# Davis v. Secretary of Health and Human Services

> United States Court of Federal Claims · January 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10736465

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** January 17, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas L. Gowen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 21, 2023

* * * * * * * * * * * * * PUBLISHED
MARK V. DAVIS, *
* No. 16-276V
Petitioner, *
* Special Master Gowen
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Michael P. Milmoe, Law Offices of Leah V. Durant, LLC, Washington, D.C., for petitioner
Julia M. Collison, United States Department of Justice, Washington, D.C., for respondent.

DECISION ON DAMAGES 1

A damages hearing was held in the above-captioned matter on October 30, 2023. At the
conclusion of the hearing, the undersigned issued a ruling from the bench resolving all categories
of damages and awarding petitioner $1,036,017.00 in past lost wages and $250,000.00 in pain
and suffering. Transcript (“Tr.”) at 120, 122 (ECF No. 166). This opinion memorializes and
provides further explanation for such decision.

I. Procedural and Factual History

The Ruling on Entitlement provides a thorough procedural history leading up to the
entitlement hearing, held on January 17 and 18, 2019. Davis v. Sec’y of Health & Human Servs.,
No. 16-276V, 2021 WL 3910609, at *2–3 (Fed. Cl. Spec. Mstr. Dec. July 23, 2021). It also
provides a thorough factual history and summary of the evidence submitted during the
Entitlement phase of this case. Id. at *28-29. Both histories are incorporated fully herewith and
will not be repeated. Following the hearing, the parties engaged in settlement negotiations, but
eventually reached an impasse, and requested that the case be referred to mediation. Joint Status
Report at 1 (ECF No. 84); Joint Status Report at 1 (ECF No. 87); Order Referring Case to ADR
(ECF No. 88). After an unsuccessful mediation on November 19, 2019, the parties requested that
the case be placed back in litigation, and both parties filed post-hearing briefs. Joint Status

1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned
intends to post this decision on the website of the United States Court of Federal Claims, with the E-Government
Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that include medical files or similar files, the disclosure of which would constitute a
clearly unwarranted invasion of privacy.” Vaccine Rule 18 (b).
Report at 1 (ECF No. 90); Pet. Post-Hearing Brief (ECF No. 101); Resp. Post-Hearing Brief
(ECF No. 103).

A Ruling on Entitlement finding that petitioner was entitled to compensation was issued
on July 23, 2021. Davis, 2021 WL at *28-29. In that ruling, I found that petitioner’s brachial
neuritis was caused by the tetanus-diphtheria vaccine administered to him on September 20,
2013, and that his compensable injuries are limited to the upper extremity nerve plexus injuries
to the interosseous nerve and the long thoracic nerve. Id. Thereafter, the parties re-engaged in
settlement negotiations but were unable to resolve the case informally. See Joint Status Report at
1 (ECF No. 120). Petitioner filed his damages brief on August 1, 2022, and respondent filed a
responsive damages brief on November 15, 2022. Pet. Damages Brief (ECF No. 129); Resp.
Damages Brief (ECF No. 134). Petitioner filed a reply brief on March 23, 2023. Pet. Reply Brief
on Damages (ECF No. 141).

Both parties filed multiple economic expert reports on the issue of lost wages.
Respondent submitted reports from Patrick Kennedy, Ph.D. on November 15, 2022, July 18,
2023, and October 27, 2023. Respondent’s Exhibit (“Resp. Ex.”) K (ECF No. 135); Resp. Ex. L
(ECF No. 153); Resp. Ex. M (ECF No.161). Petitioner submitted reports from Robert Cook,
Ph.D. on March 23, 2023, July 3, 2023, and October 13, 2023. Pet. Ex. 66 (ECF No. 140); Pet.
Ex. 76 (ECF No. 150); Pet. Ex. 80 (ECF No. 157). After the initial expert reports were filed, a
recorded telephonic status conference was held on August 1, 2023, with the parties and both
economist experts participating. See Hearing Order (ECF No. 154). A damages hearing was held
on October 30, 2023, and I issued a bench ruling on damages at the conclusion of the
proceedings, awarding petitioner $1,039,017.00 in past lost wages and $250,000.00 in past pain
and suffering. Tr. at 119–22. Additional facts particularly relevant to the damages issues are
included in the discussion below.

II. Discussion

A. Lost Wages

The Vaccine Act provides that compensation for loss of earnings, including actual loss of
earnings, should be “determined in accordance with generally recognized actuarial principles and
projections.” 42 U.S.C. § 300aa–15(a)(3)(A). While the Federal Circuit has not interpreted what
qualifies as “generally recognized actuarial principles and projections,” the Court of Federal
Claims has recognized in the broader context that “the determination of compensation for lost
earnings . . . would likely require expert opinion evidence.” Dillenbeck v. Sec’y of Health &
Human Servs., 147 Fed. Cl. 131, 139 (2020).

Both parties submitted multiple expert reports from economists on the issue of lost
wages. The economists disagreed on petitioner’s work-life expectancy, the wage base used to
calculate lost wages, and whether to include the $65,067.00 capital loss from the sale of
petitioner’s dental practice in lost earnings.

2
i. Wage Base

Petitioner’s expert, Dr. Cook, utilized wage data from petitioner’s dental practice from
2006 – 2013 to calculate a base income of $196,704.00 per year. Respondent’s expert, Dr.
Kennedy, utilized wage data from petitioner’s dental practice from 2009 – 2013 to calculate a
base income of $139,692.00 per year. As noted in a prior Order, petitioner’s income from his
dental practice was significantly higher from 2006 – 2008. Scheduling Order at 4 (ECF No. 146).
There was no additional testimony from petitioner as to why his income was higher during these
years such that the higher income from the earlier years should be considered in his base
income. As such, I conclude that Dr. Kennedy’s base income of $139,692.00 per year based on
petitioner’s income in the five years preceding his vaccination is the appropriate wage base to
calculate past lost wages, as it reflects a sufficient period of time and the most recent period of
petitioner’s career. It is the wage base I used in awarding petitioner $1,036,017.00 in lost wages.
Tr. at 120.

ii. Work-life Expectancy

As to petitioner’s work-life expectancy, Dr. Cook opined that petitioner would have
worked until age 80. Pet. Ex. 66 at 6. Though Dr. Cook admits that “the generally accepted
methodology . . . is to calculate future lost wages using a claimant’s statistical work life,” he
notes that there are exceptions to this rule “such as when a claimant has already worked past his
typical statistical work life.” Id. at 7. Dr. Cook noted that petitioner had worked past the typical
statistical work life for dentists, and provided statistical support indicating that dentists working
past their typical work life expectancy are likely to work “many more years than the mean.” Id.
Using these statistics, and “the multiple testaments to [petitioner’s] ability and intent to work
until age 80 and beyond,” Dr. Cook calculated lost wages until petitioner’s 80th birthday. Id. at
7-8. Dr. Kennedy disagreed with this approach, and calculated petitioner’s statistical work life
expectancy to age 76.80. Resp. Ex. K at 3. After a preliminary indication that petitioner’s intent
to continue working beyond the statistical work life expectancy was reasonable, I requested that
Dr. Kennedy provide an additional wage loss calculation to petitioner’s age 80. Scheduling
Order at 4 (ECF No. 146). Dr. Kennedy provided such calculation in a supplemental report,
opining that petitioner’s lost wages to age 80 were $1,036,017.00 Resp. Ex. L at 1.

I found credible Dr. Davis’s testimony that he intended to continue working for the rest
of his life. See Tr. at 17. He explained the specialized skill required for dental implant surgery
which he had developed and provided affidavits from colleagues in the field indicating his likely
longevity in dental practice. See Tr. at 20-21. Based on petitioner’s testimony at both the
entitlement hearing and damages hearing, petitioner’s medical records prior to the vaccination
supporting his ability and intent to practice dentistry for as long as he could, and affidavits from
the petitioner, petitioner’s primary care physician, and a colleague all attesting to petitioner’s
intent to work for as long as possible, I determined that petitioner likely would have worked until
his 80th birthday absent the vaccine injury. Id. at 120.

At the hearing, respondent’s counsel attempted to establish that petitioner’s retirement
was related to a myocardial infarction he suffered in 2013 and ongoing congestive heart failure,
as opposed to his vaccine injury. See id. at 80-81. However, petitioner testified that he made a

3
full recovery from the myocardial infarction within approximately six months to a year. Id. at 61.
Petitioner also submitted letters from his family doctor, Thomas Austin, M.D. and his
cardiologist Bernardo Stein, M.D. attesting to his fitness to continue in dentistry. Pet. Ex. 63; Pet.
Ex. 68. Dr. Stein explained that petitioner had suffered a serious myocardial infarction with a
100% occlusion of the left descending coronary artery, but that he had been aggressively treated
and had a good recovery within a matter of a few months. Pet. Ex. 63 at 1. Based on petitioner’s
testimony about his recovery from the myocardial infarction and the explanation from his
physicians, it is reasonable to conclude that his cardiac event did not affect his ability to practice
dentistry and that, consistent with his testimony, he would have continued working absent his
vaccine-related brachial neuritis.

iii. Interest on Business Loans

In his written commentary following the recorded status conference on August 1, 2023,
Dr. Cook, for the first time, raised an additional issue regarding petitioner’s lost wages. Dr. Cook
opined that an average of approximately $32,000.00 in interest payments on the outstanding
business loan from 2009-2013 should be added back into petitioner’s wage base because the
loans were repaid in 2016. 2 Pet. Ex. 80 at 1; Pet. Ex. 81 at 1. The essence of Dr. Cook’s
argument was that, but for the ongoing payments on business debt during the years used to
calculate petitioner’s wage base, petitioner’s income would have been approximately $32,000.00
higher per year. Pet. Ex. 80 at 1. Thus, Dr. Cook suggested that, using the interest payment data,
petitioner’s income would have been higher in the years following the payoff of the loans. Id.

Petitioner testified that he opened a new dental practice in 2006, which cost a total of
$950,000.00. Tr. at 10. The cost was financed through three loans for $500,000.00, $180,000.00,
and $140,000.00, and through his personal investments. Id. According to the testimony at the
hearing, at the time of petitioner’s injury, the two smaller loans were satisfied, and he was
making payments only on the $500,000.00 loan. Id. at 105. Respondent, using a printout of the
amortization of the outstanding loan with Nicolet Bank, established that petitioner’s interest
payments on that loan in 2013 and 2014 were $7,245.38 and $7,406.24 respectively. See id. at
103-04; Pet. Ex. 58 at 162-65. Respondent also established that petitioner paid off the remaining
$123,358.87 balance on the loan when he sold his dental practice in 2014. Tr. at 103-04. This
was consistent with the testimony of petitioner and petitioner’s wife at the hearing. Tr. 10-11,
102-03, 118. Petitioner testified that he would have continued making the monthly loan
payments, including the interest payment, had the loan not been paid off at the time of the sale of
the business. Id. at 104.

In response to Dr. Cook’s opinion that the interest payment should be added back into
petitioner’s income, Dr. Kennedy, stated that the “interest expense was a normal, monthly cost of
operating [petitioner’s] business.” Resp. Ex. M at 2. Dr. Kennedy also highlighted the fact that
petitioner “re-negotiated his debt in 2011 as part of his 10-year business plan which indicates he

2
It appears that this reference was in error as at least the loan about which testimony was presented was paid off at
the time of the sale of the business in 2014. However, at the post-hearing status conference, petitioner’s accountant,
Mark Bryant, CPA, and respondent’s economic expert, Dr. Kennedy both opined that the loan would have been paid
off in 2016 absent the 2014 sale of the dental practice, though they differed as to the exact month. See discussion
infra p. 5.

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was likely to continue [the interest] expense.” Id. at 3. I announced at the conclusion of the
hearing that I was not allowing the interest payments on the business loan to be added back to the
income figures since petitioner would not have paid off the loan in 2014 but-for his vaccine
injury. Tr. at 121.

Weeks after the conclusion of the hearing, petitioner filed a letter from his accountant,
Robert Bryant, CPA, attempting to explain the varying interest payment numbers that appeared
in petitioner’s tax returns and arguing that the actual interest payments in 2013 and 2014 were
higher than the approximately $7,000.00 reflected on the loan amortization document. See Pet.
Ex. 89 (ECF No. 163). Respondent argued that a decision on damages was made at the
conclusion of the hearing, and, therefore, the letter should not be considered. Resp. Status Report
at 1 (ECF No. 164). Petitioner argued that the evidentiary record was not yet closed, as a written
decision on damages had not yet been issued. Pet. Status Report at 1 (ECF No. 167). Petitioner
requested that I consider the letter from the accountant in calculating petitioner’s lost wages. Id.
Although I indeed closed the record at the conclusion of the hearing, I held a recorded status
conference on December 14, 2023 to hear the parties’ arguments on this issue. See Tr. at 123
(“with that, we can close the record”); Status Conference Order (ECF No. 168).

In addition to counsel for both parties, petitioner’s accountant, Mr. Bryant, and respondent’s
economic expert, Dr. Kennedy, were present for the status conference. Mr. Bryant explained
that, after filing petitioner’s 2012 tax returns, he discovered that the $17,565.00 interest
deduction claimed therein was erroneous because the entire loan payment was applied to the
principal balance by mistake. See Pet. Ex. 56 at 48. Mr. Bryant further explained that, at the time,
he recalculated the interest that should have been deducted on the 2012 return and apparently
added it to the interest for 2013, leading to the $46,634.00 of interest payments claimed in 2013.
See id. at 49. The ensuing discussion revealed that petitioner apparently had a revolving business
credit account at Wells Fargo and a car loan, with the interest on these also included in Mr.
Bryant’s interest calculation. 3 Mr. Bryant correctly indicated that the Nicolet loan documentation
reflected payment beginning in April of 2013 and did not include whatever payments were made
on such loan in the first quarter of the year. Pet. Ex. 58 at 164. He suggested that inclusion of the
payments for the first quarter of 2013 would have somehow increased the interest payment to
about $28,000.00 for the year. 4

Dr. Kennedy tracked the loan balances through the underlying loan documents, which
suggested that there was more than one loan outstanding. He also argued that, based on the
history of financing for petitioner’s dental practice, it is likely that additional financing would
have occurred. Mr. Bryant observed that petitioner was paying an additional $250.00 a month
toward principal in order to reduce the Nicolet loan balance more quickly which, absent the 2014
sale of the business, would likely have been eliminated in 2016.

3
This was the first reference to a Wells Fargo line of credit throughout the entirety of this case. Petitioner filed no
documentation of such account.
4
According to Mr. Bryant, he was unable to obtain further documentation of the loan payments from Nicolet which,
at some point, merged with another bank and apparently no longer maintained the older files. There was no
indication of an effort to document the history of the revolving credit line.

5
While I can understand the argument that, if the loan payments were indeed eliminated in
2016 and Dr. Davis continued to practice past such time, the result would be a higher net income
for him, the evidence supporting such argument is too speculative to accurately quantify the
increase in net income. The evidence as to the rather complex maze of information regarding the
loans and loan payments is entirely too uncertain given the combination of loans with a balloon
payment, restructuring of the debt, revolving credit, loans that did not amortize on a straight-line
schedule, and other problems. If petitioner wanted to assert a serious claim for interest add back
to his income for the time after the loans were paid off, he should have prepared and presented a
detailed explanation at the time of the hearing. Even at the time of the post hearing status
conference, Mr. Bryant was not able to specifically quantify the amount of interest payments or
even the total loan payments on apparently more than one account to support a claim for an
interest add back exceeding the approximately $7,000.00 figure documented in the Nicolet
amortization printout. See Pet. Ex. 58 at 161-65. Furthermore, based on the evidence before me,
the larger interest payments made in the 2009-2012 period, assuming they were accurately
reflected on the tax returns, had reduced to approximately $7,000.00, suggesting that the
proposed add back was substantially reflected in the income numbers for the last two years in
petitioner’s practice. Thus, the $7,000.00 in interest payments was already factored into my wage
loss award announced at the conclusion of the hearing, as previously explained herein.

Accordingly, I conclude that there is not sufficient reason to re-open the evidentiary record.
Petitioner had the opportunity at the damages hearing held on October 30, 2023 to offer specific
evidence to explain and substantiate any increase in wage base based on the payoff of
outstanding loans, but such evidence was not presented. The evidence adduced during the post
hearing status conference is insufficient to substantiate an add back to income based on the
potential payoff of the loan or loans or to justify any further evidentiary proceedings.

iv. Effect of Sale of Dental Practice on Lost Wages

Petitioner, no longer able to practice dentistry due to his injury, sold his dental practice
for $400,000.00 in 2014. Pet. Ex. 85 at 4. Of the total purchase price, $300,000.00 was allocated
to goodwill, $5,000.00 was allocated to supplies, and $95,000.00 was allocated to “dental
equipment, office furniture, equipment, and trade fixtures.” Id. Petitioner claimed a $65,067.00
capital loss on his 2014 taxes related to the sale of equipment and deducted such loss from his
income. Id. at 168, 175. He also reported a capital gain of $259,805.00 from the sale of the
business. Id. at 168, 221.

Petitioner’s expert, Dr. Cook, opined that the capital loss should be included in
petitioner’s lost earnings. Pet. Ex. 66 at 6. Dr. Cook reasoned that “the sale of the property in
2014 was the sole function of the vaccine injury and absent the vaccine injury would have
occurred in 2022.” Pet. Ex. 80 at 1. According to Dr. Cook, there would have been no capital
loss in 2022 because the equipment would have been fully depreciated by that time. Id.

Dr. Kennedy disagreed with this analysis, observing that petitioner “received the
proceeds from the sale of the business in 2014, approximately 8 years sooner than he would have
but-for the incident.” Moreover, Dr. Kennedy highlighted the fact that the $65,067.00 capital loss
reduced petitioner’s income tax liability in 2014. Id.

6
Dr. Kennedy also opined that any interest earned on investment of the net proceeds of the
sale would need to be reduced from Petitioner’s lost wages. Id. When asked what happened to
the net proceeds from the sale, petitioner stated that $123,000.00 went towards paying off the
outstanding business loan, and the remainder was likely put in a non-interest-bearing account. Tr.
at 96-97. Mrs. Davis testified that she believed the funds were put in a minimal interest-bearing
account. Id. at 109. Regardless of whether the account was non-interest-bearing or was a
minimal interest-bearing savings account, there is no reduction in lost wages from interest made
on the net proceeds from the sale of the dental practice. A review of later year tax returns shows
an essentially de-minimis amount of interest earned of approximately $150.00 a year. See, e.g.,
Pet. Ex. 79 at 4. Thus, while there does appear to be investment income, it is not clear whether
that arose from the proceeds of the sale or from his retirement account.

Dr. Kennedy’s approach to the capital loss is the proper method for “actual lost wages.”
Dr. Cook postulated that, had Dr. Davis continued to practice through the year 2022, the
equipment would have been fully depreciated and had no value, thus the pre-mature sale in 2014
caused the loss of $65,067.00. While the tax code allows the depreciation of business equipment
on varying schedules, it seems unlikely that the equipment and leasehold improvements would
have had no value on the resale market at the time that it was fully depreciated. What it’s value
would have been is speculative. Furthermore, Dr. Cook set forth a formula for capital loss: “the
sum of the sales price and depreciation minus the acquisition cost.” Pet. Ex. 80 at 1. Though
there was testimony about the original loans which financed the purchase of the equipment, no
evidence was presented as to the actual acquisition cost of the equipment and improvements
being depreciated or about depreciation schedule on such equipment.

If petitioner expected to be compensated for this capital loss, consistent with his burden
of proof, he should have presented evidence explaining all of the above at the hearing. He did
not, and I do not see any reason to re-open the evidence based on what has now been submitted.

For these reasons, I accept Dr. Kennedy’s opinion that petitioner’s lost wages are
$1,036,017.00, using a wage base of $139,692.00 per year and a work life expectancy until
petitioner’s 80th birthday. This amount does not include the $65,067.00 capital loss on the sale
of equipment, an add-back from petitioner’s payoff of the business loan, or a reduction from any
interest earned on the investment of the net proceeds from the sale of the dental practice.
Because petitioner was 81 years old at the time of the damages hearing, all lost wages are
awarded as past lost wages.

B. Pain and Suffering

The Vaccine Act provides that a petitioner may recover “for actual and projected pain
and suffering and emotional distress from the vaccine-related injury an award not to exceed
$250,000.” 42 U.S.C. § 300aa–15(a)(4). There is no mathematical formula for assigning a
monetary value to a person’s pain and suffering. I.D. v. Sec’y of Health & Human Servs, No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. Dec. April 19, 2013). A “continuum of
injury” approach to pain and suffering damages, where the cap was reserved for the most severe
injuries and lower awards were made for less severe injuries, was created with a goal “to fairly

7
treat all petitioners.” Hocraffer v. Sec’y of Health Human Servs., No. 99-533V, 2007 WL
*914914, at *5 (Fed. Cl. Spec. Mstr. Feb. 28, 2007). However, the Court of Federal Claims later
determined that this the “continuum” approach was not “rooted in statute or precedent.” Graves
v. Sec’y of Health and Human Servs., 109 Fed. Cl. 579, 590 (2013).

In Graves, the Court set forth a different approach in which the first step is to assess an
individual petitioner’s pain and suffering by looking to the evidence on the record, without
regard to the $250,000 cap. Id. at 589-90 Only then as a second step, if the award would exceed
$250,000, must it be reduced to that maximum. See id. Though not binding on special masters,
the Graves approach has been found to be persuasive, and is now the prevailing approach used.
See, e.g., I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *10
(Fed. Cl. Spec. Mstr. Moran April 19, 2013) (“Under the interpretation of the statute offered in
Graves, cases that used the spectrum approach, such as Hocraffer and Long, are no longer useful
measuring points”); Reed v. Sec’y of Health & Human Servs., No. 16.1670V, 2019 WL 1222925,
at *12 (Fed. Cl. Chief Spec. Mstr. Dorsey Feb. 1, 2019) (“it must be stressed that pain and
suffering is not based on a continuum”); Selling v. Sec’y of Health & Human Servs., No. 16-
588V, 2019 WL 3425224, at *5 (Fed. Cl. Spec. Mstr. Oler May 2, 2019) (“Pain and suffering is
not, however, determined based on a continuum”); Dillenbeck v. Sec’y of Health & Human
Servs., No. 17-428V, 2019 WL 4072069, at *13 (Fed. Cl. Spec. Mstr. Corcoran July 29, 2019)
(“… special masters appear to have accepted Graves’s methodology since issuance of that
decision… I will apply it herein as well, although I do so mindful of the need to consider the
overall strength of petitioner’s showing herein”), rev’d and remanded on other grounds, 147
Fed. Cl. 131 (2020); W.B. v. Sec’y of Health & Human Servs., No. 18-1364V, 2020 WL
5509686, at *3 (Fed. Cl. Chief Spec. Mstr. Corcoran Aug. 7, 2020) (“it must be stressed that pain
and suffering is not based on a continuum”).

In assessing the entire record in awarding damages for pain and suffering, factors to
consider include “(1) the ability to understand the injury . . . (2) the degree of severity of the
injury; and (3) the potential number of years the individual is subjected to the injury.” I.D., 2013
WL 2448125 at *9 (internal citations omitted). I find it appropriate to also consider any
impairments in function and/or lost ability to participate in activities which the petitioner
previously enjoyed, as a result of the injury.

There is nothing diminishing petitioner’s ability to understand his injury. He has been
acutely aware of the pain in his right hand and arm since its onset in 2013. Petitioner testified to
his awareness of the pain, and how he must consciously adjust the way he accomplishes basic
tasks to account for the decreased function in his right hand. Tr. at 43, 51–52. Petitioner is also
aware of the permanent nature of his injury. Petitioner testified that he understood that the vast
majority of people with brachial neuritis recover in two to three years. Id. at 62. Though he spent
the first few years with his condition hopeful for a full recovery, he now understands that his
condition is permanent and is unlikely to improve. Id.

The permanent nature of petitioner’s injury is also relevant to third Graves consideration.
At the time of the hearing, petitioner had suffered from pain and decreased function in his
dominant, right hand for about ten years. Id. at 45. Petitioner testified that he has experienced
daily pain since the onset of his brachial neuritis. Id. Petitioner’s symptoms have now persisted

8
for three times the number of years it takes most brachial neuritis patients to fully recover from
the condition, and I concluded at the hearing that his injury is permanent. Id. at 122.

Petitioner also established the severe nature of his injury. In his testimony, he explained
that most of his pain is in the area of his right deltoid muscle. Id. at 44. He also testified that he
struggles with fine motor control of his right hand. Id. at 46. His daily pain level ranges from
approximately 2 to 6 out of 10. Id. at 41. He takes ibuprofen multiple times per day to treat the
pain, but it is not fully effective. Id. at 8. Many of petitioner’s daily activities are affected by his
ongoing pain. See e.g., id. at 47-48. This testimony, along with petitioner’s medical records
establish the severe nature of his injury.

Finally, petitioner testified that his injury “turned [his] life upside down.” Id. at 39. The
majority of petitioner’s social activities revolved around his work as a dentist. Petitioner testified
that “most of the things I was really attached to, that I gained great joy from are no longer
possible. And so I have lost the collegial friendship contacts from the people that were in a
similar position all over the country. Our friendships were very much tied up with the work that
we did. We miss the interaction with patients.” Id. at 39. He also testified that his injury upended
his life by ending his career as a dentist, causing him to withdraw socially, and putting financial
strain on his family. Id. at 41. Petitioner’s wife reiterated these points, testifying that dentistry
“was everything” for them. Id. at 116. Petitioner has clearly lost the ability to do something he
once enjoyed as a result of his injury. In consideration of petitioner’s awareness of his injury, the
10 years that he has experienced pain, the severity of his injury, his loss of function, and his
inability to practice dentistry, along with the attendant psychological pain that has caused, I
award petitioner $250,000.00 in past pain and suffering. Id. at 122.

III. Conclusion

Based on the record as a whole and the testimony heard at the October 30, 2023 hearing,
I award petitioner a lump sum payment of $1,286,017.00, representing $1,036,017.00 in past
lost wages and $250,000.00 in past pain and suffering. This amount represents
compensation for all damages available under § 300aa-15(a).

The Clerk of the Court is directed to enter judgment in accordance with this decision.

IT IS SO ORDERED.

s/ Thomas L. Gowen
Thomas L. Gowen
Special Master

9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10736465. Public record. Not legal advice.