         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 17-12V
                                      Filed: March 20, 2019
                                           PUBLISHED


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

                        Respondent.


Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
respondent.

            RULING AWARDING DAMAGES – SPECIAL PROCESSING UNIT1
Dorsey, Chief Special Master:
       On January 4, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered a left shoulder injury caused by an
influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters and the undersigned issued a
Ruling on Entitlement finding petitioner entitled to compensation for a Shoulder Injury
Related to Vaccine Administration (“SIRVA”). For the reasons discussed below, the
undersigned finds that petitioner should receive $37,921.48 for lost wages. Petitioner

1
 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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 ruling contains a reasoned explanation for the action in this case,
undersigned is required to post it on the United States Court of Federal Claims' website in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

                                                      1
should also receive an award for actual pain and suffering in the amount of $185,000.00
and an award for future pain and suffering in the amount of $1,500.00 per year, for
petitioner’s remaining life expectancy of 30 years. 3
    I.      Procedural History
        On January 4, 2017, along with the petition, petitioner filed medical records and
an affidavit marked as exhibits 1-9. ECF No. 1. Petitioner filed a statement of
completion on January 18, 2017. ECF No. 7. Subsequently, during the initial status
conference held February 8, 2017, petitioner indicated that there was a claim for lost
wages and an associated workers’ compensation claim. ECF No. 8. On March 2,
2017, petitioner filed an affidavit, and on March 10, 2017, a status report. ECF Nos. 9,
10. The status report stated that a workers’ compensation carrier was covering
petitioner’s medical expenses and paid wage loss benefits, but that petitioner would
assert a small wage loss claim to recoup the balance between the benefits paid and his
actual wage loss. ECF No. 10.
      On May 15, 2017, respondent filed a status report stating that additional records
were requested. ECF No. 11. Petitioner filed the requested records between May 31,
2017 and June 5, 2017, along with an amended statement of completion on June 5,
2017. ECF Nos. 21-23.
        On December 7, 2017, respondent filed his Rule 4(c) report in which he
conceded that petitioner was entitled to compensation in this case. ECF No. 36. On
December 8, 2017, the undersigned issued a ruling on entitlement finding petitioner
entitled to compensation for his SIRVA. ECF No. 37. The parties then began the
process of negotiating the appropriate amount of damages.
       On March 29, 2018, petitioner filed a status report indicating that the parties had
reached an impasse during settlement discussions. ECF No. 44. On April 10, 2018,
the parties discussed the impasse during a status conference. ECF No. 45. Petitioner
stated that the damages were comprised of pain and suffering and lost wages. Both
parties stated that they were amenable to briefing the issue of damages. Id. On April
30, 2018, petitioner filed a joint status report stating that there was no dispute on the
issue of lost wages, and that the parties were willing to submit pain and suffering briefs.
ECF No. 46.
        On April 25, 2018, following a status conference on May 22, 2018, a scheduling
order was issued. ECF No. 51. The scheduling order noted that the only issue in
dispute was damages relating to past and future pain and suffering. Id. At that time,
petitioner’s counsel stated she would attempt to obtain updated medical records, and
submit a supplemental affidavit regarding petitioner’s condition before receiving the


3
 Based on petitioner’s birth date of August 22, 1975, petitioner is expected to live for approximately 30
additional years. See Nat’l Ctr. for Health Statistics, United States Life Tables, 2015 (2018) at Table A.


                                                     2
vaccination, during his treatment, and his current condition. Petitioner filed updated
records and affidavit evidence on June 15, 2018. ECF No. 52.
        On August 31, 2018, the parties filed simultaneous briefs discussing the
damages issues. ECF Nos. 54, 55. This case is now ripe for a determination regarding
petitioner’s pain and suffering award.
   II.    Relevant Medical History
        Petitioner was born on August 22, 1975, and was 40 years old when he received
a flu vaccination on October 20, 2015 in his left arm. Ex. 1 at 1. The available medical
evidence does not reflect a history of left shoulder impairment.
       On October 22, 2015, petitioner presented to the emergency department at
Claxton-Hepburn Medical Center complaining of left arm and shoulder pain for the
previous two days “after getting a flu shot.” Ex. 2 at 11. At that time, petitioner ranked
the pain as 9 out of 10. Id. However, later in that same visit the pain was reported as a
5 out of 10. Id. Petitioner’s range of motion was limited in his left shoulder. Id.
Petitioner reported that “it really hurt when she put it in”, presumably referring to pain at
the time of vaccination.
        Petitioner was seen for a follow-up for shoulder pain on November 4, 2015. At
that time, petitioner rated his pain as 10 out of 10. Ex. 2 at 155. An examination
indicated that petitioner did not have a decreased range of motion, but did exhibit
weakness and pain in his left shoulder. Id. at 157-58. Petitioner was prescribed
Percocet and a Medrol Dosepak. Ex. 2 at 154.
        Petitioner was seen by Dr. Terry Knowles on November 12, 2015, for left
shoulder pain. Petitioner described his injury as beginning immediately upon receipt of
his flu vaccination, and that “2 days later could not move arm, much pain with
movement, lower hand and elbow not affected but some paresthesia from shoulder
down to elbow….” Ex. 3 at 34. Petitioner again ranked his pain as 10 out of 10. Id. at
35. Dr. Knowles diagnosed petitioner with left shoulder pain, and stated there “could be
nerve damage or bursitis or tendinopathy”. Ex. 3 at 34-35. Petitioner was referred to a
neurologist and prescribed Gabapentin. Id.
       The next day, petitioner presented to the emergency department with extreme
shoulder pain and limited range of motion. Ex. 2 at 163-171. Three x-rays were taken,
which appeared normal. Ex. 2 at 14. Petitioner was diagnosed with left shoulder pain
and limited range of motion. Petitioner was prescribed Percocet and prednisone for the
pain. Ex. 2 at 166.
      Petitioner was next seen for left shoulder pain on November 20, 2015. Ex. 4 at
12. At that time, petitioner rated his pain as 10 out of 10. An evaluation of petitioner’s
shoulder was limited because of “guarding, due to pain and not able to perform
evaluation.” Petitioner was referred for an MRI and a steroid injection was


                                              3
administered. Id. at 13. Formal physical therapy for pain relief and range of motion was
also recommended. Id.
        Petitioner began physical therapy on November 20, 2015. Ex. 5 at 10. At that
time, petitioner described his pain as 0, but at worst a 10. Id. at 10. Upon inspection,
petitioner’s pain was recorded as 9/10 with movement of the left shoulder. Id. at 11.
Petitioner also exhibited reduced range of motion and strength. Id. at 11-14.
      Between December 4, 2015 and December 29, 2015, petitioner attended ten
physical therapy sessions. Petitioner’s pain gradually improved, and he stated that he
was pleased with his progress regarding pain, mobility, and strength. Ex. 5 at 23-29. 4
        On December 30, 2015, petitioner presented to Dr. Knowles for a follow-up
examination for left shoulder pain. Dr. Knowles reviewed his MRI, 5 and indicated that it
showed inflammation “suggesting that needle hit bone and cause[d] inflammatory
reaction that could be considered frozen shoulder.” Ex. 3 at 28. Dr. Knowles diagnosed
petitioner with left shoulder pain and frozen shoulder. Id. at 28-29. Petitioner was
treated with oxycodone. Id. at 29. The clinical notes also stated that petitioner had 50%
disability, could not shovel, drive, or type with his left hand. Id.
       Petitioner attended five additional physical therapy sessions between January 6
and January 14, 2016. Ex. 5 at 67-87. On January 14, 2016, petitioner stated he “has
made progress with increasing range of motion in all direction and strength continues to
slowly improve” but that his “discomfort level continues to vary from day to day.” Id. at
87.
       Petitioner next attended physical therapy on February 10, 2016, attributing the
break in treatment to having to wait for authorization. Ex. 5 at 89. Petitioner also stated
that “he did not keep up with his exercises while he was waiting for auth and his
shoulder is back to the way it was at the beginning.” Id. Petitioner reported pain of a 9,
and at worst a 10. Id.
        On February 25, 2016, petitioner was seen by Dr. Knowles for another follow-up
for his shoulder pain. Ex. 3 at 26-27. Petitioner reported no improvement in his
shoulder, and that it was “perhaps worse” with limited range of motion and “lots of pain.”
Id. at 26. Dr. Knowles noted that the injury was “greatly interfering with [petitioner’s]
productivity and quality of life.” Id. Petitioner was diagnosed with adhesive capsulitis,
and Dr. Knowles noted “worst case of frozen shoulder caused by flu injection 4 mo ago
given too high on arm, nearly useless shoulder.” Id. at 27.


4 Petitioner also stated that his left shoulder was still painful, and his range of motion was not increased
since beginning physical therapy. Ex. 5 at 58.

5Petitioner underwent an MRI on December 3, 2015, that was suggestive of a sprain but not a distinct,
definitive tear. Ex. 2 at 185.



                                                      4
        Petitioner presented to Richard Finch, PA, with complaints of ongoing left
shoulder pain on March 17, 2016. Ex. 3 at 22-24. Upon examination, petitioner
exhibited limited range of motion, reduced strength, and “[a]ll movements with pain.” Id.
at 24. Additional physical therapy was recommended, and a subacromial steroid
injection was performed. Id. at 24-25.
        On April 26, 2016, petitioner reported to PA Finch that “[o]ver the past couple
weeks the pain has returned as well as a stiffness and decreased range of motion of the
left shoulder.” Ex. 3 at 20. Petitioner was directed to continue physical therapy and
home exercises, and another MRI was ordered. Id. at 21.
       Petitioner again saw Dr. Knowles on April 28, 2016. Ex. 3 at 18-19. Petitioner
reported that he was doing physical therapy and massage, and was being referred to a
surgeon. Id. at 18. Petitioner also stated his range of motion was inconsistent, and he
was taking oxycodone at night. Id. at 18.
       On May 19, 2016, petitioner was seen for a follow-up for his left shoulder pain,
and to discuss his MRI results. The MRI showed a fairly large partial thickness
supraspinatus rotator cuff tear, rotator cuff tendinopathy, and downward sloping bone
spur at the acromioclavicular joint. Ex. 3 at 15. Petitioner was assessed with an
incomplete tear of his left rotator cuff, and impingement syndrome.
     On June 3, 2016, petitioner underwent arthroscopic left shoulder surgery,
manipulation and anterior acromioplasty, and a bursectomy performed by Dr. John
Savage. Ex. 3 at 6-9.
         From June 29, 2016 through October 12, 2016, petitioner attended 50 physical
therapy sessions. Ex. 6 at 105, Ex. 7 at 1-3, 101-102. At his last physical therapy
session, petitioner stated he planned to continue on his own and did not want any
additional therapy at that time. Ex. 7 at 101. The records also indicate that petitioner
was able to swim and perform more activities as his range of motion continued to
improve. Id. Petitioner reported that his pain scale was 4 at worst, 0 at best, and at that
time a 1. Id. Regarding petitioner’s goals, they were nearly all met, but also indicated
he still suffered from residual pain and reduced range of motion. Petitioner’s long-term
goals included performing household activities with pain (90% met), sleeping 4 out of 7
nights without waking due to pain (goal met) and lifting a 10 lb. object onto an overhead
shelf with pain (75% met). Id.
        On August 30, 2016, petitioner saw Dr. Knowles for a workers’ compensation
recheck. Petitioner reported his range of motion was improved, and decreased pain in
his left shoulder. At that time, petitioner was no longer exhibiting a disability at work, but
did have disability at home with daily tasks. Ex. 13 at 24. Dr. Knowles reduced
petitioner’s disability to “0%” and diagnosed petitioner with adhesive capsulitis of his left
shoulder. Ex. 13 at 25.



                                              5
         Petitioner saw Dr. Knowles again on January 12, 2017 for a workers’
compensation follow-up. Ex. 13 at 18. 6 Petitioner reported that he was finished with
physical therapy, that he continued to do routine exercises, and his “sleep is better.” Id.
At another follow-up with Dr. Knowles on April 4, 2017, petitioner reported very little
change since his last visit, limited range of motion, pain in his left shoulder, that he was
still doing exercises, and was “fairly functional but limited.” Id. Petitioner also stated
that he “love[s] to golf and this prevents him from a full swing.” Id. At the next follow-up
appointment on August 8, 2017, petitioner reported he was “getting slowly better”. Ex.
22 at 9. However, Dr. Knowles noted that petitioner had “actually not made much
progress recently with abduction to about 90 Deg, and flexion to about 110. [H]igher
than this he has pain, no pain when arm is held at low angles.” Id.
       The last medical record was from March 16, 2018, when petitioner saw Dr.
Knowles for a follow-up evaluation of his left shoulder. Ex. 22 at 5. Dr. Knowles noted
that petitioner had a “systemic inflammatory response to vaccine administration and
subsequent injuries in L[eft] shoulder.” Id. Following surgery, petitioner was “now very
stable and has lost about 50% of his L[eft] arm function” but “no pain and good function
when using arm below shoulder level.” Id. Further, Dr. Knowles stated that petitioner
“has come to live with it and has reached a plateau” but that he also “functions very
well, working with no problem.” At that time, Dr. Knowles noted it was unlikely that he
would improve further. Id.
    III.   Affidavits Filed by Petitioner
        On March 2, 2017, petitioner filed an affidavit pursuant to § 11(c)(1). Ex. 10. In
his affidavit, petitioner asserted that he suffered a left shoulder injury caused by the flu
vaccination he received on October 20, 2015. Id. at ¶3. Petitioner averred that he
suffered the residual effects of his injury for more than six months and had not received
an award or settlement for the injury. Id. at ¶¶4-5.
       On June 15, 2018, petitioner filed additional affidavits from himself as well as
Allexa Hooper (petitioner’s daughter), Jeffrey Hooper (petitioner’s brother), Elizabeth
Hooper (petitioner’s wife), and signed witness letters from two of petitioner’s children,
Delia Hooper and Kelson Hooper. Exs. 16-21.
      Petitioner’s second detailed affidavit dated approximately 30 months following his
shoulder injury provided a more detailed description of his medical history and the
impact of his shoulder injury on his activities of daily living. Ex. 16. Petitioner described
how his injury effected his ability to complete daily tasks such as driving, yard work, and
even showering. Id. at ¶ 5. Petitioner also described how the injury limited his ability to
engage in recreational activities, and negatively impacted his relationship with his

6
 Petitioner also saw Dr. Knowles for a workers’ compensation recheck on November 14, 2016, who
noted that petitioner had not made any progress since last visit. Ex. 13 at 23.



                                                 6
family. In addition, while surgery did help alleviate pain, petitioner stated he continues
to suffer from a limited range of motion and chronic pain. Id. at ¶ 7-10.
        In her affidavit, Ms. Hooper described how petitioner’s injury effected his daily
activities. Ex. 17. Ms. Hooper claimed that, prior to his shoulder injury, petitioner would
play the guitar around the house and participate in band practice, an activity that
allowed her to feel close and connected to him. Id. at ¶6. However, “[w]ithout being
able to comfortably move his arm, [petitioner] stopped playing guitar around the house,
he could no longer lift the heavy equipment of [the] sound system.” Ms. Hooper also
described how her other siblings were negatively effected by petitioner’s inability to
participate in activities such as swimming and golfing. Id. at ¶ 7.
       Petitioner’s brother, Jeffrey Hooper, also submitted an affidavit. Ex. 18. Mr.
Hooper stated that, prior to petitioner’s vaccination, petitioner would enjoy activities
such as bowling, fishing, and golf competitions. Id. at ¶4. However, after his surgery,
Mr. Hooper stated petitioner had difficulty playing golf at all, and when he did compete
he was forced to do so in a lower division. Id. Mr. Hooper also stated that petitioner’s
current golf swing “is about 50% of what it used to be”, and petitioner often complains of
pain. Id. at ¶6. Further, petitioner could no longer enjoy fishing or bowling. Id.
        Petitioner’s wife, Mrs. Elizabeth Hooper, described how petitioner’s injury
effected his health and ability to care for his children. Mrs. Hooper emphasized that
petitioner’s injury and subsequent treatment limited his ability to carry out routine
household duties such as home maintenance, and even simple tasks like unloading
groceries. Ex. 19 at ¶6. This resulted in a significant stress on the entire Hooper family,
as it was not an “easy task for me to hold it all together while my husband had days
when he was just falling apart, our children felt helpless as they watched the man they
looked up to struggle daily.” Id. at ¶10. Mrs. Hooper also described how his injury
resulted in his loss of activities he loved, including golf, bowling, and activities with their
children. Id. at ¶8.
        The affidavits from petitioner’s children, Delia Hooper and Kelson Hooper,
reiterate that petitioner’s injury caused physical and emotional distress and led to
significant disruptions of his ability to care for his family, connect with his children, and
perform recreational activities. Exs. 20, 21.
   IV.     Party Contentions
       Petitioner requests reimbursement of $287,921.48 in compensation, consisting of
$200,000.00 for actual pain and suffering, $50,000.00 for future pain and suffering, and
$37,921.48 for past lost wages. Petitioner’s Brief (“Pet. Brief”) at 1. Respondent does
not object to the $37,921.48 in lost wages. Respondent’s Brief (“Res. Brief”) at 6.
Thus, the only disputed issue before the undersigned is the amount of damages to be
awarded for pain and suffering.



                                               7
       Petitioner argues that he should be awarded $200,000.00 for actual pain and
suffering, and $50,000.00 for future pain and suffering for the year following this
decision. Pet. Brief at 1, 9. Petitioner asserts that “[p]etitioners in the Vaccine Program
with less severe SIRVA injuries are routinely awarded less damages than what Mr.
Hooper is seeking for his personal pain and suffering.” Id. at 6. Petitioner compares the
instant case to two prior cases in which damages were decided by the undersigned.
Specifically, petitioner cites: Collado v. HHS, No. 17-0225V, 2018 WL 3433352 (Fed. Cl.
Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and suffering and $772.53 for
unreimbursable expenses), and Dobbins v. HHS, 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 for unreimbursable expenses). Pet. Br. at 6-8.
        Petitioner emphasizes that he underwent treatment for two years and five
months, which included steroid injections, physical therapy, MRI and x-ray imaging,
EMG/NCV testing, prescription narcotic pain medication, and a left shoulder arthroscopy
and subacromial bursectomy. Pet. Brief at 5. Petitioner asserts he is entitled to
substantially more pain and suffering than other SIRVA cases because of the extensive
treatment he received, and ultimate 50% loss of his arm function. Id. at 8. Further,
petitioner asserts he is entitled to future pain and suffering because he continues to
experience lack of mobility, arm function, and chronic pain. Id. As a result of his injury,
petitioner avers that family and work life suffered along with his emotional health. Id. at
8-9.
        Respondent argues that petitioner should be awarded $117,500.00 in
compensation for pain and suffering. Res. Brief at 6. Respondent’s valuation of pain
and suffering in this case is based on “(1) the nature and degree of petitioner’s injury
based upon the record as a whole (i.e., whether petitioner’s shoulder injury could be
fairly described as being mild, moderate, or severe compared to other SIRVA cases in
the Program); (2) the duration of petitioner’s injury (i.e., whether it was temporary or
permanent); and (3) the extent of any disability (i.e., whether petitioner’s shoulder injury
resulted in a partial or total disability).” Id. at 9. Respondent also stated that his
approach was “informed by the court’s evaluation of contested SIRVA claims, which
provides a valuable context for assessing the damages in this case, and by the unique
Programmatic experience gained by respondent through his resolution of hundreds of
SIRVA claims within the Special Processing Unit (“SPU”) over the past several years.”
Id. at 9-10. However, respondent does not cite any decisions relating to contested
SIRVA claims. Respondent contends that petitioner suffered a mild to moderately
severe SIRVA, with permanent partial loss in the use of his left arm. Id. at 10.
Respondent also notes that surgery helped alleviate petitioner’s pain, and that his injury
has reached its maximum medical improvement. Id. Respondent emphasizes that
petitioner’s post-surgical treatment records reflect that his shoulder injury is unlikely to
worsen, and, “although it continues to bother him, [it] is not significantly incapacitating to
petitioner. Id. at 11.


                                              8
    V.      Discussion
      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. HHS, No. 93-92V, 1996
WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
        There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. HHS, 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.
HHS, 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. 7 I.D., 2013 WL
2448125, at *9; McAllister v. HHS, No 91-103V, 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). Further, when an amount is awarded for “projected”—i.e., future—“pain and
suffering,” such amount must be adjusted to its “net present value.” Childers ex rel.
Overheu v. HHS, No. 96-194V, 1999 WL 159844, at *1 (Fed. Cl. Mar. 5, 1999) (citing
Youngblood v. HHS, 32 F.3d 552 (Fed. Cir. 1994)).

       The undersigned may look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering. Jane Doe
34 v. HHS, 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. 8 Hodges v. HHS, 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims). Importantly, however, it must
also be stressed that pain and suffering is not determined based on a continuum.
Graves v. HHS, 109 Fed. Cl. 579 (2013). Instead, it is assessed 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.



7 In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times
petitioner was a competent adult with no impairments that would impact his awareness of his injury.
Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s
injury.
8From July 2014 until September 2015 the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, which include the majority of SIRVA claims, have remained on the
undersigned’s docket.

                                                      9
        In that regard, the undersigned notes that over the past four years the SPU has
amassed a significant history regarding damages in SIRVA cases. In Kim v. HHS, the
undersigned explained that after four years of SPU experience, 864 SIRVA cases were
resolved informally as of July 1, 2018. Kim v. HHS, No. 17-418V, 2018 WL 3991022, at
*6 (Fed. Cl. Spec. Mstr. July 20, 2018). The undersigned noted that the median award
for cases resolved via government proffer was $100,000.00 and the median award for
cases resolved via stipulation by the was $71,355.26. 9 Id. The undersigned noted that
“to the extent prior informal resolutions are to be considered, the undersigned finds that
the overall history of informal resolution in SPU provides a more valuable context for
assessing the damages in this case. Since it reflects a substantial history of resolutions
among many different cases with many different counsel, the undersigned is persuaded
that the full SPU history of settlement and proffer conveys a better sense of the overall
arms-length evaluation of the monetary value of pain and suffering in a typical SIRVA
case.” Id. at *9.
       Additionally, since the inception of SPU in July 2014, there have been several
reasoned decisions by the undersigned awarding damages in SPU SIRVA cases where
the parties were unable to informally resolve damages. 10 Typically, the primary point of
dispute has been the appropriate amount of compensation for pain and suffering.
     A. Determining Petitioner’s Award of Pain and Suffering in This Case

        The undersigned is mindful of previous cases and those cited by the parties in
their respective briefs. However, 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. Upon the

9 The undersigned further stressed that the “typical” range of SIRVA awards – meaning the middle
quartiles – is $77,500.00 to $125,000.00 for proffered cases and $50,000.00 to $95,228.00 for stipulated
cases. The total range for all informally resolved SIRVA claims – by proffer or stipulation – spans from
$5,000.00 to $1,500,000.00. 2018 WL 3991022, at *6. Importantly, these amounts represent total
compensation and typically do not separately list amounts intended to compensate for lost wages or
expenses. Id. The undersigned noted that “These figures represent four years’ worth of past informal
resolution of SIRVA claims and represent the bulk of prior SIRVA experience in the Vaccine Program.
However, these figures are subject to change as additional cases resolve and do not dictate the result in
this or any future case. Nor do they dictate the amount of any future proffer or settlement.” Id.
10See, e.g., Desrosiers v. HHS, No. 16-224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017);
Dhanoa v. HHS, No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018); Marino v. HHS,
No. 16-622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018); Collado v. HHS, No. 17-225, 2018
WL 3433352 (Fed. Cl. Spec. Mstr. Jun. 6, 2018); Knauss v. HHS, No. 16-1372V, 2018 WL 3432906 (Fed.
Cl. Spec. Mstr. May 23, 2018); Kim v. HHS, No. 17-418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. Jul. 20,
2018); Dobbins v. HHS, No. 16-854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018); Dirksen v.
HHS, No. 16-1461, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018); Cooper v. HHS, No. 16-
1387V, 2018 WL 6288181 (Fed. Cl. Nov. 7, 2018), Knudson v. HHS, No. 17-1004, 2018 WL 6293381
(Fed. Cl. Spec. Mstr. Nov. 7, 2018).

                                                   10
undersigned’s review of the complete record and in consideration of the undersigned’s
experience evaluating SIRVA claims, the undersigned finds that an award of
$185,000.00 in actual pain and suffering and $1,500.00 per year for his life expectancy
(reduced to net present value) in future pain and suffering is appropriate 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 her suffering.

           a. Severity of the Injury
        The undersigned finds that petitioner experienced a severe SIRVA. Petitioner
first reported left shoulder pain two days following his flu vaccination on October 22,
2015. Ex. 2 at 11. Thereafter, he reported significant pain at multiple treatment
sessions, rating his pain at a 10 out of 10. Ex. 2 at 163-171; Ex. 4 at 13; Ex. 5 at 87.
Petitioner reported some improvement of his symptoms with medication and physical
therapy, and was pleased with his initial progress. Ex. 5 at 23-29. However, following a
brief lapse in treatment, petitioner’s shoulder regressed and he again reported
significant pain on February 25, 2016. Ex. 3 at 26-27. At that time, petitioner’s
physician remarked that it was the “worst case of frozen shoulder caused by flu
injection” and that petitioner’s shoulder was “nearly useless….” Id. at 27. Petitioner
ultimately underwent arthroscopic left shoulder surgery, manipulation and anterior
acromioplasty, and a bursectomy on June 3, 2016. Ex. 3 at 6-9. At the end of
petitioner’s post-surgical physical therapy on October 12, 2016, he reported that he was
able to perform more activities as his range of motion continued to improve. Ex. 7 at
101-102. Petitioner also reported that his pain scale was 4 at worst, 0 at best, and at
that time a 1. Id. Notably, petitioner’s physical therapy goals did not include pain-free
activities, but actions such as “performing household activities with pain” and “lifting a
10 lb. object onto an overhead shelf with pain.” Ex. 7 at 101 (emphasis added).
       Despite petitioner’s post-surgical improvements, he suffered residual pain and
limited range of motion, including a permanent loss of shoulder function. Petitioner’s
recent medical records describe petitioner’s shoulder as “fairly functional but limited”
and on August 8, 2017 Dr. Knowles noted that petitioner’s range of motion was still
limited “with abduction to about 90 Deg[rees], and flexion to about 110 [degrees].
[H]igher than this he has pain, no pain when arm is held at low angles.” Ex. 22 at 9.
        Additionally, the undersigned has considered the extent to which petitioner’s
injury impacted his personal life. For instance, petitioner has credibly described his
physical difficulty in caring for his children and performing other activities of daily living.
Exs. 10, 16-21. Petitioner’s affidavits as a whole reiterate that his injury caused


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physical and emotional distress, and led to significant disruptions of his ability to work,
care for and interact with his family, and perform recreational activities. Exs. 10, 16-21.
          b. Duration of the Suffering

                  i. Past Pain and Suffering.

         As described above, the undersigned finds that there is evidence that petitioner
suffered moderate to severe pain from the time of vaccination up to and until October
12, 2016, a period of approximately two years. The undersigned acknowledges that
during this time, petitioner suffered episodes of severe pain, mostly directly following the
vaccination and for the period before his surgery. Further, petitioner’s ultimate outcome
still involved pain with certain movements and limited mobility. Ex. 7 at 101. Moreover,
as of March 16, 2018, petitioner was evaluated by Dr. Knowles as having lost 50% of
his left arm function, and his recovery was considered stable but that it had “reached a
plateau”. Ex. 22 at 5. Based on Dr. Knowles assessment, the undersigned finds that
petitioner’s current levels of decreased mobility, pain and suffering, are likely to continue
as further discussed below.
      Thus, in light of all of the above, the undersigned finds that $180,000.00
represents an appropriate award for petitioner’s actual or past pain and suffering.
                 ii. Future Pain and Suffering

       Petitioner also maintains that he continues to suffer the effects of his injury.
Petitioner stresses that he continues to experience a lack of mobility, a loss of arm
function, and chronic pain entitling him to future pain and suffering. Pet. Brief at 8. It is
clear that petitioner’s pain following his June 3, 2016 surgery was significantly less than
the pain he experienced previously, and his range of motion was much improved.
However, as of March 16, 2018, petitioner was evaluated as having lost 50% of his left
arm function, and his recovery was considered stable but that it had “reached a
plateau”. Ex. 22 at 5. Therefore, petitioner’s disability is considered permanent. To
cover additional pain and suffering petitioner is likely to experience, the undersigned will
award some compensation for future pain and suffering.
        There are only two reasoned SIRVA damages decisions that have awarded
compensation for future pain and suffering: Dhanoa v. HHS, No. 15-1011V, 2018 WL
1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) and Curri v. HHS, No. 17-432V, 2018 WL
6273562 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). In Dhanoa, the special master awarded
$10,000.00 for pain and suffering for the year immediately following the decision, but
gave no award for subsequent years. Id. at *7. In Curri, taking into account petitioner’s
significant arm pain, her permanently reduced range of motion, and the unique
challenges petitioner faced in her day-to-day life, the special master found that $550.00
per year to be an appropriate award for petitioner’s future pain and suffering. Id. at *7.
      In this case, the undersigned finds that petitioner’s prognosis regarding the
ongoing nature of her pain and suffering is similar to that of the petitioner in the Curri

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case. Curri, 2018 WL 6273562. In Curri, the petitioner filed a record from her
orthopedist stating that petitioner’s left shoulder “had reached its ‘maximum medical
improvement,’ leaving her with a permanent ‘scheduled loss of use’ of 22.5 percent of
her left arm.” Id. at *2. The special master awarded petitioner an award of $550.00 per
year for her future pain and suffering considering 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. Id.
at *7. In this case, there is a similar statement from petitioner’s doctor, Dr. Knowles,
regarding the permanent nature of his shoulder injury. In Dr. Knowles most recent
treatment record, he noted petitioner “lost about 50% of his L[eft] arm function” but
experienced “no pain and good function when using arm below shoulder level.” Ex. 22
at 5. Further, Dr. Knowles stated that petitioner had “reached a plateau” and that it was
unlikely he would improve further. Id.
        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, 1996 WL 147722 at *22-23; Shapiro v. HHS, 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.”). Based on the statement of petitioner’s medical
practitioners, the undersigned finds that an award of $1,500.00 per year for his life
expectancy to be an appropriate award for petitioner’s future pain and suffering. This
amount is to be reduced to net present value.
     VI.    Conclusion
        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. In light of all of the above, and in
consideration of the record as a whole, the undersigned finds that petitioner should be
awarded $185,000.00 in compensation for actual pain and suffering, $1,500.00 per year
for his life expectancy for future pain and suffering (reduced to net present value), and
$37,921.48 for lost wages. Petitioner was born on August 22, 1975, and his remaining
life expectancy is approximately 30 years. 11 Thus his future pain and suffering
damages total approximately $45,000.00
       The parties are to file a joint status report no later than 30 days, (1)
converting the undersigned’s award of future pain and suffering to its net present
value, 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.



11Petitioner’s life expectancy was calculated using the tables compiled by the National Center for Health
Statistics. See Nat’l Ctr. for Health Statistics, United States Life Tables, 2015 (2018) at Table A.


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




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