Opinion

Sturdevant v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Mar 8, 2024
Status
Unpublished
On the bench
Nora Beth Dorsey
Cited by
0 cases
Authority
More cited than 32.9%

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”

How later courts described this case

  • 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”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 12, 2024

*************************

RONALD STURDEVANT, * PUBLISHED

*

Petitioner, * No. 17-172V

*

v. * Special Master Nora Beth Dorsey

*

SECRETARY OF HEALTH * Decision Awarding Damages; Influenza

AND HUMAN SERVICES, * (“Flu”) Vaccine; Bell’s Palsy; Pain and

* Suffering; Unreimbursable Expenses.

Respondent. *

*

*************************

William Cochran, Black McLaren Jones Ryland & Griffee, PC, Memphis TN, for Petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.

DAMAGES DECISION 1

On February 6, 2017, Ronald Sturdevant (“Petitioner”) filed a petition for compensation

under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42

U.S.C. § 300aa-10 et seq. (2018). 2 Petitioner alleges that he suffered Bell’s palsy as the result of

an influenza (“flu”) vaccination administered on November 3, 2015. Petition at Preamble (ECF

No. 1). On July 19, 2022, the undersigned issued a ruling on entitlement, finding that Petitioner

was entitled to compensation. Ruling on Entitlement dated July 19, 2022 (ECF No. 89).

1

Because this 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 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 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.

2

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National

Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,

42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Decision to individual sections of the

Vaccine Act are to 42 U.S.C. § 300aa.

The parties were unable to resolve damages and requested that the Court enter a schedule

for damages briefs. Since then, the parties’ briefs have been filed.

After consideration of all of the evidence, and for the reasons described below, the

undersigned finds that Petitioner is entitled to $100,000.00 for actual pain and suffering and

$158.53 for past unreimbursed expenses, for a total of $100,158.53. 3

I. PROCEDURAL HISTORY

Petitioner filed his petition on February 6, 2017. Petition. The early procedural history

from February 2017 through July 2022 was set forth in the undersigned’s Ruling on Entitlement

and will not be repeated here. See Ruling on Entitlement at 4-5.

Thereafter, the parties engaged in settlement discussions but were not able to resolve this

matter informally. Joint Status Report (“Rept.”), filed May 3, 2023 (ECF No. 111). During

settlement discussions, Petitioner filed various records, including billing records, updated

medical records, photographs, and affidavits. Petitioner’s Exhibits (“Pet. Exs.”) 58-69. The

parties agreed to submit the damages items that remained in dispute to the Court for resolution

on the briefs. Joint Status Rept. at 1.

On June 2, 2023, Petitioner filed a brief in support of his claim for damages. Pet. Brief in

Support of Damages (“Pet. Br.”), filed June 2, 2023 (ECF No. 115). Respondent filed his

responsive brief on July 24, 2023. Respondent’s Response to Pet. Br. (“Resp. Br.”), filed July

24, 2023 (ECF No. 118). Petitioner filed a reply on August 1, 2023. Pet. Reply to Resp. Br.

(“Pet. Reply Br.”), filed Aug. 1, 2023 (ECF No. 119).

This matter is now ripe for adjudication.

II. FACTUAL HISTORY

A. Medical Record History

The Ruling on Entitlement issued on July 19, 2022, and it set forth a summary of

Petitioner’s medical records, affidavits, and hearing testimony. See Ruling on Entitlement at 5-

29. Further, the parties have set forth summaries of relevant facts which support their respective

positions in their briefs, which the undersigned has reviewed as well as all of the medical records

and evidence filed in this matter.

A brief summary of some facts relevant to this Decision follows. While all the records

are important, these entries provide specific information about Petitioner’s condition important to

the undersigned’s Decision.

3

Petitioner does not seek lost wages and indicated there is no Medicaid lien. Pet. Brief in

Support of Damages (“Pet. Br.”), filed June 2, 2023, at 10 (ECF No. 115).

2

On November 3, 2015, at fifty-one years old, Petitioner received a flu vaccine in his left

arm. Pet. Ex. 2 at 2; Pet. Ex. 40 at 1-2.

Two days later, on November 5, 2015, Petitioner presented to his primary care physician,

Dr. Christopher R. Depner for right-sided facial numbness that “started yesterday afternoon.”

Pet. Ex. 3 at 18. Dr. Depner’s physical examination revealed paresis of Petitioner’s right seventh

cranial nerve. Id. at 19-20. Assessment was Bell’s palsy. Id. at 20. Dr. Depner commented,

“[p]atient with fairly classic Bell’s palsy with paresis in the distribution of the right [seventh]

nerve and also involving the forehead to some degree. He’s unable to close his left[4] eyelid

fully.” 5 Id. Dr. Depner planned to patch Petitioner’s eye, start Petitioner on prednisone 6 and

Famvir, 7 and have him follow up in one week. Id.

Petitioner followed up with Dr. Depner on November 10, 2015. Pet. Ex. 3 at 21.

Petitioner continued to have paresis of his right seventh cranial nerve. Id. at 23. At a follow up

examination on November 23, 2015, Petitioner reported he was doing well but had some eye

tearing and fuzzy distance vision. Id. at 24. Dr. Depner’s physical examination revealed paresis

of right seventh nerve, paralyzed right facial muscles, unable to raise right eyebrow, and

weakness closing right eyelid. Id. at 25-26. Assessment remained Bell’s palsy. Id. at 26. Dr.

Depner found Petitioner had not “made much improvement with his facial paralysis,” and

ordered him to attend physical therapy. Id.

Petitioner had his initial physical therapy evaluation on December 9, 2015 with Shanna

Winters. Pet. Ex. 4 at 44. “[Petitioner] report[ed] that pain lasted for a month but has resolved.”

Id. He reported “trouble with hand eye coordination, blurry vision, drinking from a cup or

straw,” and “increased light sensitivity secondary to not being able to close his eye.” Id. Ms.

Winters’ physical examination revealed Petitioner had a drooped eyebrow. Id. at 45. Petitioner

was unable to show his teeth, close his eyes, blink, squint, or inflate cheeks. Id. He was able to

drink from a straw with difficulty and was unable to drink from a cup. Id.

4

It appears Dr. Depner inadvertently referred to Petitioner’s left eyelid, instead of his right.

5

Dr. Depner added Petitioner was “able to close his right eye adequately, so [it was] no longer

drying out and bothering him. He still ha[d] rather dense right facial nerve paresis.” Pet. Ex. 3

at 20. It is not clear whether this is from a follow up visit, and if so, which visit.

6

Prednisone is “a synthetic glucocorticoid derived from cortisone, administered orally as an

antiinflammatory and immunosuppressant in a wide variety of disorders.” Prednisone, Dorland’s

Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=40742 (last

visited Jan. 10, 2024).

7

Famvir, or famciclovir, is “used in the treatment of herpes zoster and . . . of mucocutaneous

herpes simplex in immunocompromised patients.” Famciclovir, Dorland’s Med. Dictionary

Online, https://www.dorlandsonline.com/dorland/definition?id=18166 (last visited Jan. 10,

2024).

3

On December 14, 2015, Petitioner returned to Dr. Depner for follow up. Pet. Ex. 3 at 27.

Physical examination was unchanged. Id. at 28-29. Assessment remained Bell’s palsy. Id. at

31. Dr. Depner wrote “[Petitioner] still ha[d] a rather dense paralysis in the right face . . . . He

[was] able to close his eye to within about 90% of full closure.” Id.

Petitioner returned to Dr. Depner next on May 25, 2016. Pet. Ex. 3 at 32. Petitioner’s

Bell’s palsy had not resolved completely. Id. Dr. Depner noted Petitioner “still ha[d] right facial

weakness, but it ha[d] improved. He [was] able to blink and he [was] able to drink liquids and

drink with a straw.” Id. at 34. Petitioner reported he was six months out of physical therapy. Id.

Dr. Depner found Petitioner was “near the point of maximum medical improvement.” Id.

Assessment remained Bell’s palsy. Id.

On July 4, 2016, Petitioner presented to the Jones Memorial Hospital Emergency

Department for a laceration on the left side of his face from an air tool. Pet. Ex. 4 at 5.

Petitioner’s past medical history included Bell’s palsy. Id. at 12. On examination, no mention of

facial muscle weakness was noted. Id. at 13.

In 2017, Petitioner presented to Dr. Depner on numerous occasions for unrelated issues.

Pet. Ex. 26 at 1-20. In each of the physical examinations from January to April 2017,

Petitioner’s cranial nerves were grossly intact. Id. at 2, 6, 12, 15. On July 11, 2017, Dr.

Depner’s physical examination revealed right facial paralysis. Id. at 19. Dr. Depner noted

“[Petitioner’s] Bell’s palsy ha[d] improved quite slowly, but [was] still quite marked. He [was]

able to blink. He [could] close his right eye, but not tightly. His cornea [was] not drying out.”

Id. Dr. Depner told Petitioner he likely would not improve further. Id.

Petitioner visited Dr. Depner various times from 2018 to 2020 for annual examinations or

unrelated issues. Pet. Ex. 49 at 3-49. No complaints or comments regarding his Bell’s palsy

were documented at these visits. See id.

On September 26, 2022, Petitioner established care with Dr. Steven V. Pinto. Pet. Ex. 67

at 15. Dr. Pinto wrote Petitioner requested a letter “that states that his Bell’s palsy was due to his

flu vaccine. There is no definitive certainty on this but it remains a possibility. . . . The purpose

of the letter is for . . . seeking maximum monetary benefit in a lawsuit that he is currently

involved in.” Id. Assessment listed diagnoses which included “Bell’s palsy, possibly from [flu]

vaccine in 2012/2013.” Id. at 18.

Dr. Pinto authored a letter, dated September 26, 2022, which stated that “[b]ased on

compilation of his medical history, there is a clear timeline between [Petitioner] receiving a[]

[flu] vaccine in 2012/2013 and subsequently and soon after, developing right-sided Bell’s palsy

with subsequent right-sided temporomandibular joint disorder and right-sided ear dysfunction,

which have caused him significant distress.” Pet. Ex. 67 at 19.

On October 24, 2022, Petitioner sought care related to his right ear. Pet. Ex. 66 at 15. At

this visited, history of present illness documented Petitioner’s facial “paralysis [was] partially

improved.” Id. Physical examination documented “facial paralysis affection the right side of the

4

face.” Id. at 16. Petitioner’s issues with his right ear were not related back to his Bell’s palsy by

his physician.

Petitioner saw neurologist Dr. Maria Vivino on February 24, 2023. Pet. Ex. 68 at 16. Dr.

Vivino summarized Petitioner’s clinical course. Id. at 17. She noted that over the years,

Petitioner’s “right peripheral facial weakness did not change,” his “right eye would intermittently

tear,” and his “[c]onstant numbness over right preauricular region eventually lessened [but] had

since not changed.” Id. Around six months prior to this visit, Petitioner “[b]egan experiencing

recurrent episodes of muscle spasms and 8-10/10 over right ramus of the mandible, with pain

radiating to the angle of the mandible on the right. Symptoms would initially be mild/low grade

and then grad[ually] increase in severity.” Id. This would occur once per month, would be

triggered by moving jaw, and would be alleviated within one minute when he would “stop

talking and stop moving jaw[].” Id. Petitioner was “concerned these his [new] symptoms [were]

related to his right peripheral facial weakness.” Id. Petitioner also reported vision problems. Id.

Physical examination revealed “SI tenderness on palpation of the right ramus of the

mandible below the right ear” with “[n]o assoc[iated] muscle spasms over right ramus of the

mandible.” Pet. Ex. 68 at 19. Physical examination of the seventh cranial nerve showed

symmetric forehead and lips at rest and palpebral fissure 8 of right eye smaller than the left eye.

Id. at 20. “With muscle activation, asymmetry of forehead could not be definitively

appreciated.” Id. Sclera not seen with passive closure of eyes, and right eye lashes were not

buried with active closure of eyes. Id. He was “able to [] open right eye but not to the point of

sclera being seen.” Id. Decreased contraction of the dilator muscles of the lips on right side seen

with baring of teeth. Id. With active closure of mouth, right side of lips could be pulled back,

but teeth were not seen. Id.

Impression was “[l]ikely right Bell’s palsy” and “[i]ntermittent muscle spasms and pain

over right ramus of mandible, with pain radiating to the angle of the mandible on the right” with

unknown etiology. Pet. Ex. 68 at 23. Dr. Vivino wrote,

Although [patient] reported concurrent development of constant numbness over

the right preauricular region, which has since improved but has not resolved, latter

sensory deficit was not appreciated on neurol[ogic] exam[ination]. Although

[patient] reported not being able to see well in the inferolateral aspect of the

[visual field] of his right eye since he developed the above peripheral facial

weakness, latter [visual field] defect was not confirmed on [visual field] testing

with careful confrontation techniques using CF. 9

Id. With regard to Petitioner’s muscle spasms, Dr. Vivino opined they were unrelated to

his Bell’s palsy. Id.

8

Palpebral fissure is the “the longitudinal opening between the eyelids.” Rima Palpebrarum,

Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?

id=104268 (last visited Feb. 8, 2024).

9

It is not clear what “CF” means but it may be an abbreviation for “count fingers.”

5

On March 13, 2023, Petitioner underwent a DOT physical examination that demonstrated

20/30 uncorrected vision in his right eye. Pet. Ex. 62 at 7. This was changed from his August

2019 examination that revealed 10/20 uncorrected vision in his right eye. Id. at 3. His horizonal

field of vision was 170 degrees in 2019 and 85 degrees in 2023. Id. at 3, 7. Petitioner did not

file other DOT physical examination documents.

B. Affidavits

1. Petitioner

Petitioner averred that prior to his flu vaccination on November 3, 2015, he had never

suffered from Bell’s palsy. Pet. Ex. 1 at ¶¶ 3-4. The day after vaccination, “[he] began to have

pain, weakness[,] and paralysis in the right side of [his] face. Id. at ¶ 5; Pet. Ex. 64 at ¶ 8. He

“was unable to close his right eye,” his “eyesight became blurry,” and he “was unable to drink

from a cup.” Pet. Ex. 1 at ¶ 5; Pet. Ex. 64 at ¶ 8.

He sought treatment and was given steroid medication and an eyepatch. Pet. Ex. 1 at ¶ 6;

Pet. Ex. 64 at ¶ 8. He also underwent physical therapy and was given at-home exercises. Pet.

Ex. 1 at ¶ 6; Pet. Ex. 64 at ¶ 8.

Prior to vaccination and his Bell’s palsy, Petitioner “enjoyed working with [his] hands.

[He] built [his] house . . . and enjoyed repairing and maintaining the house, appliances,

equipment, automobiles, and motorcycles.” Pet. Ex. 64 at ¶ 3. Petitioner averred he is “not able

to enjoy working with [his] hands like [he] did before Bell’s palsy.” Id. at ¶ 9. He explained that

“[w]hen [he] [is] working with small items like screws or bolts[,] [his] eye waters, which is

annoying and takes away the joy that [he] experienced.” Id.

As of the date of his first affidavit, January 30, 2017, Petitioner “continue[d] to have

right-sided numbness and loss of sensation, particularly around the right side of [his] mouth.”

Pet. Ex. 1 at ¶ 7; see also Pet. Ex. 64 at ¶ 8. Additionally, “[his] right eye water[ed] more . . . ,

[he] continue[d] to blink abnormally, and [was] unable to raise [his] right eyebrow.” Pet. Ex. 1

at ¶ 7; see also Pet. Ex. 64 at ¶ 8.

As of May 31, 2023, the date on which he executed his declaration, he explained that he

“continue[s] to suffer from Bell’s palsy.” Pet. Ex. 64 at ¶ 10.

[He] still ha[s] right-sided numbness and loss of sensation, particularly around the

right side of [his] mouth. [He] continue[s] to do facial exercises multiple times

per day. If [he] do[es] not, then the right side of [his] face gets tense with pain

like the feeling of a leg cramp with pain of three to five on scale of one to ten (ten

being the worst). For these reasons[,] [he] constantly do[es] facial exercises.

Once every six weeks or so, [he] forget[s] to do [his] exercises and [his] face

tenses. A hot shower or heating pad will help reduce the tension. [His] right eye

still waters more than normal. Light conditions such as sunny days, fluorescent

lights, and light from a TV screen or cell phone screen at night cause [his] right

eye to water, which results in [him] constantly wiping [his] eye. In these same

6

light conditions, [he] blink[s] at a faster pace or may keep [his] eye shut longer

than normal. [He] [is] still unable to raise [his] right eyebrow. [He] work[s] as a

truck driver and must pass a DOT physical test to continue [his] employment.

The fear of not being able to pass the DOT physical and losing [his] source of

income causes [him] great distress. The exam includes vision, hearing, and

motion tests. At [his] last exam, the room had fluorescent lighting and [his] eye

became very tearful while performing the visual test. This was very upsetting for

[him]. Fortunately, [he] passed . . . , but [his] condition is permanent and [he] [is]

very worried about losing [his] job because of [his] condition.

Id.

Petitioner did not address or provide evidence to support his mileage claims regarding the

two disputed trips discussed in more detail below. See infra Part III.B; Pet. Ex. 64; Pet. Reply

Br. at 4; Resp. Br. at 11-13.

2. Patricia Blevin

Patricia Blevin has known Petitioner for over 20 years and has lived with him since 2002.

Pet. Ex. 65 at ¶ 2. On the day Petitioner developed Bell’s palsy, she thought Petitioner “had a

stroke and it was very upsetting.” Id. at ¶ 3.

Prior to his Bell’s palsy, Petitioner “enjoyed working with his hands as a do-it-yourself

mechanic. He built the house that [they] live in and enjoyed repairing and maintaining the

house, appliances, equipment, and [] vehicles.” Pet. Ex. 65 at ¶ 4. However, due to his Bell’s

palsy, Petitioner “has trouble working with smaller mechanical items” because his eye waters,

“tak[ing] [] the joy that he used to experience working with his hands.” Id. at ¶ 6. She also

noted that when Petitioner returns home from working as a trucker, “his Bell’s palsy is very

noticeable, more so now than it was when it started. His eye waters and he always appears to be

itching his face.” Id. at ¶ 5. Ms. Belvin added that Petitioner “worries about the future

consequences of his Bell’s palsy and this is very distressing to him.” Id.

III. PARTIES’ CONTENTIONS

A. Pain and Suffering

1. Petitioner’s Contentions

Petitioner requests a pain and suffering award of $175,000.00. Pet. Br. at 9; Pet. Reply

Br. at 4. Petitioner notes that he is not aware of any reasoned damages decision in a Bell’s palsy

case. Pet. Br. at 7. Thus, he cites to a review of civil jury verdicts from 1985 to 2000 for facial

nerve paralysis, where the mean award was $567,944.00. Id. (citing Pet. Ex. 69). 10

10

Daniel D. Lydiatt, Medical Malpractice and Facial Nerve Paralysis, 129 Archives

Otolaryngology Head & Neck Surgery 50 (2003).

7

For support, Petitioner notes awareness of the injury is not in dispute. Pet. Br. at 7; Pet.

Reply Br. at 2. At all relevant times, Petitioner “was a competent adult with no impairments that

would impact his awareness of his injury.” Pet. Br. at 7.

Regarding the duration of Petitioner’s injury, Petitioner contends his injury is permanent.

Pet. Br. at 7-8; Pet. Reply Br. at 2. Petitioner developed Bell’s palsy on November 4, 2015, over

eight years ago, and it has persisted since. Pet. Br. at 7; Pet. Reply. Br. at 2. Petitioner’s life

expectancy is 24 years, and thus, “the potential duration of his injury is approximately [32]

years.” Pet. Reply. Br. at 2. Petitioner notes Respondent agrees Petitioner’s injury is permanent.

Id. (citing Resp Br. at 6).

To further support his contention that his injury is permanent, Petitioner cites to

statements from his treating physicians and expert. Pet. Br. at 7. Petitioner’s expert, Dr. M. Eric

Gershwin opined Petitioner’s Bell’s palsy is permanent. Id. (citing Pet. Ex. 6 at 3). Petitioner’s

primary care physician Dr. Depner found Petitioner was “near the point of maximum medical

improvement” during a visit on May 25, 2016. Id. (quoting Pet. Ex. 3 at 34). Over one year

later, on July 11, 2017, Dr. Depner noted Petitioner’s Bell’s palsy “ha[d] improved quite slowly

but [was] still quite marked. . . . He [could] close his right eye, but not tightly.” Id. (quoting Pet.

Ex. 26 at 19). Dr. Depner indicated Petitioner was not likely to improve further. Id. at 7-8

(citing Pet. Ex. 26 at 19). And at a recent visit on February 24, 2023, physical examination

demonstrated ongoing right peripheral facial weakness likely right Bell’s palsy. Id. at 8 (citing

Pet. Ex. 68 at 20, 23).

Lastly, for severity of Petitioner’s injury, Petitioner contends his pain, suffering, distress,

and disfigurement are significant. Pet. Br. at 8. He filed photographs, pre- and post-vaccination,

showing the effects of his Bell’s palsy. Id. (citing Pet. Exs. 41-46, 60-61). Petitioner notes his

treatment consisted of an eye patch, Prednisone, Famvir, physical therapy, and home

exercise/massage. Id. Petitioner continues to have right-sided numbness and loss of sensation

around his right side of his mouth, he does daily facial exercises to prevent tension and pain in

his face, and certain lighting conditions cause his eye to water. Id. (citing Pet. Ex. 64). He is

fearful of not passing the DOT physical test, which is required for his employment. Id. (citing

Pet. Ex. 64). Additionally, Petitioner contends he is no longer able “to enjoy working with his

hands.” Id. at 9. Prior to developing Bell’s palsy, “he built his house and enjoyed repairing and

maintaining the house, appliances, equipment, and vehicles.” Id. However, his eye now waters

when working with small items like screws and bolts, “which is annoying and takes away the joy

that he experienced.” Id. (citing Pet. Exs. 64-65).

In response to Respondent’s arguments regarding the severity of Petitioner’s injury,

Petitioner first argues he continues to have psychological symptoms, not psychiatric symptoms,

following the development of Bell’s palsy. Pet. Reply Br. at 2. Second, Petitioner notes his

medical records document pain and numbness from his Bell’s palsy, despite Respondent’s

contentions. Id. at 3 (citing Pet. Ex. 3 at 18; Pet. Ex. 4 at 44; Pet. Ex. 68 at 17).

Third, although Dr. Depner described Petitioner’s facial expression as “pleasant,”

Petitioner argues “[l]ittle weight should be given to these notations” because (1) “Dr. Depner

noted a pleasant facial expression at every visit, including [Petitioner’s] initial presentation for

8

Bell’s palsy on November 5, 2015,” and (2) medical professionals have explained the difficulties

those with facial paralysis face in how they are perceived by others. Pet. Reply Br. at 2-3; see

also Pet. Br. at 8 (describing the tremendous “psychological burden of facial paralysis” (quoting

Pet. Ex. 8 at 3)). 11

Lastly, Petitioner notes it “may be true” that evidence was not submitted to support a

finding that Petitioner’s ability to maintain employment has been impacted by his Bell’s palsy,

however, Petitioner argues “it does not negate the distress [Petitioner] experiences for fear of

losing his job due to his Bell’s palsy.” Pet. Reply. Br. at 3. “In fact, [R]espondent acknowledges

that it is reasonable for [Petitioner] to experience fear of losing his job due to his Bell’s palsy.”

Id. (citing Resp. Br. at 7-8). And Petitioner’s diminished vision on DOT examinations “likely

contributes to that fear.” Id. (citing Pet. Ex. 62 at 3, 7).

Therefore, Petitioner requests $175,000.00 for his past and future pain, suffering, distress,

and disfigurement given his level of treatment, permanent nature of his injury, and the duration

of his injury for his life expectancy. Pet. Br. at 9; Pet. Reply Br. at 4.

2. Respondent’s Contentions

Respondent argues that based on the facts of this case, Petitioner should be awarded

$75,000.00 for pain and suffering. Resp. Br. at 6.

First, Respondent contends “there are no complaints of impaired relationships, social

distress, or depression[] noted in any of his medical records during the nearly eight years that

have passed since the onset of his condition.” Resp. Br. at 7. Nor has Petitioner been diagnosed

or treated for a psychological consequence of his injury. Id. Respondent notes Petitioner

repeatedly denied psychological symptoms. Id. (citing, e.g., Pet. Ex. 3 at 18, 21, 24, 27, 32; Pet.

Ex. 26 at 1, 5, 10, 14, 17; Pet. Ex. 49 at 3, 7, 16, 22). “[P]etitioner was noted to be calm and

cooperative with a normal mood and affect.” Id. Additionally, Dr. Depner repeatedly described

Petitioner “as having a ‘pleasant’ facial expression, and his photographs depict the same.” Id.

Thus, Respondent concludes that “while some patients with facial paralysis may experience

significant psychological distress, there is no evidence in the record to suggest that [P]etitioner

did so.” Id.

Respondent argues that the only psychological distress described by Petitioner concerns

his alleged fear of losing his job. Resp. Br. at 7. Respondent notes that Petitioner continued to

pass his DOT tests and “there is no evidence that would suggest that [P]etitioner’s facial

paralysis impairs his ability to drive a truck in any meaningful way.” Id. Respondent contends

“[P]etitioner’s untreated sleep apnea [] causes him to fall asleep behind the wheel, [and] that

poses a significant risk to [P]etitioner’s continued employment and likely resulted in his

suspension from work in 2018.” Id. at 7-8. “Thus, while [P]etitioner’s fear may be reasonable,”

Respondent stressed there is no evidence in the record to “support the claim that [P]etitioner’s

11

Reginald F. Baugh et al., Clinical Practice Guideline: Bell’s Palsy Executive Summary, 149

Otolaryngology & Neck Surgery 656 (2013).

9

ability to maintain employment as a truck driver has been, or likely will be, impacted by his

Bell’s palsy.” Id. at 8.

Next, Respondent argues that there is no evidence to support Petitioner’s complaints of

right-sided facial pain and numbness since vaccination as well as diminished eyesight in his right

eye between 2019 and 2023. Resp. Br. at 8. For support, Respondent cites to a neurology

appointment with Dr. Vivino on February 24, 2023, where “Petitioner reported that he began

experiencing painful muscle spasms on the right side of his face six months prior, placing the

onset of his facial pain around late-August 2022, or nearly six years post-vaccination.” Id.

(citing Pet. Ex. 68 at 17). Dr. Vivino also opined these muscle spasms were unrelated to

Petitioner’s facial paralysis. Id. (citing Pet. Ex. 68 at 23). Thus, given the onset of Petitioner’s

facial pain in 2022, nearly six years post-vaccination, and the opinion of Petitioner’s treating

neurologist, Respondent maintained Petitioner’s facial pain is unrelated to his vaccine injury. Id.

at 8-9.

With regard to Petitioner’s complaints of facial numbness, Respondent cites to Dr.

Vivino’s finding of intact facial sensation 12 on February 24, 2023. Resp. Br. at 8 (citing Pet. Ex.

68 at 20,23). Respondent argues Petitioner’s complaint of facial numbness is subjective,

contradicted by objective test results, and not supported by any evidence. Id.

Similarly, Respondent finds no evidence to support Petitioner’s claim that the decline in

his vision from 2019 to 2023 is due to his Bell’s palsy. Resp. Br. at 9. No medical provider or

expert has opined that they are causally related. Id. And thus, there is no basis to conclude that

Petitioner’s declining eyesight is related to his vaccination or Bell’s palsy. Id.

Lastly, Respondent finds Petitioner’s reliance on a review of jury verdicts to be

“speculative at best,” as the review reported only mean and median award, did not to explain

what kind of damages were included in these awards, and did not provide information about the

severity of the injuries involved. Resp. Br. at 9.

Overall, Respondent maintains a pain and suffering award of $75,000.00 is fair and

adequate given mild nature of Petitioner’s pain and suffering, Petitioner’s awareness of injury,

and the permanent nature of his injury. Resp. Br. at 10. “[Petitioner’s] alleged disfigurement is .

. . exceedingly mild.” Id. Petitioner’s treatment was minimal and consisted of prescribed

medications and at-home exercises. Id. (citing Pet. Ex. 3 at 20, 26). He was not hospitalized.

Id. He did not undergo invasive treatments or procedures. Id. Although Petitioner’s facial

paralysis remains, he was able to return to work without restrictions within one week of onset.

Id. (citing Pet. Ex. 3 at 26, 31). Within six months, he was able to blink, drink, and use a straw.

Id. (citing Pet. Ex. 3 at 34). Dr. Vivino, in February 2023, found Petitioner’s forehead and lips

appeared symmetric at rest and even with muscle activation asymmetry of the forehead could not

be appreciated. Id. (citing Pet. Ex. 68 at 20). Dr. Vivino also noted Petitioner was able to close

12

This finding of intact facial sensation related to the neurological examination of Petitioner’s

fifth cranial nerve. Pet. Ex. 68 at 20. Petitioner’s seventh cranial nerve was affected. See Pet.

Ex. 3 at 19-20.

10

his eyes but not bury his lashes on the right side, Petitioner’s sensation was intact, and

Petitioner’s field of vision was full bilaterally. Id. (citing Pet. Ex. 68 at 20).

B. Unreimbursable Expenses

Petitioner requests $169.96 13 in unreimbursable expenses, consisting of prescription

medications ($10.26), doctor’s office visits ($100.00), and mileage ($59.70). Pet. Br. at 14-16;

Pet. Reply Br. at 4. Only the amount for mileage is in dispute. See Resp. Br. at 11 (“Respondent

agrees that [P]etitioner’s claims for $10.26 for prescription medications[] and $100.00 for

doctor’s visits[] are supported by documentation.”). For mileage, Petitioner requests $59.70 and

Respondent agrees to only $16.31. Pet. Br. at 11-16; Resp. Br. at 11-19. There are two main

disputes that explain the monetary difference for mileage.

The first dispute concerns mileage requests on November 5, 2015 and December 14,

2015. Pet. Reply Br. at 4; Resp. Br. at 11-13. Petitioner requests two round trip visits on

November 5, 2015 (from his home to his primary care physician and from his home to his

pharmacy) and two round trip visits on December 14, 2015 (from his home to his primary care

physician and from his home to Jones Memorial Hospital for blood work), which Respondent

disputes. Pet. Br. at 14-15; Pet. Reply Br. at 4; Resp. Br. at 11-13. Respondent notes the visits

on the same day were to locations close in proximity (0.7 miles and 0.3 miles) to one another.

Resp. Br. at 11-13. Respondent argues Petitioner went to these appointments back-to-back before

driving home and did not drive home between the visits. See id. at 11-13, 17-19. Petitioner

contends Respondent’s argument is “without merit” because “[i]t is reasonable to infer that

[Petitioner] had to make separate trips for these visits.” Pet. Reply Br. at 4. Petitioner did not

address these mileage disputes in his affidavit, nor did he provide any other evidence to show

that he drove home between his visits on the same day. See id.; Pet. Ex. 64.

The second mileage-related dispute concerns the appropriate rate for calculating mileage;

Petitioner contends the appropriate rate for calculating mileage is the IRS business rate, while

Respondent argues the appropriate rate to apply is the IRS medical rate. Pet. Br. at 11; Resp. Br.

at 13. According to Petitioner, the IRS business mileage rate for 2015 is 0.575, 2016 is 0.54, and

2017 is 0.54. Pet. Br. at 11. Both parties cited and discussed cases that applied the IRS business

rate to mileage. Pet. Br. at 1; Resp. Br. at 13-16; Pet. Reply Br. at 4-6; see Williams v. Sec’y of

Health & Hum. Servs., No. 90-2239V, 1996 WL 608455 (Fed. Cl. Spec. Mstr. Oct. 10, 1996);

Gibson v. Sec’y of Health & Hum. Servs., No. 20-0243V, 2022 WL 17820891 (Fed. Cl. Spec.

Mstr. Nov. 16, 2022); Ashe-Robinson v. Sec’y of Health & Hum. Servs., No. 94-1096V, 1997

WL 53450 (Fed. Cl. Spec. Mstr. Jan. 23, 1997).

Respondent argues that although special masters have used the IRS business rate since

Williams in 1996, those decisions are not precedential or binding on this case. Resp. Br. at 13-

14 (citing Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998), aff’d, 191 F.3d

1344 (Fed. Cir. 1999)). “Respondent urges the court to diverge from Williams and apply the

13

Petitioner originally requested $264.68 in unreimbursable expenses, but reduced the amount to

$169.96 after removing a request for $94.72 for a consultation between Petitioner and his

attorney. See Pet. Br. at 10-18; Pet. Reply Br. at 4-6.

11

medical rate, which is the appropriate rate to reimburse [P]etitioner for his vaccine injury-related

travel expenses.” Id. at 14.

Respondent asserts “[t]he reasoning articulated in Williams is flawed.” Resp. Br. at 14.

The IRS business rate includes fixed costs (depreciation, maintenance, repairs, tires, insurance,

and registration fees of the vehicle) and operating expenses (gas and oil), while the IRS medical

rate includes only operating expenses. Id. at 14-15; Pet. Reply Br. at 5. Respondent finds the

medical rate to be more appropriate, contradicting the reasoning in Williams, where the special

master analyzed this issue and found the business rate appropriate. Resp. Br. at 15 (citing

Williams, 1996 WL 608455, at *1-2). Respondent also reasons that the Vaccine Act provides

compensation for “actual” expenses that have “resulted from” the vaccine injury, and fixed costs

included in the IRS business rate “do not ‘result from’ the vaccine injury.” Id. at 15-16.

Respondent maintains the IRS medical mileage rate “adequately compensates [P]etitioner for the

actual expenses that resulted from his injury.” Id. at 16. In response, Petitioner, citing Williams,

explains that “the medical rate does not adequately measure the actual cost to a petitioner of the

injury, because it does not encompass the full cost of driving an automobile (i.e., depreciation,

maintenance, repairs, tires, and insurance).” Pet. Reply Br. at 6 (citing Williams, 1996 WL

608455, at *2).

Further, Respondent notes the Vaccine Act provides awards for items that are

“reasonably necessary,” which Respondent argues was not addressed in Williams. Resp. Br. at

16. “[W]hile the Act specifies that [P]etitioner is entitled to reimbursement for his travel

expenses, it does not require that reimbursement must be ‘optimized’ to the highest available

rate, particularly when the underlying medical care for which travel is being reimbursed is

subject to a ‘reasonable’ standard.” Id. Petitioner argues that “[t]he fact that the business rate is

higher than the medical rate does not make it unreasonable, and the court in Williams provided a

well-reasoned analysis as to why the fixed and operating expenses would be reasonable and

necessary to include in the actual costs to a petitioner.” Pet. Reply Br. at 6 (citing Williams,

1996 WL 608455, at *1-2).

IV. LEGAL FRAMEWORK

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, Petitioner may recover “actual unreimbursable

expenses incurred before the date of judgment,” including those that “(i) resulted from the

vaccine-related injury for which [P]etitioner seeks compensation, (ii) were incurred by or on

behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other

remedial care, rehabilitation . . . related travel expenses, and facilities 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 of Health & Hum. Servs., No. 93-0092V,

1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).

12

A. Pain and Suffering

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 & Hum. 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 &

Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996)

(“[T]he assessment of pain and suffering is inherently a subjective evaluation.”). Factors to be

considered when determining an award for pain and suffering include: (i) awareness of the

injury; (ii) severity of the injury; and (iii) duration of the suffering. I.D., 2013 WL 2448125, at

*9 (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 & remanded on other grounds, 70 F.3d 1240

(Fed. Cir. 1995)).

The undersigned may look to prior pain and suffering awards to aid in the resolution of

the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.

Sec’y of Health & Hum. 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”).

The undersigned may also rely on her experience adjudicating similar claims. Hodges v. Sec’y

of Health & Hum. 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, however, it must also be stressed that pain and

suffering is not determined based on a continuum. See Graves v. Sec’y of Health & Hum.

Servs., 109 Fed. Cl. 579 (2013).

In Graves, Judge Merow 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. Judge Merow noted that this constituted “the forcing of all suffering awards

into a global comparative scale in which the individual petitioner’s suffering is compared to the

most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 589-90. Instead, Judge

Merow 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.

B. Unreimbursable Expenses: Mileage

Under the Vaccine Act, petitioners are awarded compensation for “actual unreimbursable

expenses” that “resulted from the vaccine-related injury,” “were incurred by or on behalf of the

[injured] person,” and “were for diagnosis, medical or other remedial care, rehabilitation, . . .

related travel expenses, and facilities determined to be reasonably necessary.” § 15(a)(1)(B).

Petitioners are reimbursed for their mileage if they “provide[] sufficient documentation that

[Petitioner] personally incurred the travel expenses in [their] own vehicle and in relation to the

vaccine injury.” See Gibson, 2022 WL 17820891, at *13 n.27.

13

Petitioners must provide preponderant evidence to substantiate “related travel expenses”

incurred as a result of related medical care. § 15; Brewer, 1996 WL 147722, at *22-23.

Petitioners can meet this burden of proof by itemizing the dates and distances of their medical

visits through sworn testimony and evidence. Williams, 1996 WL 608455, at *1. However,

mileage costs are not compensated where ownership of the vehicle, distance travelled, or primary

purpose of the travel are questionable or unclear. See Ashe-Robinson, 1997 WL 53450, at *2

(denying mileage costs to a petitioner when she did not drive her own car or drove for medical

issues “not causally related” to her vaccine-related injury); Morgan v. Sec’y of Health & Hum.

Servs., No. 20-1286V, 2022 WL 4717958, at *8 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (denying

mileage costs to an undergraduate student when it was unclear if his trips had a secondary

purpose of returning to school).

Special masters have found the IRS business mileage rate as appropriate for calculating

travel expenses. See, e.g., Williams, 1996 WL 608455, at *2. The business rate “is intended to

cover all costs of driving a car,” including fixed costs “meant to offset the costs of depreciation,

maintenance, repairs, tires, insurance, and registration fees.” 14 Id. at *2 (emphasis omitted)

(citing I.R.C. § 162). In contrast, the IRS medical rate only covers the variable costs of gas and

oil. Id. (citing I.R.C. § 213). The Vaccine Act awards compensation for “related travel expenses

. . . determined to be reasonably necessary.” § 15(a)(1)(B). The special master in Williams

explained that “[t]he most straightforward interpretation of the language of the statute [] is that

any ‘unreimbursable’ expense, which would not have been incurred ‘but for’ the vaccine-related

injury, qualifies under [the Vaccine Act].” Williams, 1996 WL 608455, at *1 (emphasis

omitted). When petitioners travel for their vaccine-related injury, they incur both variable costs,

like gas, and fixed costs, including higher insurance rates for the miles driven and deterioration

of the vehicle. Id. at *1-2. Other special masters have repeatedly concurred with this analysis

and used the business rate to reimburse a petitioner for mileage. See, e.g., Ashe-Robinson, 1997

WL 54350, at *2; Gibson, 2022 WL 17820891, at *12; Kleinschmidt v. Sec’y of Health & Hum.

Servs., No. 20-0680V, 2023 WL 9119039, at *7 (Fed. Cl. Spec. Mstr. Dec. 5, 2023).

V. ANALYSIS

A. Petitioner’s Award for Actual Pain and Suffering

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. The

undersigned has reviewed the entire record, including medical records, declarations, expert

reports, and all other evidence that has been filed, and finds an award of $100,000.00 in actual

pain and suffering is fair, reasonable, and appropriate here.

14

The special master in Williams also found that registration costs constitute a “very, very

minimal part of the ‘fixed costs’ formula.” Williams, 1996 WL 608455, at *2 n.2. Such de

minimis costs do not impact the reimbursement analysis.

14

It is appropriate to consider the severity of the injury, awareness of the injury, and

duration of the suffering when determining an award for pain and suffering and emotional

distress. In the undersigned’s experience, awareness of suffering is not typically a disputed issue

in cases involving Bell’s palsy. In this case, neither party has raised, nor is the undersigned

aware of, any issue concerning Petitioner’s awareness of suffering. Pet. Br. at 7; Resp. Br. at 10.

Thus, based on the circumstances of this case, the undersigned determines Petitioner’s awareness

of the injury is not in dispute and he has full awareness of his suffering.

The factors that particularly influence this Ruling are as follows. Regarding duration, the

injury occurred in November 2015 and Petitioner has been experiencing residual effects since.

Thus, Petitioner has experienced the effects of his vaccine-related injury for over 8 years.

Regarding severity, three sets of facts influence the undersigned’s analysis: the initial

course of the injury, the most recent examination reflecting the residual effects of the injury, and

the Petitioner’s affidavit describing how the injury has affected him.

First, Petitioner’s initial examination showed that Petitioner had a right seventh nerve

paresis. In follow up visits over the next few weeks, Petitioner was unable to raise his eyebrow

and had weakness and difficulty in closing the eyelid. He also had tearing and blurriness of his

affected eye. Next, a physical therapy evaluation in December 2015 noted Petitioner’s drooped

brow, his inability to close his eye completely, and his inability to drink from a cup. After six

months, a physical therapist documented that Petitioner’s level of function was back to 90%.

However, the physical therapist rated Petitioner’s facial disability as a 45 out of 100 and under

the Facial Grading System he received a composite score of 13 out of 100. 15 Pet. Ex. 4 at 45.

Petitioner required eye protection at work and had difficulty with hand-eye coordination and

drinking liquids. Petitioner also continued to struggle with blurred vision, light sensitivity, and

an inability to completely close his eyelid. Moving forward to July 2017, almost two years later,

a physician’s note stated that Petitioner’s Bell’s palsy was “still quite marked.” Pet. Ex. 26 at 19.

Second, a more recent neurology examination in February 2023 revealed that Petitioner’s

right peripheral facial weakness continued. The neurologist documented Petitioner was unable

to fully open and close his right eye, the palpebral of the right eye was smaller than the left eye

and “decreased contraction of the dilator muscles of the lips on the right side.” Pet. Ex. 68 at 20.

While Petitioner reported that he had decreased inferolateral vision, this “[visual field] defect

was not confirmed on [visual field] testing with careful confrontation techniques using CF.” Id.

at 23.

15

The Facial Grading System (“FGS”) is a “standardized measure of facial impairment.”

Jennifer S. Brach & Jessie M. VanSwearingen, Physical Therapy for Facial Paralysis: A Tailored

Treatment Approach, 79 Physical Therapy & Rehabilitation J. 397 (1999),

https://academic.oup.com/ptj/article/79/4/397/2857760. FGS uses an “observer-based rating

scale” that evaluates resting posture, voluntary movement, and synkinesis. Id. These respective

ratings are combined to form an FGS score that ranges from 0 (complete paralysis) to 100

(normal facial function). Id.

15

Third, the undersigned considers Petitioner’s affidavit explaining the effects of his injury.

Before his injury, Petitioner “enjoyed working with [his] hands. [He] built [his] house . . . and

enjoyed repairing and maintaining the house, appliances, equipment, automobiles, and

motorcycles.” Pet. Ex. 64 at ¶ 3. Petitioner averred that he is “not able to enjoy working with

[his] hands like [he] did before Bell’s palsy.” Id. at ¶ 9. He explained that “[w]hen [he] [is]

working with small items like screws or bolts[,] [his] eye waters, which is annoying and takes

away the joy that [he] experienced.” Id. Petitioner continues to experience numbness and loss of

sensation on the right side of his face. Id. at ¶ 10. Petitioner must do facial exercises multiple

times per day to prevent moderate pain from recurring. Id. He remains unable to raise his right

eyebrow. Id. Petitioner must pass a DOT physical test to maintain his employment. Id. He

fears that his permanent injury could lead him to fail the test, which includes a vision assessment.

Id. While Petitioner has recently passed the test, the risk of a future test failure and “losing his

source of income causes [him] great stress.” Id.

The jury verdict information provided by Petitioner is inadequate to form any basis for

comparison for several reasons. The largest category of cases cited by Petitioner are negligence

cases against medical providers for alleged failure to provide either informed consent or surgical

misadventures that resulted in bad outcomes. See Pet. Br. at 7; Pet. Ex. 69 at 3. In such

negligence cases, fault is at issue. For example, a surgeon could be found negligent for failing to

properly inform a patient of the risks of nerve injury and failing to adhere to the standard of care

in performing the procedure. The facts in evidence to show a violation in the standard of care, in

order to find a surgeon liable for negligence, reflect poorly on the defendant. Such negative

evidence can raise the value of damages in a jury verdict. However, negligence is not at issue

under the Vaccine Act. No such facts regarding negligence exist or bear any relevance to this

case.

Further, most of the cases cited involved otologic and cosmetic surgery. These cases do

not explain the types of injuries to the seventh cranial nerve. Moreover, since these were mostly

surgical cases, the injuries presumably resulted from cutting the nerve, transecting the nerve

completely, or some other physical injury to it. This physical mechanism of injury differs from

the type of injury in this case, which the undersigned found an innate immune system and

inflammatory response to the vaccination. See Ruling on Entitlement at 37. Regardless, there

are no facts about the types of injuries sustained in the jury verdict publications to allow any

meaningful comparison with the facts in the present case.

The undersigned has considered the numbers proposed by both parties; however, she

does not agree that the amount suggested by either party is appropriate. Considering the record

as a whole, the undersigned finds that $100,000.00 represents a fair, reasonable, and appropriate

amount of compensation for Petitioner’s pain and suffering. The undersigned recognizes that

Petitioner continues to suffer from Bell’s palsy after more than eight years. The award of

$100,000.00 acknowledges Petitioner’s long duration of suffering, his worry about job security,

and his facial disability.

16

B. Award for Past Unreimbursed Expenses

The parties agree Petitioner should be reimbursed for prescription medications ($10.26)

and doctor’s office visits ($100.00). Pet. Br. at 14-16; Resp. Br. at 11. However, they dispute

the appropriate cost for mileage, with Petitioner requesting $59.70 and Respondent agreeing to

only $16.31. Pet. Br. at 11-16; Resp. Br. at 11-19.

The first dispute concerns whether Petitioner made separate round-trip visits to two

locations in close proximity to each other on two dates. First, on November 5, 2015, Petitioner

argues in his brief that he drove round trip from his home to his primary care physician, and then

later drove round trip from his home to the pharmacy. However, as Respondent contends, the

primary care physician’s office and the pharmacy are separated by 0.7 miles. Resp. Br. at 11-12.

Petitioner also maintains that on December 14, 2015, he drove round trip from his home to his

primary care physician, and then later drove round trip from his home to Jones Memorial

Hospital. Again, Respondent noted the physician’s office and the hospital are separated by 0.3

miles. Id. at 12-13. Respondent maintains that Petitioner went to these appointments back-to-

back and did not drive home between the visits. Petitioner contends that Respondent’s argument

is “without merit” because “[i]t is reasonable to infer that [Petitioner] had to make separate trips

for these visits.” Pet. Reply Br. at 4.

Given the close proximity of the locations, the undersigned finds the Respondent’s

arguments more persuasive. It is more reasonable to infer that Petitioner attended the visits

consecutively before returning home and did not return home between the visits on both dates.

Mileage is compensated when a petitioner has “provided sufficient documentation that

[petitioner] personally incurred the travel expenses in [his] own vehicle and in relation to the

vaccine injury.” See Gibson, 2022 WL 17820891, at *13 n.27. Here, Petitioner did not submit

any evidence to show that he made separate trips for these visits. Without evidence, the

undersigned cannot conclude that it would be appropriate to award the mileage on these days as

Petitioner requests. See Morgan, 2022 WL 4717958, at *8 (denying mileage costs to an

undergraduate student when it was unclear if his trips had a secondary purpose of returning to

school); Ashe-Robinson, 1997 WL 54350, at *3 (denying mileage costs to a petitioner when she

did not drive her own car or drove for medical issues “not causally related” to her vaccine-related

injury). This results in a reduction of 19.8 miles in 2015. See Resp. Br. at 11-13.

Regarding the dispute over the appropriate IRS mileage rate to use, the undersigned finds

Petitioner’s arguments more persuasive. Respondent has failed to provide any persuasive

reasoning to diverge from the settled practice of using the IRS business rate. Using the business

rate covers all the costs of driving a car that Petitioner would not have incurred but-for his

vaccine-related injury. See Williams, 1996 WL 608455, at *2; Kleinschmidt, 2023 WL

9119039, at *7. Such compensation does not constitute an elective preference for an

“optimized” rate. See Resp. Br. at 16. Rather, the compensation accurately reimburses

Petitioner for the total and “reasonably necessary” costs of his care related to his vaccine injury.

§ 15.

17

For the reasons discussed above, the undersigned awards Petitioner for $48.27 mileage

based on the business mileage rates of 0.575 for 2015 16 and 0.54 for 2016. 17 The total amount of

unreimbursable expenses awarded is $158.53. 18

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 the above analysis, and in consideration of the record as a whole, the

undersigned finds that Petitioner should be awarded (1) $100,000.00 for pain and suffering and

(2) $158.53 for past unreimbursed expenses, for a total of $100,158.53.

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

16

93.8 miles – 19.8 miles = 74 miles. 74 miles x 0.575 = $42.55.

17

10.6 miles x 0.54 = $5.72.

18

$42.55 + $5.72 + $10.26 + $100.00 = $158.53.

18

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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