccine he received on November 14, 2015. Petition at 1. (ECF No. 1).
Additional medical records and a Statement of Completion were filed in March 2017.
(ECF Nos. 8-11).
       On June 12, 2017, respondent filed a status report stating that the records had
been reviewed and that respondent found the case appropriate for settlement.
Respondent invited petitioner to send a settlement demand. (ECF No. 15). Over the
next three months, the parties attempted to resolve this case through informal
settlement discussions. On September 8, 2017, petitioner filed a status report stating
that the parties were at an impasse and requested a status conference. (ECF No. 20).
To evaluate the issues in the case, the undersigned ordered respondent to file his report
pursuant to Vaccine Rule 4(c). (ECF No. 21).
       On November 14, 2017, respondent filed his Rule 4(c) report stating that this
case was not appropriate for compensation under the terms of the Vaccine Act for
several reasons, including an inadequate onset period for a SIRVA injury, that petitioner
had not satisfied the severity requirement of six months, and that there may have been
an alternate cause for petitioner’s shoulder injury. (ECF No. 23). Respondent also
argued that because petitioner had not provided evidence that satisfied his burden of
proof under Althen,4 nor had petitioner provided an expert report or medical theory to
support his claim, petitioner’s claim for compensation should be denied. After a status
conference was held in the case, the parties agreed to submit briefs on entitlement and
request a ruling. (ECF No. 28).
       On August 8, 2018, the undersigned issued findings of fact and a ruling on
entitlement in petitioner’s favor, resolving the issues of onset, the six-month severity
requirement, and determining that petitioner was entitled to compensation. (ECF No.
33)
       On October 9, 2018, petitioner filed a status report stating that the parties
“agreed as to the amount that Petitioner is entitled to for reimbursement of out of pocket
medical expenses, but disagree on the amount for pain and suffering and lost wages”
and proposed a schedule for filing damages briefs. (ECF No. 37). On April 17, 2018, a
scheduling order was issued setting the proposed schedule for the parties to file briefs
on damages. (ECF No. 38). The parties have filed their respective briefs and this case
is now ripe for a determination regarding an award of damages.



3
  The undersigned adopts the comprehensive procedural history set forth in the Findings of Fact and
Ruling on Entitlement issued on August 3, 2018. See Capasso v. Sec’y of Health & Human Servs., No.
17-0014V, 2018 WL 5077781, at *1-2 (Fed. Cl. Spec. Mstr. Aug. 3, 2018).
4
    Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)

                                                     2
   II.    Relevant Factual History

          a. Medical Records
       In November 2015, Mr. Capasso (age 41) was working at Toray Plastics where
he had been employed for more than 17 years. Petitioner’s Exhibit (“Pet. Ex.”) 3 at 4;
Pet. Ex. 8 at 1-2, ¶5. Mr. Capasso’s medical history does not mention any history of
shoulder injuries and does not otherwise appear to be contributory to his claim in this
case.
       On November 14, 2015, Mr. Capasso received a flu vaccination in his left arm at
a Rite Aid Pharmacy located in Portsmouth, Rhode Island. Pet. Ex. 1 at 1; Pet. Ex. 2 at
16. In his affidavit, Mr. Capasso stated that he felt some pain in his left shoulder the
day after he was vaccinated which increased over the next couple of days. Pet. Ex. 10
at 1. He stated that approximately two to three days after vaccination, he woke up and
noticed that the pain in his left shoulder from the prior night had become much more
severe. Id. Mr. Capasso was unable to lift his left arm to put on his shirt and had to ask
his wife for assistance. He was unable to sleep that night due to the pain. Id.
        On December 3, 2015, 19 days later, Mr. Capasso presented to his primary care
physician, Dr. Liza Famador, for complaints of left-sided shoulder pain after receiving a
flu vaccination two to three weeks prior. Pet. Ex. 2 at 17. Mr. Capasso reported that he
received the flu vaccine at Rite Aid on November 14, 2015, and later that night, had
“swelling on the area until the next day.” Id. He also noted pain while moving his left
arm, putting on his seatbelt, and with flexion. Id. Upon examination, Mr. Capasso
exhibited tenderness of the left shoulder. Id. At this time, Dr. Famador noted that
petitioner had normal strength and normal range of motion of his left shoulder. Id. A
diagnosis of contusion of the left deltoid region was made, and Mr. Capasso was
advised to apply ice compressions to the affected area for 20 minutes, three times daily.
Id. at 18. Dr. Famador also advised that Mr. Capasso perform range of motion (“ROM”)
exercises and take ibuprofen for pain. Id.
       Mr. Capasso presented for his annual exam on January 15, 2016. Pet. Ex. 2 at
19. At this visit, he complained that his left shoulder continued to bother him. Id. Dr.
Famador again noted that Mr. Capasso’s pain started after he received a flu shot in
November. Id. The musculoskeletal portion of the physical exam documented
tenderness of the left shoulder although Mr. Capasso still had normal range motion and
normal strength of his left shoulder. Id. at 20. Dr. Famador also noted that there was
no cervical adenopathy. Id. at 21. The assessment stated that while Mr. Capasso’s left
shoulder pain had improved, some discomfort was still present. Id. He was advised to
continue using warm compresses and to perform a series of shoulder exercises and
massages to treat his symptoms. Id. Dr. Famador also advised that petitioner may
want to consider physical therapy if his shoulder pain did not improve. Id.
       On February 22, 2016, Mr. Capasso underwent an initial evaluation at University
Orthopedics with physical therapist, Diane Jones. Pet. Ex. 4 at 2. Mr. Capasso
reported that his shoulder became sore after receiving a flu shot in November 2015, and
he reported experiencing severe pain at the time of examination (a range from 6 - 9 out
of 10). Id. Mr. Capasso was noted to have certain impairments with the range of

                                            3
motion of his left shoulder. Specifically, he was noted to have moderate impairment
with the passive range of motion (“PROM”) of his glenohumeral joint with external
rotation. Id. He also had mild impairment with his active range of motion (“AROM”) with
shoulder flexion, shoulder scaption, and shoulder external rotation. Mr. Capasso was
noted to have moderate levels of impairment of the AROM with shoulder abduction,
shoulder horizontal adduction and shoulder internal rotation. Id. at 3. He had moderate
weakness and decreased strength at a 3/5 level. Id. The evaluation notes indicate that
Mr. Capasso was able to engage in moderate work duty but only at a 50% level. He
had mild difficulty reaching overhead and lifting and pulling light objects. Id. at 3. Mr.
Capasso also reported moderate difficulty sleeping at night due to the pain. Id. The
assessment was shoulder and upper arm mobility deficits associated with a sprain and
strain. Id. at 4. The plan of care was for physical therapy for one visit per week for six
weeks. Id.
       Mr. Capasso attended his first physical therapy session on March 1, 2016. Pet.
Ex. 4 at 6. During this session, a positive finding on a special test used to evaluate
shoulder injuries, the Hawkins-Kennedy test, was noted. Id. The abnormal range of
motion of his left shoulder and pain levels were all noted to be the same as the initial
consultation. Id. at 6- 8.
       Mr. Capasso continued to attend physical therapy sessions on March 7 and
March 24. At the March 7, 2016 session, his range of motion and pain levels continued
to be substantially the same as the initial evaluation, although there was a slight
improvement noted in his PROM. Pet. Ex. 4 at 9-11. By the March 24, 2017 session, it
is noted that Mr. Capasso
       [H]as made good progress since [start of care] with return of full functional
       painfree AROM. P[atient]’s strength has returned to 5 out of 5 without
       pain. Continued slight scapular winging but has improved since beginning
       exercises with PT. P[atien]t has returned to normal daily activities without
       pain and has met all goals initially set. P[atien]t is indep[endent] with HEP
       [home exercise program] and will continue on maintenance program.
Pet. Ex. 4 at 15. However, the undersigned notes that there were still some mild
impairments documented with Mr. Capasso’s AROM with shoulder flexion and shoulder
abduction during this session. Id. at 14. Mr. Capasso was discharged and instructed to
return to his referring physician if his symptoms returned. Id. at 15. In his affidavit, Mr.
Capasso stated that his physical therapy sessions went well and he was able to
continue working pain free. However, the relief was short lived and he began to
experience similar left shoulder pain a month later. Pet. Ex. 10 at 2.
       Mr. Capasso returned to Dr. Famador on June 3, 2016, with complaints of
continued left shoulder pain. Pet. Ex. 2 at 23. Although Mr. Capasso underwent
physical therapy in March 2016, he reported that his symptoms returned over the past
1-2 months. Mr. Capasso reported that he had shooting pain in his left shoulder with
certain activities such as rowing or when he was spreading concrete. He reported that
he was still performing his shoulder exercises at home. Id. His physical examination
was positive for arthralgia and tenderness of the left shoulder, but Dr. Famador
documented normal range of motion and normal strength during the examination. Id. at
                                             4
24. In the assessment, Dr. Famador recommended that Mr. Capasso return to his
orthopedist for a repeat evaluation. Id. at 16. Dr. Famador stated that an MRI or steroid
injection may be necessary. Id. Mr. Capasso was encouraged to continue performing
his home exercise program and to resume using ice or heat over the shoulder area. Id.
       On July 6, 2016, Mr. Capasso underwent an MRI of his left shoulder. Pet. Ex. 3
at 2. The MRI was abnormal and showed a partial-thickness tearing and/or
tendinopathy of the infraspinatus tendon. There was no evidence of a full-thickness
rotator cuff tear. Id.
        On August 11, 2016, Mr. Capasso was seen in follow-up by his primary care
physician, Dr. Maher, for left shoulder pain and to review the results of the MRI. Pet.
Ex. 3 at 5. Mr. Capasso’s range of motion and strength levels were not documented in
these notes. Id. The plan was for petitioner to continue with physical therapy, ibuprofen
and to continue to be seen in follow up. Id. No additional medical records have been
filed following this August 11, 2016 visit.
          b. Affidavit testimony
        In his affidavit, Mr. Capasso stated that prior to his November 14, 2015 flu
vaccination, he was very active, exercised regularly and ate well. Pet. Ex. 10 at 2. He
said that he never had any sort of shoulder problems in the past, even after previous
vaccinations. Id. Mr. Capasso explained how his shoulder injury affected his job. He
stated during the time he was experiencing his shoulder symptoms, he avoided working
non-mandatory overtime because the pain was so severe. Id. at 1-2. However, he did
work the mandatory overtime so that he would not lose income or his job. He described
how he asked his co-workers for assistance with strenuous tasks that required the use
of his left arm and shoulder. Id. at 2. Mr. Capasso explained that while his pain
affected his ability to perform his job, he continued to work and did not take any time off
due to his injury because he took pride in his perfect attendance record. Pet. Ex. 8 at 1-
2. He stated that he has not called out of work sick in the last seven years. Id. at 2. At
the time of his vaccination, Mr. Capasso was only two months away from receiving an
award for the fifth year in a row and he decided to work his way through the pain. Pet.
Ex. 9 at 1. Mr. Capasso explained that he considers himself a model employee and has
always excelled in his performance reviews. Id.
       His coworker, Mike Chianese, also confirmed that Mr. Capasso had asked for
help with the “heavy lifting” due to his shoulder injury. Pet. Ex. 9 at 1. Mr. Chianese
stated that Mr. Capasso “struggled with just normal duties” and that seeing him struggle
at work was difficult, so he helped as much as he could. Id.
       Mr. Capasso’s wife stated that initially, both she and her husband were going to
receive flu shots on November 14, 2015, but she declined receiving a vaccine that day
because she was unfamiliar with the pharmacist administering the vaccines. Pet. Ex.
11. After observing her husband receive his flu vaccine, Ms. Capasso stated that she
“had a bad feeling.” Id. She described how she observed her husband’s shoulder
become swollen and sore to the touch at the injection site. Id. She also explained that
his pain became so severe that she had to help her husband dress into his clothes in
the morning. Id. By February 2016, Ms. Capasso stated that her husband’s condition

                                             5
had deteriorated. Id. She now had to do all the chores around the home that required
any lifting, including shoveling snow. Id. at 1-2. Ms. Capasso stated that her husband
was very diligent about his physical therapy and while his pain and strength improved
after therapy, within a month of leaving therapy, his pain returned. Id. at 2. Ms.
Capasso described that when their daughter moved back home from college from her
freshman year in the summer of 2016, her husband was unable to help with moving her
furniture because of the risk of further injuring his shoulder. Id. He was unable to go
out on their row boat that summer and he was unable to golf, one of his favorite
activities. Id. Ms. Capasso stated that even today, two and half years later, her
husband still performs exercises that are part of his home exercise program for his
shoulder. Id.
    III.   Party Contentions

       Petitioner seeks an award in the amount of $90,190.00, consisting of $90,000.00
as compensation for his pain and suffering, and $190.00 for past unreimbursable
medical expenses. Petitioner’s Brief in Support of Damages (“Pet. Brief”) at 1 (ECF No.
41). Petitioner has confirmed that he is not seeking compensation for lost wages or
future medical expenses. In his brief and affidavit, petitioner stresses the degree to
which his injury impacted his life beyond what is, or would be, reflected in his medical
records. Id. at 1 (ECF No. 41); Pet. Ex. 10 at 1.
        Respondent argues that petitioner should be awarded $45,000.00 as
compensation for his actual pain and suffering, in addition to the $190.00 in
unreimbursable expenses to which the parties have agreed. Respondent’s Brief on
Damages (“Res. Brief”) at 1 (ECF No. 44). He maintains that “[p]etitioner sustained a
relatively minor injury and received relatively little treatment.” Id. at 6. He argues that
while petitioner reported his pain to his primary care physician within three weeks of his
vaccination, his subsequent physical examinations did not demonstrate that he was
experiencing significant deficits as a result of his SIRVA. Id. Respondent also argues
that although petitioner’s pain returned and he was ultimately diagnosed with “partial-
thickness tearing and/or tendinopathy of the infraspinatus,” he fully recovered by August
2016, and thus, fully recovered within a year. Id.
       Comparing petitioner’s facts to those in Desrosier, Dirksen, Knauss, and Marino,5
respondent asserts “all four of these cases are factually distinguishable.” Id. Instead,
respondent notes that the amount offered by respondent is supported with proffers
agreed to by petitioner’s counsel in other cases with more severe clinical courses. See,
e.g., Zebofsky v. Sec’y of Health & Human Servs., No. 15-1084V, 2017 WL 8682428, at
*1 (Fed. Cl. Spec. Mstr. Dec. 1, 2017), ($55,000.00 awarded to a petitioner who had two

5
 Desrosiers v. Sec’y of 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 of 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 $6,784.56 in past unreimbursable
medical expenses); Knauss v. Sec’y of 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 of 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
steroids injections, one round of PT spanning two months, and documented shoulder
pain lasting approximately seven months per the submitted medical records).6 Res.
Brief at 8-9.

    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). 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.” § 15(a)(1)(B). 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
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. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain
and suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2)
severity of the injury; and 3) duration of the suffering. 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)). In evaluating these factors, the undersigned has reviewed
the entire record, including medical records, affidavits submitted by petitioner and
others, and the parties’ briefs.
        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., 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


6
 The facts described above are not found in the decision awarding compensation (which is based on a
proffer) but are set forth in the ruling on entitlement. See Zebofsky v. Sec’y of Health & Human Servs.,
No. 15-1084V, 2017 WL 7051381, at *4-5 (Fed. Cl. Spec. Mstr. Sept. 28, 2017).


                                                    7
rely on her own experience adjudicating similar claims.7 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.

                 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 resolved8 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
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.

7
 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.
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.
10
  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.
11
   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.


                                                      8
      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.

               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.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
$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.


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. 15-1241V, 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. Young v. Sec’y Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl.
Spec. Mstr. Jan. 4, 2019).

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).



                                                      9
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 interfered with 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
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00.15 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.16 No MRI study was performed in the Cooper case.


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. 16-854V, 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).
16
   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 glen humeral 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

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        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
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.

     V.     Appropriate Compensation in this SIRVA 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



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).

                                                     11
awareness of his suffering and proceeds to analyze the severity and duration of the
injury.

          a. Severity of Pain and Suffering

                  i. Affidavit Testimony

       With respect to the severity of petitioner’s injury, Mr. Capasso’s affidavit provides
a description of the pain throughout the duration of his injury. Pet. Ex. 10. In his
affidavit, Mr. Capasso stated that prior to his November 14, 2015 flu vaccination, he was
very active, exercised regularly and ate well. Id. at 2. He never had any sort of
shoulder problems in the past, even after previous vaccinations. Id.
       In the initial days following the November 14, 2015 vaccination, Mr. Capasso
described the sharp pain he felt in his left shoulder, especially when he tried to lift his
arm, such as when he was dressing. Pet. Ex. 10 at 1. He described the pain as so
severe that he needed his wife to help him get dressed for work and he hoped for a light
day of physical work. Id. In the weeks following the injury, Mr. Capasso stated that he
would avoid overtime if possible by “giving it away” because the pain in his shoulder
was too severe. Id. When he did work overtime, he stated that he asked his co-
workers for assistance with certain strenuous tasks that required the use of his
shoulder. Id. at 2.
        His coworker, Mike Chianese, also filed an affidavit confirming that Mr. Capasso
had asked him to help with the “heavy lifting” due to his shoulder injury. Pet. Ex. 9 at 1.
Mr. Chianese stated that Mr. Capasso “struggled with just normal duties” and that
seeing him struggle at work was difficult, so he helped as much as he could. Id. Mr.
Capasso explained that while his pain affected his ability to perform his job, he
continued to work and did not take any time off due to his injury because he took pride
in his perfect attendance record. Pet. Ex. 8 at 1-2. He stated that he has not called out
of work sick in seven years. Id. at 2. At the time of his vaccination, he was only two
months away from receiving an award for the fifth year in a row and he decided to work
his way through the pain. Pet. Ex. 9 at 1. Mr. Capasso explained that he considers
himself a model employee and has always excelled in his performance reviews. Id.
        Mr. Capasso also filed an affidavit from his wife, Andrea Capasso. Pet. Ex. 11.
She described how she observed her husband’s shoulder become swollen and sore to
the touch at the injection site. Id. at 1. She also explained that his pain became so
severe that she had to help her husband dress into his clothes in the morning. Id. By
February 2016, Ms. Capasso stated that her husband’s condition had deteriorated. She
now had to do all the chores around the home that required any lifting, including
shoveling snow. Id. at 1-2. Ms. Capasso stated that her husband was very diligent
about his physical therapy and while his pain and strength improved after therapy,
within a month of leaving therapy, his pain returned. Id. at 2. Ms. Capasso described
that when their daughter moved back home from college from her freshman year in the
summer of 2016, her husband was unable to help with moving the furniture because of
the risk of further injuring his shoulder. Id. He was unable to go out on their row boat
that summer and he was unable to golf, one of his favorite activities. Id. Ms. Capasso

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states that even today, two and half years later, her husband still performs shoulder
exercises that are part of his home exercise program for his shoulder. Id.

                 ii. Medical Record Evidence

        The undersigned acknowledges and finds that Mr. Capasso suffered severe
shoulder pain from the time he received the flu vaccination at issue on November 14,
2015, to January 15, 2016, where it was documented that Mr. Capasso’s left shoulder
pain had improved and only continued to bother him “a little” – an approximately two-
month period. He first sought treatment approximately 19 days after vaccination. Pet.
Ex. 2 at 17. At that time, he demonstrated normal strength and normal range of motion
of his left shoulder, although he did exhibit tenderness of the left shoulder (although no
pain level rating was provided). Id. He was diagnosed with a contusion of the left
deltoid region and advised to apply ice, perform range of motion exercise and take
ibuprofen for pain.
        Mr. Capasso sought treatment for his shoulder two months later, on January 15,
2016, when during his annual physical exam when he reported that his shoulder
continued to cause some discomfort and bothered him “a little”, but the pain had
improved. Pet. Ex. 2 at 19. At this appointment, he continued to exhibit tenderness to
his left shoulder although he still had normal range of motion and normal strength of his
left shoulder. Id. at 20.
       Over the next month, Mr. Capasso’s symptoms substantially worsened and he
reported severe pain (a range of 6-9 out of 10). Pet. Ex. 4 at 2. At his initial physical
therapy evaluation appointment on February 22, 2016, he began exhibiting impairments
with the range of motion of his left shoulder. Id. The evaluation notes indicated that Mr.
Capasso was able to engage in moderate work duty but only at a 50% level. Id. at 3.
The plan of care was for physical therapy for one visit per week for six weeks. Id.
      Mr. Capasso attended three physical therapy appointments on March 1, 7 and
March 24, 2016. By the March 24, 2017 session, it is noted that Mr. Capasso
       [Had] made good progress since [start of care] with return of full functional
       painfree AROM. P[atient’]s strength has returned to 5 out of 5 without pain.
       Continued slight scapular winging but has improved since beginning
       exercises with PT. P[atien]t has returned to normal daily activities without
       pain and has met all goals initial set. P[atien]t is indep[endent] with HEP
       [home exercise program] and will continue on maintenance program.
Pet. Ex. 4 at 15. However, the undersigned notes that there were still some mild
impairments documented with Mr. Capasso’s active range of motion with shoulder
flexion and shoulder abduction during this session. Id. at 14. Mr. Capasso was
discharged and instructed to return to his referring physician if his symptoms returned.
Id. at 15. In his affidavit, Mr. Capasso stated that his physical therapy sessions went
well and he could continue working pain free. However, the relief was short lived and
he began to experience similar pain a month later. Pet. Ex. 10 at 2.


                                            13
        Mr. Capasso returned to Dr. Famador on June 3, 2016, with complaints of
continued left shoulder pain. Pet. Ex. 2 at 23. Although he underwent physical therapy
in March 2016, his symptoms returned over the past 1-2 months. Mr. Capasso reported
that he had shooting pain from his left shoulder with certain activities such as rowing or
when he was spreading concrete. A July 6, 2016 MRI of his left shoulder showed a
partial-thickness tearing and/or tendinopathy of the infraspinatus. Pet. Ex. 3 at 2. By
his August 11, 2016 appointment with his primary care physician, the plan was for Mr.
Capasso to continue with physical therapy, ibuprofen and to be seen in follow up. Pet.
Ex. 3 at 5.
          b. Duration of 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 approximately eight months of documented pain
and suffering. Mr. Capasso’s severe level of shoulder pain improved after two months;
however, this improvement was short-lived. His pain returned to a severe level and
maintained this severe level for the next approximately four months. Mr. Capasso’s
MRI on July 6, 2016, demonstrated a partial-thickness tearing and/or tendinopathy of
the infraspinatus. In his affidavit, Mr. Capasso stated that by August 2016, his “shoulder
felt fully recovered, where it was tested through many mandatory overtime hours and
getting through these pain free.” Pet. Ex. 10. at 2. He stated that he returned to
planning some home projects and resumed playing golf. Id.
        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. However, unlike this case, the Kim and Attig
petitioners reported only one to three months of significant pain and all four cases
included MRI findings consistent with a milder type injury. Mr. Capasso experienced
four to six months of severe pain and his MRI demonstrated a more severe type of
injury. Although Mr. Capasso only attended four physical therapy appointments, he and
his wife averred that he was diligent with his home exercise program. His diligence with
his home exercise program may have contributed to improvement of his symptoms
similar to what he would have accomplished in formal physical therapy. Looking at the
record as a whole, these distinctions provide preponderant evidence that Mr. Capasso
experienced a more severe injury than the above-mentioned petitioners.

        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 in this case.




                                             14
     B. Award for Past Unreimbursed Expenses

        Mr. Capasso requests $190.00 in past unreimbursable expenses. Pet. Brief at 1;
Pet. Ex. 6. In his brief, respondent agrees to this amount. Res. Brief at 4-5, 10. Thus,
petitioner is awarded $190.00 for his past unreimbursable expenses.

     C. 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 actual pain and suffering. In addition, the undersigned
finds that petitioner is entitled to compensation for $190.00 for his past unreimbursed
medical expenses.

     VI.    Conclusion

        In light of all of the above, the undersigned awards petitioner a lump sum
payment of $75,190.00, (representing $75,000.00 for petitioner’s actual pain and
suffering and $190.00 for unreimbursable medical expenses) in the form of a check
payable to petitioner, Anthony Capasso. 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.

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