The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1504V
HELEN ANGLEWICZ, Chief Special Master Corcoran
Petitioner,
v. Filed: February 8, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 30, 2020, Helen Anglewicz 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 following her receipt of an influenza (“flu”) vaccine
on September 16, 2019, she suffered a shoulder injury related to vaccine administration
(“SIRVA”), as defined in the Vaccine Injury Table. Petition at ¶¶ 1, 24-25. I determined
Petitioner was entitled to damages, but deferred resolution of that issue, to allow the
parties to attempt to resolve it themselves – but they were unable to do so.
For the foregoing reasons, I find that Petitioner is entitled to compensation in the
total amount of $134,085.12 (representing $130,000.00 for actual pain and suffering, plus
$4,085.12 for unreimbursable expenses).
1 Because this ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). 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, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
I. Relevant Procedural History
The procedural history leading up to the Ruling on Entitlement issued on August
2, 2023 (ECF No. 44)3 is summarized therein – and incorporated by reference here.
Afterwards, the parties confirmed that they were unable to informally resolve damages
reiterated their request for a decision based on the damages briefing previously
submitted. Joint Status Report filed Sept. 14, 2023 (ECF No. 47). In light of the case’s
age and the atypical nature of the damages disputes – particularly with respect to lost
wages – I transferred the case out of SPU and onto my regular docket for further
proceedings. Notice of Reassignment entered on Nov. 29, 2023 (ECF No. 48). Petitioner
followed up again, stating that the parties “presume[d] that the Court would enter a
damages award based on the briefs previously filed and that nothing further is required
of the parties at this time,” noted via Informal Communication entered on Jan. 12, 2024
(Non-PDF). The matter is now ripe for adjudication.4
II. Relevant Evidence
After a complete review of the record in this case, I find that Section II of the Ruling
on Entitlement (ECF No. 44) at 3 – 8, represents an accurate summary of the relevant
facts in this matter. That aspect of the Ruling on Entitlement is fully incorporated and
adopted, although additional facts pertinent to the damages determination will be added
here.
III. Damages
Under the Vaccine Act, the petitioner bears the burden of proof with respect to
each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No.
93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). In another
recent decision, I discussed at length the legal standard to be considered in determining
damages and prior SIRVA compensation within SPU. I fully adopt and hereby incorporate
3 The Ruling on Entitlement was withheld from public posting in light of Petitioner’s timely Motion of
Redaction on Aug. 14, 2023 (ECF No. 45); see also Response filed on Aug. 25, 2023 (ECF No. 46);
Order deferring ruling on Nov. 29, 2023 (Non-PDF).
4 I also conclude that the medical records are sufficiently complete for adjudication of damages. The Ruling
on Entitlement identified potentially outstanding urgent care records – but upon further review, those seem
most likely to be from late 2021 or January 2022 – which is significantly attenuated from both Petitioner’s
initial treatment course for SIRVA and the claimed lost wages, and therefore, not crucial for resolving those
issues.
2
my prior discussion in Sections I and II of McKenna v. Sec’y of Health & Hum. Servs., No.
21-0030V, 2023 WL 5045121, at *1-3 (Fed. Cl. Spec. Mstr. July 7, 2023).5
A. Lost Earnings
The Vaccine Act provides, where the injured party’s “earning capacity is or has
been impaired by reason of such person’s vaccine-related injury,” for recovery of “actual
and anticipated loss of earnings determined in accordance with generally recognized
actuarial principles and projections.” Section 15(a)(3)(A). Lost earnings calculations must
be performed in a “cautious manner.” Brown v. Sec’y of Health & Hum. Servs., No. 00-
0182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2005). And a lost earnings
award “may not be based on speculation.” Moreland v. Sec’y of Health & Hum. Servs.,
No. 18-1319V, 2022 WL 10469047, at *3 (Fed. Cl. Spec. Mstr. Sept. 2, 2022).
Here, Petitioner requests $28,074.05 for past lost earnings. Brief at 12. She
represents that she and her husband have equal ownership in a commercial and industrial
LED lighting business. Ex. 11 at ¶ 2. She serves as Vice President, oversees the finances
and administrative needs; and has assisted on sales calls and lighting installation jobs.
Id. Her husband is the President, overseeing sales and installations. Id. at ¶ 4. Petitioner
avers: “During the worst of my vaccine injury, and while I was recovering from surgery, I
was unable to work. My responsibilities necessarily fell to my husband during this time,
which took his time and attention away from sales and installations. The business suffered
as a result.” Id. at ¶ 3. “As owners, my husband and I do not take a traditional salary and
do not receive a paycheck. Instead, we make periodic distributions from the company to
ourselves.” Id. at ¶ 4. She also avers that based on her 50% ownership share, 50% of
each year’s profits are attributable to her. Id. at ¶¶ 4 – 8; id. at pages 7 – 9 (business’s
profit and loss statements in 2018, 2019, 2020); Brief at 11 – 12 (multi-step calculation
from gross profits to net loss earnings).
In opposing any award for past lost earnings, Respondent questions the extent
that Petitioner’s shoulder injury prevented her from working and suggested that the
Pandemic also hurt her business’s profits in 2020. Response at 17. Respondent also
contends that Petitioner has “provided insufficient information to calculate actual and
anticipated loss of earnings in accordance with generally recognized actuarial principles
and projections” – which should arguably focus on net profit after deduction for ordinary
business expenses, consider whether Petitioner could have mitigated any business
impacts by temporarily compensating someone else to perform at least some of her
5 This prior discussion informs my determination of damages notwithstanding that this case was transferred
out of SPU.
3
responsibilities, and include additional detail about Petitioner’s responsibilities and her
hours. Id. at 17 – 18.
Petitioner replies that she should not be “ineligible” for an award of lost earnings
because she is a small business owner; she has documented her business losses “as
best she could”; “there is no way to quantify a percentage of business losses that are
attributable to the COVID-19 pandemic,” and that the Court may use its discretion in
considering the pandemic’s impacts on her business. Reply at 8. She has offered no
additional evidence (not in the record at the time entitlement was decided) in support of
this damages component.
I first emphasize that Petitioner’s claim is appropriately limited to 2020, coinciding
with the acute treatment for her shoulder injury. But as noted in the pain and suffering
analysis, I find that the alleged business impacts attributable to her shoulder injury were
most likely centered in January – April 2020, and certainly not continuing beyond July
2020, at which point she had achieved a substantial recovery and discontinued treatment.
But this still leaves the question of what quantum of damages is justified, given the
existing record.
In her Reply, Petitioner concedes that the Pandemic caused at least some
disruptions to her business in 2020. From a review of the 2019 – 20 annual statements,
the most dramatically decreased line item is “Sales – Commissions.” Ex. 11 at 8 – 9.
While Petitioner’s affidavit suggests that her vaccine injury took her husband away from
sales, it is also reasonable to conclude that they, and potential customers, were avoiding
in-person contact during the Pandemic throughout 2020. (Consistent with Petitioner’s own
concerns, documented in both the contemporaneous medical records and her later
affdiavits.) Respondent has raised additional, not unreasonable questions about how to
calculate the business’s profits that can be attributable to Petitioner – but there appears
to be limited available documentation on those questions.
In the end, in making any damages calculation, I am limited to what is “reasonable,”
and specifically what figures proposed have sufficient evidentiary support. Here,
Petitioner has both failed to defend the specific sums requested, but also more broadly
not demonstrated that the claimed lost wages were in fact lost due to the vaccine injury,
as opposed to the negative business impacts of the Pandemic or simply market vagaries.
Accordingly, no lost wage award is appropriate. This does not, however, work a great
injustice upon the Petitioner, since the pain and suffering award can be calculated to take
into account the impact of her SIRVA on her ability to carry out her business interests.
4
B. Pain and Suffering
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). 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.6
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult, with no impairments to her mental faculties or
capacity. I therefore analyze principally the severity and duration of Petitioner’s injury. In
performing this analysis, I have reviewed the record as a whole, including all medical
records, declarations, affidavits, and all other filed evidence, plus the parties’ briefs and
other pleadings. I also have taken into account prior awards for pain and suffering in both
SPU and non-SPU SIRVA cases, and I rely upon my experience adjudicating these
cases. However, I base my ultimate determination on the specific circumstances here.
Petitioner maintains an aware of $150,000.00 is appropriate. See Brief at 12 – 20;
Reply at 3 – 8.7 In contrast, Respondent argues for the lesser sum of $105,000.00.
Response at 10 – 16.8
The medical records reflect that Petitioner’s left shoulder pain began within 48
hours after the September 11, 2019, vaccination. Although the shoulder pain was not
itself complained of within that timeframe, it was documented beginning 25 days later,
and consistently thereafter. The initial treatment course included two primary care
evaluations for shoulder pain especially with movement, prompting a 4-day course of oral
steroids (in addition to over-the-counter Tylenol and ibuprofen).
Roughly two months post-vaccination, Petitioner’s pain rated 5 – 6/10, particularly
6 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May
14, 2013) (quoting McAllister v. Sec’y of Health & Hum. 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)).
7 Citing Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr.
Feb. 1, 2019) (awarding $160,000.00 for actual pain and suffering); Wilson v. Sec’y of Health & Hum.
Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. March 18, 2021) ($130,000.00); Nute v.
Sec’y of Health & Hum. Servs., No.18-0140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019)
($125,000.00).
8 Wilt v. Sec’y of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24,
2020) (awarding $110,000.00 for actual pain and suffering); Wylie v. Sec’y of Health & Hum. Servs., No.
20-1314V, 2022 WL 17968929 (Fed. Cl. Spec. Mstr. Dec. 7, 2022) ($108,000.00); Weed v. Sec’y of Health
& Hum. Servs., No. 18-1473V, 2021 WL 1711800 (Fed. Cl. Spec. Mstr. Mar. 30, 2021) ($105,000.00).
5
with movement, and she was first documented to have positive Neer’s and Hawkins signs
(indicating impingement). Shoulder movement was painful, if not objectively restricted.
She was instructed on home exercises. She received a steroid injection (Kenalog) which
relieved her pain temporarily.
But by about four months post-vaccination, on February 3, 2020, Petitioner’s pain
had increased to 7/10, Neers and Hawkins signs remained positive, and she was
documented for the first time to have objective limitations in range of motion (specifically
extension and internal rotation – although the extent of limitation is not specifically noted)
leading to an assessment of adhesive capsulitis. A second steroid injection was
administered, which did not provide any relief. The MRI findings also included a complete
supraspinatus tear and mild osteoarthritis.
About six months post-vaccination, on March 20, 2020, Petitioner underwent
surgery on her shoulder, which involved acutely worsened pain as evidenced by the
orders for prescription-strength ibuprofen and Percocet.9 She took these medications for
approximately one month after surgery (the length of the prescriptions), by which point
her pain had decreased to 3/10, and she had “improving” but still “limited” internal and
external rotation, and her orthopedic surgeon authorized formal physical therapy (“PT”).
At the April 24, 2020, PT initial evaluation, Petitioner had a similar pain rating and
objective deficits. While she did not return to PT thereafter, the medical records reflect
her discomfort with in-person encounters due to the Pandemic and that the therapist also
provided a home exercise program via an online platform. I accept Petitioner’s concerns
during the height of the Pandemic as a credible explanation for avoiding in-person
treatment. I also accept that her shoulder injury was sufficiently severe to at least partially
disrupt her role (primarily between January and April 2020) as vice president of a small
business, both “oversee[ing] its finances and administrative needs [and…] assist[ing] on
sales calls and lighting installation jobs.” Ex. 11 at ¶ 2.
The record similarly establishes that Petitioner followed her home exercise
program for roughly three months, coinciding with her last orthopedics evaluation on July
27, 2020. At that time, the majority of her pain had subsided, and she was cleared to
return to normal activities. Ex. 10 at 61 - 62.10 Petitioner confirmed that her shoulder was
9 A single medical record includes Petitioner’s apparent report of taking oxycodone post-operatively, see
Ex. 4 at 10, but no other references to oxycodone have been identified. This notation is likely incorrect and
instead refers to the prescription for Percocet (5-325 mg, 30 tablets total, with no refills) to help manage
Petitioner’s post-surgical pain. See e.g., Ex. 4 at 12, 16.
10 Petitioner’s Damages Brief at 4, 14 inaccurately characterizes Ex. 4 at 4 – 7, medical records from
approximately eight months after the September 11, 2019, flu vaccine, that is May 19, 2020, as marking
6
doing well in subsequent primary care encounters. Ex. 10 at 10 – 20. Based on the
medical record evidence, I conclude that Petitioner’s SIRVA was moderately severe for
approximately ten months, or through July 2020, at which point she had achieved at least
a substantial recovery.
There is a question about Petitioner’s status thereafter. Petitioner alleges her right
shoulder “continued to deteriorate throughout the remainder of 2020 and 2021 [and…]
was especially painful after periods of activity [but…] it was very difficult to obtain
treatment for [her shoulder] because of shutdowns and restrictions related to the COVID-
19 Pandemic.” Ex. 11 at ¶¶ 12 – 13. But this account of an ongoing right shoulder injury
is inadequately substantiated. The existing medical records indicate at least a substantial
recovery, Petitioner did not respond to offers of PT “in clinic or via telehealth” in July 2020,
Ex. 7 at 13; her orthopedist noted that she could return “as needed” but she never did so,
Ex. 10 at 61; and she attended four primary care encounters for other concerns in August
– December 2020. Ex. 10 at 10 – 20.
In addition, when Petitioner sought further treatment for her right shoulder in early
2022, she established care with new providers who did not record a history relating back
to the September 2019 vaccination. An orthopedist did record such a history – but also
that Petitioner had suffered a “recurrence” of right shoulder pain at some unspecified time,
and that treater’s assessments were post-surgical tightness, arthritis, and potentially
cervical spine pathology. Ex. 12 at 17. The treater also maintained that she “may have
some continued pain given her underlying mild arthritis,” Ex. 12 at 12, which is
distinguishable from a SIRVA. Overall, there is not preponderant evidence that Petitioner
had ongoing right shoulder pain through 2020 – 22 that was at least substantially
explained by her SIRVA, as would be necessary to incorporate into the damages award.
Petitioner maintains her case is comparable to Reed (awarding $160,000.00),
which indeed featured a similar initial course (e.g., relatively prompt treatment and
moderately severe pain leading up to surgery approximately six months post-vaccination).
I do not assign a significant difference between the formal PT sessions seen in Reed, and
this Petitioner’s adherence to a home exercise program during spring – summer 2020.
But the Reed opinion accepted that the individual in question had suffered residual pain
and reduced range of motion that was attributable to her SIRVA for over two years, which
caused long-term pain management issues and significant impacts on her personal life.
2019 WL 1222925, at *15 – 16. The same has not been shown in this case.
“the final post-operative follow-up appointment” (emphasis added). Petitioner avers that Ex. 4 at 4 - 7
supports a conclusion that Petitioner was discharged with “constant aching in her shoulder” and pain rating
5/10, which she argues, persisted until she returned for treatment in 2022. But Petitioner’s framing omits
the additional and truly final post-operative follow-up appointment on July 27, 2020, see Ex. 10 at 61 – 62.
7
Nute (awarding $130,000.00) is also factually distinguishable – because that
individual received three cortisone injections during the initial treatment course; suffered
moderate pain for a longer period, nine months, before undergoing surgery; and had less
severe symptoms for an additional one to two months post-surgery. 2019 WL 6125008,
at *11 – 12. And while Petitioner emphasizes that in Nute, a shoulder MRI’s findings were
interpreted as normal, see Brief at 20, the subsequent surgery revealed “significant
bursitis” requiring a biceps tenodesis and other intervention, roughly comparable to the
injury in this case. Id. at *3.11
Respondent correctly observes that like this case, Weed, Wilt, and Wylie (awarding
between $105,000.00 - $110,000.00) each featured an initial moderately severe injury,
surgical intervention, and substantial recovery within approximately ten months post-
vaccination. However, I find that this Petitioner’s initial injury was somewhat more severe,
given that it required not only oral pain medications, but two steroid injections prior to
surgery – and more post-operative orthopedic management. I also recognize the
temporary stress and disruption to Petitioner’s role in running a business as reasonably
taken into account in the pain and suffering award. Therefore in my discretion, I find
that it is appropriate to make a higher award - $130,000.00 – for Petitioner’s actual
pain and suffering.
Conclusion
For all the reasons discussed above and based on consideration of the entire
record, I find that Petitioner is entitled to damages in the form of a lump sum payment of
$134,085.12 (representing $130,000.00 for actual pain and suffering, plus $4,085.12
for actual unreimbursable expenses).12
This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision.13
IT IS SO ORDERED. s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11 Petitioner also cites Wilson (awarding $127,500.00) – but that is not an easy comparison because of
factors including the absence of any cortisone injections and the initiation of PT prior to surgery. 2021 WL
1530731 at *3.
12 The parties have stipulated to the expenses. Response at 16; Reply at 8.
13 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.
8