                                    CORRECTED COPY

         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-2054V
                                     Filed: August 2, 2019
                                          PUBLISHED


    LUCINDA KELLEY,
                                                             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.


Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
        On December 28, 2017, Lucinda Kelley (“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 7, 2016, she suffered a shoulder
injury related to vaccine administration (“SIRVA”) to her left shoulder. Petition at 1. The
case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters. For the reasons discussed below, the undersigned now finds that petitioner is
entitled to compensation in the amount of $124,289.05.

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
   I.     Procedural History
       Ms. Kelley filed her petition for compensation on December 28, 2017. (ECF No.
1). On February 15, 2019, respondent filed his report pursuant to Vaccine Rule 4(c)
conceding that petitioner’s injury constituted a SIRVA Table injury and recommending
that appropriate damages be awarded. (ECF No. 23). The undersigned issued a ruling
on entitlement on February 15, 2019 finding petitioner entitled to compensation for
SIRVA. (ECF No. 24).
       A status conference was held on May 10, 2019. The parties stated that they had
reached an impasse regarding damages and agreed to submit to a decision by the
undersigned awarding damages based on the written record. The undersigned ordered
the parties to file a joint status report indicating the stipulated amount of petitioner’s
unreimbursable expenses. The undersigned further ordered each party to file
simultaneous briefs in support of their respective positions on the appropriate amount of
compensation. (ECF No. 30).
       On June 6, 2019, the parties stipulated that petitioner’s out-of-pocket expenses
totaled $4,289.05. (ECF No. 32). On June 10, 2019 the parties each filed briefs
addressing damages for pain and suffering. (ECF Nos. 34, 37). Accordingly, this case
is now ripe for an adjudication of petitioner’s damages.

   II.    Relevant Factual History
       Ms. Kelley received a flu vaccine on November 7, 2016, in her left deltoid.
Petitioner’s Exhibit (“Ex.”) 2. Petitioner’s prior medical history does not include any
mention of shoulder problems and is not otherwise relevant to her claim.
         In her declaration, Ms. Kelley stated that she noticed that the vaccine was
administered higher up on her shoulder than previous vaccines. Ex. 1 at 1. Ms. Kelley
stated that she experienced some initial pain after the vaccine was administered that
significantly worsened after a few days. Id. She stated she was brought to tears when
lifting her left arm upwards and any sudden movement increased the pain. Id. Ms.
Kelley described that she could not get dressed or undressed and was unable to pull
the covers on her bed without pain. Id.
        Ms. Kelley first sought treatment for her shoulder injury on November 30, 2016,
with Brandon Mines, M.D., an orthopedic specialist. She reported that her shoulder
pain began after receiving a flu shot three weeks prior. Ex. 3 at 1. She reported the
injection “seemed high” and was more painful than usual. Id. Ms. Kelly described her
pain as a “sharp, pulling” type pain which was increasing and any arm movement
exacerbated the pain. Id. Ms. Kelley rated it as 8 out of 10 on a scale from 1 to 10. Id.
        On examination, Dr. Mines found Ms. Kelley to have limitations in the range of
motion (“ROM”) of her left shoulder with mild to moderate pain. Ex. 3 at 3. The results
from an x-ray of the left shoulder were normal and Dr. Mines diagnosed petitioner with
tendonitis of left rotator cuff. Id. at 4. He administered a cortisone shot to Ms. Kelley’s
left shoulder and prescribed physical therapy and diclofenac for pain. Id. Dr. Mines
encouraged Ms. Kelley to ice her shoulder and to take over-the-counter non-steroidal
anti-inflammatory drugs for pain and to reduce inflammation. Id.

                                             2
        Ms. Kelley attended her first physical therapy (“PT”) visit on December 6, 2016.
Ex. 4 at 10. She reported that her pain had improved after she received the cortisone
injection on November 30, 2016, but stated that her pain was beginning to return. Ms.
Kelley rated her pain at 9/10 before she received the cortisone injection and a 2/10 after
the injection, with most of her pain occurring when she was reaching. Id. Petitioner
attended seven PT sessions in total. By her last session, Ms. Kelley reported only
minimal discomfort at night. Id. at 10-18. She was discharged from PT on January 27,
2017 with full ROM of her left shoulder and minimal symptoms. Id. at 18.
       Ms. Kelley returned to Dr. Mines on January 11, 2017 reporting that she was still
experiencing pain at night. Dr. Mines changed Ms. Kelley’s medication to meloxicam
because the diclofenac was not helping. Ex. 3 at 5-7.
       On February 24, 2017, Ms. Kelley underwent an MRI of her left shoulder. Ex. 3
at 8. The MRI showed a small focal near full-thickness tear of the infraspinatus with a
small interstitial delaminating tear extension along the myotendinous junction. The MRI
also showed supraspinatus tendinosis without high-grade partial or full thickness tears,
and a Type III acromion with a small subacromial spur. There was some small
subacromial/subdeltoid bursitis, but a preserved rotator cuff muscle bulk. Id. at 8-9.
        On March 21, 2017, Ms. Kelley sought further treatment from Spero Karas, M.D.,
an orthopedic surgeon at the Sports Medicine Clinic. Ex. 3 at 10. Dr. Karas noted that
Ms. Kelley reported a five-month history of left lateral shoulder pain that was worse with
overhead activities and at night. Id. According to petitioner, the cortisone injection and
PT both significantly improved her pain for one month, but the pain eventually returned
to its previous level. Id. Dr. Karas noted that Ms. Kelley occasionally took ibuprofen for
her pain which offered some relief. Id. On examination, Dr. Karas noted moderate
tenderness to palpation of Ms. Kelley’s left shoulder and a limited ROM with mild to
moderate pain reported. Id. at 12. Dr. Karas also noted that petitioner’s left shoulder
pain persisted and was not responding to conservative measures. Id. at 13. He
diagnosed her with AC arthritis, Type III acromion, rotator cuff tendinosis vs. partial
tearing, and biceps tendonitis. Dr. Karas discussed operative options with Ms. Kelley
including possible rotator cuff debridement and/or repair. Id. Ms. Kelley was to call
back if and when she elected to pursue surgery. Id.
        On May 24, 2017, Ms. Kelley underwent arthroscopic shoulder surgery, including
a subacromial decompression, distal clavicle excision, and biceps tenotomy. Ex. 5 at 1-
4. It was noted that Ms. Kelly had a biceps tendon tear that was released during the
surgery to prevent further pain and mechanical symptoms. Id. at 5-6. Also discovered
during the surgery was a large subacromial spur and hypertrophic bursa that was
removed to decrease symptoms of impingement. The AC joint was also removed to
alleviate pain and for degeneration of the joint. Ms. Kelley was discharged with
Percocet for pain and promethazine to prevent nausea and vomiting. Id. at 24.
       Petitioner returned to Dr. Karas for a post-operative visit on May 26, 2017. Ex. 3
at 29. Ms. Kelley reported that she was still experiencing moderate discomfort with
certain movements even though she was taking the pain medication as prescribed. Ms.
Kelley rated her pain at 3/10. Id. Dr. Karas prescribed physical therapy and a home
exercise program. Id. at 31.



                                            3
         Ms. Kelley began her post-operative PT on May 31, 2017. Ex. 4 at 19. At this
initial session, she complained of a feeling of tightness in her left shoulder with her
current pain level rated at 1/10 and at 3/10 at its worst. Id. Ms. Kelley stated that her
goal was to be able to carry her new baby granddaughter in four weeks. Id. The
physical therapist noted limitations in Ms. Kelley’s ROM, strength, and overall functional
capacity of the left shoulder. Id. Ms. Kelley continued with PT until June 6, 2018, at
which time she rated her pain at 0/10. Id. at 23.
       On June 13, 2017, Ms. Kelley returned to Dr. Karas’s office for another post-
operative evaluation where she rated her current pain at 1/10. Ex. 3 at 44. It was
recommended that Ms. Kelley continue with formal PT for eight more weeks. Id. at 46.
       Ms. Kelley continued with her PT sessions, occasionally reporting pain at 1/10 at
its worst. She continued to demonstrate limitations of the ROM, strength, and overall
functional capacity of her left shoulder. Ex. 4 at 29-40. During a July 10, 2017 PT
session, Ms. Kelley reported left upper extremity discomfort after walking her dogs. Id.
at 41. At her July 26, 2017 session, Ms. Kelley reported only minimal discomfort in her
posterior left shoulder and felt this her only remaining impairment. Id. at 47. However,
on August 3, 2017, Ms. Kelley again began reporting pain to the front of her left
shoulder when reaching across her chest. Id. at 51.
       On August 8, 2017, approximately ten weeks after Ms. Kelley’s shoulder surgery,
Dr. Karas evaluated petitioner’s progress. Dr. Karas noted that Ms. Kelley was doing
well with physical therapy and her pain was improving. Dr. Karas prescribed Ms. Kelley
additional PT for Ms. Kelley to continue strengthening her rotator cuff muscles and she
was to return in two months for a routine follow-up. Ex. 3 at 59.
        Ms. Kelley continued attending PT, occasionally reporting moderate pain to the
front of her left shoulder when reaching across her chest. Ex. 4 at 53. The PT records
indicated that she met her goal of reporting negative pain with carrying a baby as of
August 10, 2017. Id. at 55. However, on August 29, 2017, Ms. Kelley was still reporting
minimal left anterior shoulder pain which she attributed to holding her granddaughter for
prolonged periods over the weekend. Id. at 60.
       During her September 5, 2017 PT session, Ms. Kelley reported continued
discomfort with reaching across her body, which waxed and waned during the previous
month. Id. at 64-71. By October 2, 2017, she described occasional popping in her left
shoulder but stated her pain “isn’t too bad.” Id. at 72. The physical therapist wrote in
the assessment that Ms. Kelley had made great progress with both the ROM and
strength of her left shoulder. Id. at 73. She also noted that Ms. Kelley was still
moderately limited with her strength which appeared to be contributing to the “popping”
sensation in her left shoulder. Id. Ms. Kelley reported pain with higher level activities
and the therapist recommended that Ms. Kelley continue with skilled PT to focus on
strengthening her shoulder and decreasing her pain. Id.
        Ms. Kelley presented to the Sports Medicine Clinic on October 3, 2017 and was
evaluated by Robert Bowers, D.O. Ex. 3 at 71. Dr. Bowers noted that Ms. Kelley was
still experiencing some occasional discomfort over the anterior portion of her left
shoulder and reported that her shoulder continued to feel somewhat weak, but her ROM
had improved since her last visit and had significantly improved since surgery. Ex. 3 at


                                            4
71. Dr. Bowers recommended that Ms. Kelley continue with PT to work on
strengthening her left shoulder and instructed her to follow-up as needed. Id. at 72.
      Ms. Kelley continued with PT until she was discharged on December 13, 2017.
The physical therapist noted the following in the discharge assessment:
          Since her L shoulder arthroscopy, Lucinda has made great gains in ROM,
          strength, and pain control of the L shoulder. She has full ROM of the L
          shoulder as compared to the R shoulder and her strength is well within
          normal limits. She continues to [have] posterior cuff and postural
          stabilization deficits which appear to be contributing to her [symptoms]
          consistent with ACJ impingement after heavier lifting activities. She
          demonstrates upper trap compensation as the L shoulder begins to fatigue
          and this is likely leading to increased elevation of humeral head and,
          therefore, impingement. Pt. has been provided with an HEP to address
          continued decreased endurance of the L RTC and postural stabilization
          musculature. She has met all goals and is appropriate for [discharge] from
          skilled PT at this time with instructions to contact us with any questions or
          concerns.
Ex. 8 at 2.

   III.      Party Contentions

        Petitioner seeks an award in the amount of $134,289.05, consisting of
$130,000.00 as compensation for her pain and suffering, and $4,289.05 for past
unreimbursable medical expenses. Petitioner’s Brief in Support of Damages at 17,
(“Pet Brief”, ECF No. 37). In her brief, petitioner emphasizes that she suffered and
sought active treatment for 13 months, including a cortisone shot, shoulder surgery, and
many sessions of physical therapy. Id. Petitioner also claims the injury impacted her
activities of daily living and her role as a grandmother. Id. Petitioner is not making a
claim for lost wages.
        Respondent agreed to the $4,289.05 in unreimbursable medical expenses and
the parties memorialized the agreement in a joint status report. Joint Status Report
(ECF No. 32). Respondent argues that petitioner should be awarded $85,000.00 as
compensation for her actual pain and suffering. Respondent’s Memorandum Regarding
Damages at 1, (“Res. Mem.”, ECF No. 34). He maintains the medical records
demonstrate that petitioner’s SIRVA resolved within approximately one year. Id. at 4.
He argues that petitioner’s shoulder surgery was successful, and her pain improved
significantly so that she did not require additional treatment once PT concluded. Id.

   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

                                               5
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
rely on her own experience adjudicating similar claims. 3 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

3
 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.


                                                 6
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 resolved 4 within the Special
Processing Unit since its inception in July of 2014. 5 Of those cases, 602 resolved via
the government’s proffer on award of compensation, following a prior ruling that
petitioner is entitled to compensation. 6 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. 7 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. 8 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


4
    Additionally, 31 claims alleging SIRVA have been dismissed within the SPU.
5
  In Kim, infra, and Young, infra, the undersigned previously described SPU SIRVA case resolutions
through July 1, 2018.
6
  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.
7
  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
  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.


                                                      7
       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. 9

                       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. 10 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 interfered with her avid tennis hobby. In Desrosiers, petitioner presented

9
  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).

10
   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).



                                                  8
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 above the median proffered SIRVA
award. These awards have ranged from $110,000.00 to $160,000.00. 11 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. 12 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.




11
  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).
12
   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
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.


                                                     9
                        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. 13 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

        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. The undersigned determines that petitioner had full awareness of her suffering
and proceeds to analyze the severity and duration of the injury.

        Ms. Kelley was administered the flu vaccine on November 7, 2016, and she
experienced immediate pain that increased in severity over the next several weeks. Ex.
1. She sought treatment for the pain from an orthopedic specialist only 23 days after
the vaccine. At that time Ms. Kelley reported her pain at 8/10. She received a cortisone
shot which relieved some of the pain and was referred to physical therapy. Ex. 3 at 3.
Although PT reduced the pain for a period of time, her painful symptoms returned. Ex.
4 at 10. An MRI demonstrated an infraspinatus tear, supraspinatus tendinosis, and
bursitis, and surgery was recommended. Ex. 3 at 8, 13. Ms. Kelley elected to proceed
with surgery and underwent a subsequent course of physical therapy which concluded
on December 13, 2017. Ex. 4 at 10-80, Ex. 8 at 1-3.



13
  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).

                                                   10
       Although Ms. Kelley initially experienced pain that she described as so severe it
would sometimes bring her to tears, after the cortisone injection, she consistently rated
her pain to her physician and physical therapists at 0-2/10. Ex. 3 at 44, Ex. 4 at 19, 23,
29-40, 47, 55. The only noted exceptions were the immediate post-surgical visits in
which she rated the pain as 3/10. Ex. 3 at 29. When Ms. Kelley did report painful
symptoms, it typically occurred at night and affected her sleep causing fatigue. Ex. 3 at
5, 10, Ex. 4 at 14, 17-18.

      Ms. Kelley was discharged from physical therapy with a good prognosis, full
range of motion of her left shoulder, and strength within normal limits. Ex. 8 at 2.
However, it took her 45 sessions of PT over an eight-month period to reach this
outcome. Ms. Kelley continued to experience deficits in her strength during this period.
Id. Her total course of treatment lasted 13 months. Ex. 3 at 1, Ex. 8 at 2.

       As noted in section IV(B)(ii) above, the undersigned has awarded compensation
for pain and suffering above the median proffered SIRVA award in cases characterized
either by a longer duration of injury or by the need for surgical repair. On the whole, the
MRI imaging in these cases showed more significant findings. Since petitioner in this
case had significant findings on MRI and required surgical repair, she should be
awarded an amount above the median.

       Petitioner’s case is similar to two previously cited surgical cases: Collado and
Dobbins. In both of these cases as well as the instant case, the petitioner sought
treatment within a few weeks of the vaccination and was initially treated with a cortisone
shot. Subsequently, each petitioner underwent an MRI which revealed significant
findings leading to surgery to repair the damage. Finally, each petitioner followed up
the surgery with courses of physical therapy leading to an overall satisfactory result.
The undersigned awarded $120,000 in pain and suffering damages to Collado and
$125,000 to Dobbins. See n. 11, supra.

       Petitioner in this case argues that she should be awarded more than Collado
because her course of treatment lasted longer and she had eight times the amount of
physical therapy sessions. Pet. Brief at 16. However, the Collado petitioner was in
treatment for a similar time period (although with less frequency) as this petitioner and
she rated her pain at least an 8/10 for a longer duration despite medication and physical
therapy.

        Regarding Dobbins, petitioner argues she suffered more because she had a
longer duration of symptoms. Pet. Brief at 14. However, the petitioner in Dobbins
experienced a post-surgical condition called adhesive capsulitis that caused severe
limitations in her range of motion and required many sessions of physical therapy to
remedy. Her condition affected her ability to provide care to her terminally ill mother.

       In his brief, respondent proposes pain and suffering damages of $85,000.00 and
distinguishes Collado by noting that, despite surgery, the petitioner still claimed some
ongoing pain. Res. Mem. at 5. Respondent cited to four additional cases in support of

                                            11
his proposal, two of which did not involve surgery. Id. at 5-6. First, respondent relies on
Reed v. Sec’y of Health & Human Servs. Id. at 5. In Reed, the undersigned awarded
$160,000.00 for pain and suffering to a petitioner who had surgery and nearly two more
years of pain and reduced range of motion. Here, petitioner objectively suffered less
than the petitioner in Reed and thus is not entitled to $160,000.00 in pain and suffering
damages. However, the case does not justify an award as low as $85,000.00.

        Next, respondent cited to a non-SPU case, Curri v. Sec’y Health & Human
Servs., No 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). Res.
Mem. at 5. The petitioner in Curri had surgery and suffered several years thereafter
with continued pain. The special master granted her $120,000.00 in past pain and
suffering based on similar facts to Collado and Dobbins. In recognition of the ongoing
symptoms, he included a future award of $15,400.00. Curri at *6. Like Reed, Curri
does not support respondent’s proposed damage award of 85,000.00 for a case
requiring surgical repair. Rather, it provides support for an award of $120,000.00 to
petitioner.

       Finally, respondent relies on the pain and suffering awards of Desrosiers
($85,000.00) and Attig ($75,000.00) for support in awarding $85,000.00 to Ms. Kelley.
However, as previously noted, these cases did not involve surgery (section IV(B)(i),
supra) and thus do not support respondent’s position.

        In light of all of the above, and based on the record as a whole, the undersigned
finds that $120,000.00 in compensation for past pain and suffering is reasonable and
appropriate in this case.

   A. Award for Past Unreimbursed Expenses

      Petitioner requests $4,289.05 in past unreimbursable expenses and
respondent agrees to this amount. Joint Status Report (ECF 32). Thus, petitioner is
awarded $4,289.05 for her past unreimbursable expenses.

   B. 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 $120,000.00 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 $4,289.05 for her past unreimbursed
medical expenses. No award is made for lost wages.




                                            12
     VI.    Conclusion

       In light of all of the above, the undersigned awards petitioner a lump sum
payment of $124,289.05, (representing $120,000.00 for petitioner’s actual pain and
suffering and $4,289.05 for unreimbursable medical expenses) in the form of a check
payable to petitioner, Lucinda Kelley. This amount represents compensation for all
damages that would be available under §15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision. 14

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




14
  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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