The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-593V
NICOLE EGBERT, Chief Special Master Corcoran
Petitioner,
v. Filed: January 16, 2026
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON DAMAGES1
On January 12, 2021, Nicole Egbert filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (“Vaccine
Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on September
18, 2020. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters. The matter was conceded in Petitioner’s favor, but the
parties could not agree to damages, so their dispute was presented for my resolution.
For the reasons set forth below, I find that Petitioner is entitled to
compensation in the amount of $140,000.00 for past pain and suffering, and
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 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, 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 (2018).
$2,908.81 in past unreimbursable expenses. Petitioner is also entitled to a damages
component for past and future lost wages, in an amount to be calculated by the
parties in accordance with the terms of this Ruling.
I. Procedural History
The case was assigned to the SPU in January 2022. ECF No. 15. On May 23,
2022, Petitioner filed an Amended Petition. ECF No. 20. On May 1, 2023, Respondent
filed a Rule 4(c) Report conceding entitlement to compensation and I entered a Ruling on
Entitlement in Petitioner’s favor. ECF No. 31-32. On June 13, 2023, Petitioner filed a
status report indicating that the parties had reached an impasse on damages and
requested permission to retain a vocational expert and economist to provide an opinion
on her claim for lost wages. ECF No. 36. Respondent then indicated that he wished to
retain his own experts. ECF No. 44. After I granted these requests, Petitioner filed her
reports on October 17, 2023 and Respondent filed his responsive reports on December
26, 2023. ECF Nos. 45, 49.
The parties resumed their attempts to informally resolve damages: Petitioner filed
medical records meant to address the questions raised by Respondent’s vocational
expert, and Respondent filed a supplemental report. ECF Nos. 50-51, 54. However, by
July 2024, the parties reported that they continued to disagree on Petitioner’s future work
capacity. ECF No. 55. I thus ordered the parties to file damages briefs by September 20,
2024. However, before this date, Respondent moved for an extension and for permission
to retain an expert orthopedist. ECF No. 58. I denied this request and set a new briefing
deadline, noting that there was no reason to further halt the progression of this matter
and that Respondent had been given ample opportunity to provide expert testimony. ECF
No. 61.
On September 27, 2024, the parties filed their simultaneous damages briefs. ECF
Nos. 62 (“Pet’r Br.”), 63 (“Resp’t Br.”). On October 30, 2024, the parties filed simultaneous
response briefs. ECF Nos. 64 (“Pet’r Resp. Br.”), 66 (“Resp’t Resp. Br.”). On the same
day, Respondent also filed a supplemental report by his economic expert. ECF No. 65.
Due to this new expert filing, I approved Petitioner’s request to file a rebuttal report. ECF
No. 67. However, on December 6, 2024, Petitioner indicated that she had decided not to
file any rebuttal report. ECF No. 68.
On March 25, 2025, I held a status conference and ordered the parties to file a
joint status report stating whether they would like to proceed with resolution of damages
via a “Motions Day” argument, or whether they believed that the issues could be resolved
2
based on the record as filed. On April 4, 2025, the parties indicated that they wished to
proceed on the record as filed. ECF No. 69. This matter is thus ripe for resolution.
II. Factual Findings
A. Petitioner’s Employment History and Initial Treatment
Petitioner was 35 years old at the time of vaccination. Ex. 4 at 4. Her medical
history was significant for Type 1 diabetes, which she managed using an insulin pump.
See, e.g., Ex. 5 at 115-116. Petitioner did not have any previous left shoulder injuries or
symptoms, but had undergone an ulnar nerve transposition in her right arm in 2016. Ex.
15 at 261.
Petitioner had been employed as a dental hygienist since 2010. Ex. 24 at 8. She
had a history of working in this profession both full-time and part-time. In 2015 and 2016,
Petitioner worked full-time. Id. at 7. Starting in 2017, Petitioner and her husband began
fostering children, and Petitioner changed her schedule to part-time to primarily be a stay-
at-home parent. Id. at 11. In approximately November 2019, Petitioner stepped away from
her hygienist job entirely due to her family obligations. See Ex. 16 at 127; Ex. 5 at 14, 97.
However, in March 2020, Petitioner returned to work four days per week with her previous
employer, dentist Dr. David Lewis. Ex. 24 at 8. Petitioner was unable to work between
March 2020 and May 2020 when Dr. Lewis’ office closed due to the COVID-19 Pandemic,
but she resumed working four days per week in June 2020. Id. at 8, 11; Ex. 33 at 1.
Petitioner was “excited to be back at [her] office and being able to contribute to [their]
recently increased family household.” Ex. 33 at 1.
On September 18, 2020, Petitioner received the flu vaccine in her left shoulder at
her primary care provider (“PCP”) office. Ex. 3 at 1. Petitioner returned to her PCP office
on September 20, 2020, complaining of left arm pain and a decreased range of motion
(“ROM”). Ex. 4 at 4. According to her treater, Petitioner was “very upset because she
feels like she may not be able to work tomorrow due to pain.” Id. Petitioner stormed out
of the office when she was told merely to continue taking anti-inflammatories and was not
given oral steroids. See id at 5.
On October 14, 2020, Petitioner underwent a left shoulder MRI at her local medical
center. Ex. 9 at 3. The MRI revealed subtle tendinopathy in the supraspinatus tendon with
no rotator cuff tear, small glenohumeral joint effusion and trace amount of fluid in the
subacromial bursa, and mild edema in the teres minor muscle and along the periphery of
the infraspinatus and subscapularis muscles. Id. at 4. The interpreting physician also
noted that the mild edema observed could be due to muscle strains, but that a joint
3
infection was also not excluded. Id. Further, an “[u]nusual reaction to the immunization
[was] not entirely excluded but this would be very unusual and the subcutaneous tissues
and deltoid muscle appear normal.” Id.
Petitioner had an initial evaluation with physician assistant (“PA”) Jeffrey Griggs at
The Shoulder Clinic of Idaho (“Shoulder Clinic”) on October 22, 2020. Ex. 7 at 10.
Petitioner complained of pain since the vaccination, and that it had been exacerbated by
a plane flight in October. Id. Petitioner described left shoulder pain that “waxed and
waned” despite topical medications. Id. Petitioner also noted “difficulty getting her arm up
for any period of time to function at work as needed.” Id. After discussion of various
treatment options, Petitioner decided to continue with NSAIDs, topical Voltaren gel, and
activity modification, and then would follow-up within two weeks. Id. at 13.
Petitioner had her follow-up appointment with Dr. Jared Johnson at the Shoulder
Clinic on October 30, 2020. Ex. 7 at 8. Dr. Johnson diagnosed Petitioner with a SIRVA
and again reviewed treatment options. Id. at 9. Dr. Johnson gave Petitioner the option of
an aspiration, but she elected to “continue active follow up and monitoring with physical
therapy.” Id. Petitioner also stated that anti-inflammatories had helped and that she
preferred not to have a steroid injection due to her diabetes. Id.
On November 4, 2020, Petitioner had her first physical therapy (“PT”) session at
Pierce Physical Therapy and Sports Rehab (“Pierce PT”). Ex. 6 at 2. Petitioner reported
“ongoing constant pain” in her left shoulder that caused her to be unable to work as a
hygienist. Id. Petitioner also stated that she was taking meloxicam but “ha[d] not found
significant relief.” Id. Petitioner’s pain was at worst an 8/10 and 4/10 at best. Id. The
physical therapist noted that Petitioner exhibited “[s]evere muscle guarding due to pain
and apprehension of movement.” Id. at 3.
Petitioner saw PA Griggs at the Shoulder Clinic on November 17, 2020. Ex. 7 at
3. Petitioner reported that her symptoms were “slightly better” but still inhibited her from
working on a regular basis and also affected her sleep. Id. PA Griggs prescribed Petitioner
diclofenac instead of meloxicam and encouraged her to continue with PT. Id. at 4.
Petitioner had two more sessions at Pierce PT on December 10 and 14, 2020. Ex.
7 at 6-8. At her second session, Petitioner stated that she was back at work “filling in,” but
had been having considerable pain, including while doing daily tasks and sleeping. Id. at
6. Nonetheless, Petitioner reported “minimal pain or discomfort in the shoulder” following
treatment. Id. At her third session, Petitioner stated that she had been “working full days
with double patients as she is filling in for 2 hygienists at the moment, which has been
4
increasing the soreness of her shoulder.” Id. at 8. Petitioner also noted a “great benefit”
from taping her left arm. Id.
After December 14, 2020, Petitioner did not attend any further sessions at Pierce
PT, although she was not discharged and had not completed her treatment goals. Other
than an urgent care visit for COVID-19 symptoms, see Ex. 30 at 859, Petitioner did not
receive any medical treatment, including for her left shoulder, for three and a half months.
B. Petitioner Resumes Treatment, Proceeds with Surgery, and Receives
Long-Term Antibiotics for an Infection
On April, 1, 2021, Petitioner had a follow-up appointment with PA Griggs at the
Shoulder Clinic, reporting that she was still in pain. Ex. 14 at 24. Petitioner stated that she
was “back to work essentially full time as a dental hygienist.” Id. Petitioner had also been
prescribed tramadol for night pain, although she used this “very sparingly.” Id. PA Griggs
noted visible atrophy of Petitioner’s upper extremities and Petitioner stated that she had
been told by a trainer at a gym that she had a “substantially smaller tricep/arm
measurement on the left vs. right stemming from lack of use of the [left upper extremity].”
Id. PA Griggs ordered another MRI to compare with her previous imaging. Id. at 26.
On April 24, 2021, Petitioner underwent this second MRI. Ex. 15 at 235-36. The
results were generally normal, but there was joint effusion with synovial thickening that
had increased from the previous MRI. Id. at 236. However, the previously-seen edema in
the rotator cuff muscles had resolved. Id.
Petitioner then saw Dr. Joseph Lynch at the Shoulder Clinic on May 5, 2021, for a
second opinion. Ex. 14 at 20. Like PA Griggs, Dr. Lynch noted visible atrophy of
Petitioner’s left shoulder muscles. Id. at 21. Petitioner was interested in trying a steroid
injection, but agreed to forego any injections or aspirations due to her diabetes and the
injection-related nature of her injury. Id. at 21-22. Dr. Lynch also discussed surgical
options. Id.
On May 13, 2021, Petitioner saw Dr. Johnson at the Shoulder Clinic and decided
to proceed with surgery. Ex. 14 at 16-18. Petitioner underwent a left shoulder arthroscopy
with lavage on May 17, 2021. Id. at 13-15. Although Petitioner did not present any signs
of infection pre-surgery, Dr. Johnson felt that culturing the area of synovitis could be useful
and took five deep soft tissue biopsies. Id. Petitioner was discharged on doxycycline. Ex.
13 at 2.
5
Post-surgery, Petitioner received PT from Foothills PT starting on May 18, 2021.
Ex. 11 at 5. Petitioner completed five PT sessions through June 9, 2021. Id. at 10-16. At
her June 9, 2021 appointment, the physical therapist found that Petitioner had regained
at least 90% of her left shoulder mobility and recommended decreasing the frequency of
sessions to once per week. Id. at 15-16. Petitioner did not attend any further sessions.
During the same month, Petitioner was seen by Dr. Thomas Coffman, an infectious
disease specialist, because at least one of the cultured samples from her surgery grew
cutibacterium acnes.3 Ex. 13 at 2. Dr. Coffman believed that the flu vaccination
inadvertently inoculated and “seeded” Petitioner’s shoulder joint with this bacteria. Id. at
2-3. Dr. Coffman wrote that Petitioner had experienced a significant reduction in pain
post-surgery, but it started to increase again in the last week. Id. at 2. Petitioner was
switched from doxycycline to amoxicillin, which seemed to have resulted in her pain
decreasing again. Id. Dr. Coffman prescribed another medication, probenecid, to take
with the amoxicillin for the next three months. Id. at 3. Additionally, Dr. Coffman noted
that if Petitioner’s pain returned after stopping the antibiotics, he would order another
course over six months.4 Id.
On June 25, 2021, Petitioner contacted Dr. Coffman’s office due to swollen lymph
nodes and a body rash that had developed over the past one to two weeks. Ex. 12 at 7.
Dr. Coffman’s staff advised her to go to urgent care. Id. At urgent care, Petitioner was told
to discontinue the amoxicillin and probenecid and was given doxycycline instead. Id. at
12. Petitioner then returned to Dr. Coffman’s office on July 1, 2021 and was prescribed a
60-day course of a different antibiotic because the doxycycline caused nausea and
vomiting.5 Ex. 13 at 4.
At her eight-week follow-up post-surgery with PA Griggs, on July 13, 2021,
Petitioner reported that she was “doing great” and was “very grateful for the relief that she
has gotten since her surgery.” Ex. 14 at 5. Petitioner’s only complaint was some
discomfort while sleeping, but this was “minimal” and could be corrected with positional
changes. Id. Petitioner did note some increase in pain when switching antibiotics, but this
3
Cutibacterium acnes is a bacteria typically found on human skin. See Cutibacterium
(ex.Propionibacterium) species, Johns Hopkins ABX Guide,
https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540453/all/Cutibacterium__ex
_Propionibacterium__species (last visited January 9, 2026).
4
Petitioner also had an appointment with Dr. Johnson at the Shoulder Clinic on June 1, 2021. Ex. 14 at 8.
Petitioner stated that she was significantly improved and was “basically back to normal.” Id.
5
On July 23, 2021, Petitioner called Dr. Coffman’s office and stated that she had restarted her amoxicillin
(presumably from her old prescription) because of pain in her shoulder and increased blood sugars. Ex. 18
at 7. Petitioner felt that her rash had been caused by the probenecid only. Id. Dr. Coffman provided
Petitioner with a new prescription for amoxicillin. Id.
6
had been alleviated by taking the new prescription. Id. Petitioner saw PA Griggs again on
September 17, 2021, and other than some minimal increased shoulder pain when she
forgot to take her antibiotics for a few days and when flying, she reported that her
condition was substantially better than pre-surgery.6 Ex. 17 at 10. At this time, Petitioner
was following a home exercise program (“HEP”) and working out at the gym. Id. at 11.
Petitioner had her next appointment with Dr. Coffman on November 16, 2021. Ex.
18 at 9; Dr. Coffman wrote that Petitioner had just discontinued taking amoxicillin about
one week earlier. Ex. 18 at 9. While on the amoxicillin, her pain had been well-controlled
and she “barely ha[d] to take any medications.” Id. Since stopping amoxicillin, she had a
“little bit of increased pain,” but it was a “1000 times better than it was.” Id. Dr. Coffman
also described Petitioner has having excellent ROM and doing “dramatically better.” Id.
Petitioner wanted to continue taking amoxicillin, and Dr. Coffman agreed and provided a
six-month prescription at half her prior dose. Id. at 10; Ex. 17 at 7. Dr. Coffman did not
think that any further surgical intervention would be needed and that she would continue
to get better. Ex. 18 at 10. Despite the six-month prescription, Petitioner only stayed on
antibiotics until January 2022. See Ex. 21 at 2.
Petitioner also saw PA Griggs on the same day, November 16, 2021. Ex. 17 at 7.
Similarly, PA Griggs wrote that Petitioner was doing well and felt much better than she
did prior to surgery, although she had some soreness “from time to time,” primarily when
she was not on antibiotics. Id. at 7-8. PA Griggs told Petitioner that she would gain
strength over the first year post-op and indicated that she should follow up in May 2022.
Id. at 8.
C. Petitioner’s Left Shoulder Symptoms Return Over Time and Then
Dissipate Again
On March 15, 2022, Petitioner returned to Foothills PT “due to not having the ROM
and strength she wants[.]” Ex. 19 at 7. Petitioner complained that her left shoulder pain
kept her up at night and she wanted to be able to do yoga and bow hunt. Id. Petitioner
reported her best and current pain level as 1/10 and her worst as 6/10. Id. Petitioner also
stated that her right shoulder had starting hurting from overcompensating and she was
having numbness in both hands in the ulnar nerve area. Id.
Petitioner attended four more PT sessions between March and May 2022. In terms
of her employment, Petitioner told the physical therapist that she had the most pain after
working due to the positioning of her arm. Id. at 13. She also tried to change her
6
PA Griggs quoted Petitioner as saying she “could like with this.” Ex. 17 at 10. This appears to be a
typographical error and Petitioner presumably stated that she “could live with this.”
7
positioning when working and standing but was still experiencing numbness in her hands.
Id. at 14. At her final session, Petitioner stated that her left shoulder still hurt and the hand
numbness “still comes and goes bilaterally.” Id. at 16. However, the physical therapist
noted that Petitioner was working out regularly. Id.
On May 13, 2022, Petitioner saw a new PCP. Ex. 30 at 512. With regard to her left
shoulder, Petitioner “continue[d] to have constant pain with severity that fluctuates.” Id. at
513. Petitioner was listed as working part-time as a dental hygienist. Id. Petitioner also
reported that she had stopped drinking alcohol recently and had previously been drinking
two or more glasses of wine on a daily basis “to help manage her shoulder pain.” Id.
Petitioner followed-up with PA Griggs at the Shoulder Clinic on May 17, 2022. Ex.
20 at 7. Petitioner primarily discussed the impact of her left shoulder symptoms on her
employment.7 Id. Although PA Griggs noted that Petitioner “maintains fairly good ROM,”
Petitioner’s dental hygienist work caused “persistent left shoulder pain” from keeping her
arm at or near shoulder level throughout the day. Id. Petitioner was currently working two
days per week, but needed two to three days of recovery after each shift. Id. Further,
when her shoulder hurt, she could not sleep well and she felt that her elevated blood
glucose levels were caused by stress and loss of sleep. Id. Petitioner stated that she was
unsure if she could maintain her current job with these issues. Id.
PA Griggs recommended that Petitioner try to get her blood glucose down to
reduce inflammation. Ex. 20 at 9. He also suggested that Petitioner would benefit from
continuing with PT and/or a HEP, and could potentially undergo another MRI in the future
to see if another surgery would be beneficial. Id. PA Griggs also stated that Petitioner’s
left shoulder “may or may not get better in relation to her job moving forward in the future
despite her good ROM.” Id.
On June 28, 2022, Petitioner saw a colleague of Dr. Coffman, infectious disease
specialist Dr. Camilla Reese. Ex. 21 at 2. Dr. Reese wrote that Petitioner began having
shoulder pain again “[a] few months after stopping antibiotics . . . .” Id. Petitioner told Dr.
Reese that she had recently been prescribed the antibiotic Augmentin for a sinus infection
and that this had improved her shoulder pain. Id. at 2-3. Petitioner was concerned that
she had recurrent shoulder infection. Id. at 3. Dr. Reese instructed Petitioner to complete
the course of Augmentin and return for a further workup and MRI if the shoulder pain
returned. Id.
7
Petitioner no longer had any visible left shoulder muscle atrophy at this appointment. Ex. 20 at 8.
8
Petitioner returned to PA Griggs at the Shoulder Clinic on August 19, 2022.8 Ex.
20 at 4. Petitioner reported that she continued to have some aches with activities and
altitude changes, but “overall feels like she is doing better.” Id. Petitioner had not been on
antibiotics for several months and was trying a an anti-inflammatory died. Id. PA Griggs
advised Petitioner to continue with PT and/or a HEP and follow-up on an as-needed basis.
Id. at 5.
D. Petitioner’s Final Left Shoulder Appointments
Petitioner did not receive any further care for her left shoulder until almost a year
9
later. On August 8, 2023, Petitioner saw PA Griggs for a follow-up because she “just
ha[d] some questions.” Ex. 22 at 5. Petitioner stated that she was only able to work one
to two days per week as a dental hygienist “due to her continued ache with sustained
activity at or about shoulder level which is her primary arm position with most of her work
duties.” Id. In terms of treatment options, PA Griggs recommended the conservative use
of NSAIDs, ice, and acetaminophen, and explained that Petitioner was not a good
candidate for a steroid injection due to her diabetes. Id. at 7. PA Griggs also provided
Petitioner with a refill of diclofenac. Id. PA Griggs also recommended that she should
maintain a HEP and would benefit from activity modification at work. Id.
Petitioner then returned see PA Griggs on March 29, 2024. Ex. 31 at 1. Petitioner
reported that she was now limited by her symptoms to working one day per week. Id. PA
Griggs examined Petitioner and found some mild limitation of her left shoulder ROM and
positive Neer and Hawkins signs. Id. It appears that the purpose of this appointment was
for Petitioner to obtain responses to certain medical questions posed by Respondent’s
vocational expert, discussed in further detail below. See Ex. A at 11; Ex. 31 at 3.
E. Petitioner’s Declarations and Witness Statement
Petitioner submitted an extremely cursory declaration with her Petition in January
2021. See Ex. 1 at 1. On August 8, 2024, Petitioner filed a second, much more detailed
8
On July 19, 2022, Petitioner saw her endocrinologist. Ex. 30 at 474. With regard to her left shoulder,
Petitioner mentioned that she had taken antibiotics in June 2022 and that turmeric has “really helped her
pain.” Id. The endocrinologist also noted that Petitioner was working as a dental hygienist again (although
the number of days per week was not listed) and had five children at home, but was no longer fostering. Id.
9
Petitioner briefly referenced her left shoulder at some of her unrelated appointments. On January 31,
2023, at her annual physical, Petitioner indicated that diclofenac helped her shoulder the most, but she only
needed to use it about once per month. Ex. 30 at 359. At a February 9, 2023 endocrinologist appointment,
Petitioner mentioned that she was working as a dental hygienist two days per week and that her shoulder
was doing well with “some occasional pain.” Id. at 339. The same information was repeated in the notes of
Petitioner’s April 4, 2023 endocrinologist appointment. See id. at 318-19.
9
declaration. Ex. 33 at 1-4. Petitioner stated that she was in insufferable, agonizing pain
within a few hours of the vaccination, and described this as the day that “would forever
change [her] life.” Id. at 1. Petitioner explained that when she returned to work after the
pandemic shutdown, the pain was so severe that she had difficulty performing dental
cleanings properly and changing the protective barriers in the room in between patients.
Id. at 1-2. According to Petitioner, she “went from being a great dental hygienist to having
patients request another hygienist because they felt they weren’t getting good treatment.
And they weren't wrong.” Id. at 2. This was “devastating” to Petitioner professionally and
she also feared the loss of income for her family if she could no longer work full-time. Id.
Petitioner then attempted to work one day per month, but even this was “still agonizingly
painful.” Id.
Petitioner decided to undergo surgery “[i]n hopes to get [her] life back.” Ex. 33 at
2. After the surgery, Petitioner believed that she would be able to work two days per week,
with the shifts spaced out to give her time to recover. Id. However, she ultimately had to
decrease to one day per week. Id. Petitioner’s husband had to find a second job to make
up for the loss of income. Id. Petitioner was considering going back to school for a different
career, but was hesitant to start over and take out more student loans. Id.
In addition to the effect on her professional life, Petitioner stated that her left
shoulder pain made it extremely difficult to travel to see her family and to care for her
children. Ex. 33 at 3. Petitioner felt that her ability to pick up and bond with her youngest
adopted child had been stolen from her by her injury. Id. Petitioner had difficulty sleeping
for a year due to the pain. Id. Petitioner also described needing her husband’s help with
daily tasks like getting dressed and doing her hair. Id. Further, Petitioner could no longer
pursue hobbies like bow hunting. Id. According to Petitioner, “[t]he grief cycle continues
to be a never-ending [F]erris wheel that I cannot get off and may take years of counseling
to work through.” Id. at 4.
Petitioner’s employer, Dr. Lewis, also submitted an unsworn letter, dated July 3,
2023. Ex. 23 at 1. Dr. Lewis confirmed that Petitioner had worked for him both full-time
and part-time, as her family obligations allowed. Id. At the time of her injury, Petitioner
was working full-time. Id. Dr. Lewis described that after the vaccination, Petitioner
attempted to keep working, but needed a “substantial amount of help from [his] dental
assistant to complete her tasks.” Id. Petitioner then had to reduce her hours to one day
per month. Id. Dr. Lewis stated that it was very difficult to find hygienists and that he
“probably placed an inordinate amount of pressure on [Petitioner] to work as much as she
can.” Id. Petitioner agreed to come back to work but ended up only being able to work
one day per week. Id. Dr. Lewis described Petitioner as very hardworking and a valued
employee, who he hoped would be able to one day resume her previous schedule. Id.
10
III. Expert Reports
A. Petitioner’s Vocational Expert – Staci Schonbrun, Ph.D.
Petitioner engaged Dr. Staci Schonbrun as a vocational expert to analyze
Petitioner’s lost earning capacity. Dr. Schonbrun has a Ph.D. in Rehabilitation
Counseling, and has been employed as a Certified Rehabilitation Counselor and Life
Care Planner for 28 years. Ex. 26. Dr. Schonbrun interviewed Petitioner on August 1,
2023 and provided an expert report dated August 23, 2023. See Ex. 24 at 8.
After reviewing Petitioner’s work history and earnings, Dr. Schonbrun opined that
Petitioner’s pre-injury earning capacity was best represented by her full-time schedule in
2015 and 2016, before she switched to a part-time schedule for family reasons in 2017-
2019. Id. at 12. In particular, Dr. Schonbrun noted that Petitioner had recently returned to
working four days per week (largely full-time) in 2020, before the COVID-10 Pandemic
and her injury. Id. It was thus “reasonable that absent the date of injury, [Petitioner] had
the education, work history and physical ability to work on a full-time basis as a dental
hygienist.” Id. Using the 2022 median wage for dental hygienists in Idaho from the United
States Bureau of Labor Statistics, Dr. Schonbrun calculated that a reasonable measure
of Petitioner’s earning capacity at 32 hours per week would be $66,255.38 annually.10
With regard to her post-injury earning capacity, Dr. Schonbrun relied upon
Petitioner’s actual schedule history. In her interview with Dr. Schonbrun, Petitioner stated
that she had worked two days per week for the past year, but “found that she was in [a]
significant amount of pain at this level of employment and that her pain level significantly
impacted her blood sugar and her diabetic condition.” Id. at 9. Petitioner had recently
reduced her schedule to one day per week in July 2023 and “has found that she is able
to do this albeit with difficulty.” Id. Again using the median wage for dental hygienists in
Idaho, Dr. Schonbrun calculated that a reasonable measure of Petitioner’s post-earning
capacity at one day per week would be annual earnings of $16,563.85.11 Id. at 14.
Therefore, Dr. Schonbrun concluded that Petitioner’s annual loss of earning capacity was
$49,691.53 ($66,255.38 minus $16,563.85).12 Id. at 15.
10
Petitioner’s average salary in 2015-16 was $60,342, which Dr. Schonbrun also stated was a “good
indicator” of Petitioner’s pre-injury earning capacity, although it would need to be adjusted to present value.
Ex. 24 at 12.
11
Dr. Schonbrun also provided an alternative calculation of $10,399.66, based on Petitioner’s previous
salary at two days per week divided by two. Id. at 14.
12
Dr. Schonbrun include a standardized work life expectancy calculation, but stated that she deferred to
an economist on this issue. Id. at 15. Dr. Schonbrun also deferred to an economist of calculation of inflation
and discount rate. Id.
11
B. Respondent’s Vocational Expert – Benush Mortimer, Ph.D.
Dr. Benush Mortimer provided a rebuttal opinion for Respondent regarding
Petitioner’s vocational capacity. Ex. A at 10. Dr. Mortimer has a Ph.D. in Psychology with
a specialization in industrial organizational psychology. Ex. E at 2. Dr. Mortimer also has
had a long career in vocational rehabilitation counseling. Id. at 1-2. Dr. Mortimer did not
interview Petitioner.
Dr. Mortimer found it “difficult to assess” Petitioner’s vocational capacity “based on
objective factors” because “most of the information relevant to her complaints are
subjective statements reported by herself in affidavits or to providers.” Ex. A at 10.
However, Dr. Mortimer focused on Petitioner’s “different medical and life circumstances”
that made her participation in the workforce variable between full-time and part-time in
the past. Id. Dr. Mortimer believed that a combination of Petitioner’s Type I diabetes and
familial demands, along with the vaccine injury, “could be contributing to [Petitioner’s]
overall stress and difficulties related to work.” Id. Further, Petitioner’s diabetes and family
structure “will continue to be present in her life more likely than not.” Id. at 11. Based on
Petitioner’s work history, Dr. Mortimer concluded that Dr. Schonbrun had overstated
Petitioner’s earning capacity by not taking into account the likelihood that there would be
future periods in which Petitioner “will either medically or psychosocially need to work
part-time.” Id.
According to Dr. Mortimer, Petitioner’s pre-injury earning capacity was best defined
as the average of her annual earnings from 2015-19 in current dollars. Id. However, in
order to finalize her opinion, Dr. Mortimer requested that medical professionals answer
five questions about Petitioner’s condition and current capacity to work. Id.
Petitioner posed these questions to PA Griggs at her March 29, 2024 appointment.
The full questions, with PA Grigg’s answers in italics, are quoted below:
1. Objectively, what is Ms. Egbert’s physical restrictions and/or work
restrictions, if any?
Ms. Egbert will benefit from an altered work schedule due to the
nature of her job as a dental hygienist working at or above shoulder level
for several hours per day. This may be altered working days or shorte [sic]
work days. Ergonomically adjustable adjustment such as higher seating
may alleviate some of the symptoms associated with her prior diagnosis
and surgery/treatment.
2. What is the causation of Ms. Egbert’s work restrictions. For
12
example, is the bilateral hand numbness related to the SIRVA or her
diabetes Type I?
It is my professional opinion that the BIL hand numbness is not
related the SIRVA diagnosis and related to her occupation. However,
continued aching and pain associated with her job duties as described
above is related to the SIRVA diagnosis. DM I also can contribute to
peripheral neuropathies of the UE and LE.
3. Should Ms. Egbert’s stated limitations to work only 2 days per
week be found valid and reliable given the type of SIRVA she experienced?
How about 1 days per week?
It is my professional judgement that altering days (ie. 1 day on/off for
a total of 2-3 days per week) would be appropriate given her diagnosis. This
may vary based on her work load throughout each shift and may be need
to be reduced to 1-2 days per week with high work loads and hours per day.
4. How much, if any, is Ms. Egbert’s Diabetes Type I playing a role
in her current capacity to work?
I have not seen any BG logs and she reports great control of her BGs
with her insulin pump/monitoring system. Type I DM was a contributing
factor for the initial diagnosis and treatment, but if the information on BG
control that she is reporting is accurate, it should not be affecting her current
capacity to work.
5. How much if any, is Ms. Egbert’s familial demands playing a role
in her current capacity to work?
I am unfamiliar with her familial demands from a clinical standpoint
and cannot comment on this matter.
Ex. 31 at 3. Additionally, PA Griggs suggested that Petitioner could undergo a “work
hardening regimen” to help increase her ability to work longer or more days, but this could
also potentially “exacerbate her inflammatory symptoms worsening her ROM and ability
to function normal at work.” Id. PA Griggs also noted that if Petitioner needed any further
legal documentation, she should follow up with Dr. Johnson “to determine long term
restrictions” because he “does a large amount of work assessments” for worker’s
compensation. Id.
Dr. Mortimer also prepared a supplemental expert report based on PA Grigg’s
March 29, 2024 examination and answers to her questions. Ex. C at 4. Dr. Mortimer first
expressed the opinion that Petitioner’s “complaints of significant shoulder pain do seem
somewhat inconsistent with [PA] Grigg’s physical exam,” which showed mild ROM
13
limitations but full strength. Id. However, Dr. Mortimer deferred resolution of this question
to the finder of fact. Id.
Next, based on PA Grigg’s suggestion that Petitioner could work between one to
three days per week, depending on workload and hours, and “taking the average of his
statement,” Dr. Mortimer opined that Petitioner was currently able to work two days per
week. Id. Dr. Mortimer assessed Petitioner’s pre-injury capacity as three days per week,
based on the average of her previous range between two and four days per week. Id.
Therefore, comparing these two figures, Dr. Mortimer concluded that Petitioner had
experienced a 33% reduction in work capacity from her injury.13 Id.
C. Petitioner’s Economic Expert – Robert Cook, Ph.D.
Petitioner’s economic expert, Robert Cook, holds a Ph.D. in Economics and has
been employed as a professor at the University of Richmond for 44 years. Ex. 29 at 1.
Relying on Dr. Schonbrun’s determination that Petitioner has suffered an annual loss of
earning capacity of $49,691.53, Dr. Cook calculated Petitioner’s total net lost earnings
through the end of her actuarial work life as $753,850.00, including past lost wages of
$142,045.00 from the date of vaccination through the date of the expert report. Ex. 27 at
4-6. Dr. Cook did not adjust Petitioner’s past lost wages to present value. Id. at 6.
Dr. Cook explained the elements that were used to reach this figure. First, Dr. Cook
distinguished between work life and retirement age and used a work life expectancy of
22.5 years because it is “unlikely that she will be employed full-time and continuously from
age 35 to age 67.” Id. at 6. A work life expectancy of 22.5 years accounts for “probable
interruptions in employment prior to her retirement age.” Id. at 6-7. Second, Dr. Cook
discounted the future net earnings to present value by using a variable after-tax discount
rate of 4.33 to 5.47 percent based on the yields on United States Treasury Notes and
Bonds as of the date of his report. Id. at 5; Ex. 8 at 1. Third, Dr. Cook adjusted Petitioner’s
future earnings using a variable tax rate between 16.2 and 19.2 percent. Ex. 28 at 1. Dr.
Cook provided several tables containing these calculations. See Ex. 28 at 1-5.
D. Respondent’s Economic Expert – Patrick Kennedy, Ph.D.
Dr. Patrick Kennedy provided a rebuttal report regarding Petitioner’s economic
losses. Dr. Kennedy holds a Ph.D. in Economics and is employed by the firm Stout, a
13
Dr. Mortimer did not alter her initial opinion that Petitioner’s pre-incident earning capacity was best defined
by the average of her 2015-2019 income brought to current dollars. Ex. C at 4.
14
global investment bank and advisory firm. Ex. B at 1. Like the other experts engaged in
this matter, Dr. Kennedy has submitted opinions numerous times in the Vaccine Program.
Dr. Kennedy relied on Dr. Mortimer’s opinion that Petitioner’s pre-incident earning
capacity is best represented by her average annual earnings from 2015 through 2019,
which he calculated as $50,924.00.14 Id. at 4. However, Dr. Kennedy did not provide a
final calculation of past and future lost wages because Dr. Mortimer had not yet submitted
her supplemental opinion. See id. at 5. Nonetheless, Dr. Kennedy opined on what
discounts and offsets should be used.
Specifically, Dr. Kennedy stated that he would apply a discount rate of 1.1 percent
to adjust future lost wages to present value. Id. Dr. Kenndy based this rate on his analysis
of the current and projected (as of December 2023) future interest rates, inflation, and
wage growth. Id. at 6-8. Based on Federal Reserve forecasts and historical rates, Dr.
Kennedy used a 1.50 percent net discount rate for consumer price inflation. Id. at 11. Dr.
Kennedy then considered that wage growth in the office of dentists has exceeded inflation
by approximately 0.4 percent over the past 20 years. Dr. Kennedy subtracted this amount
to reach a final net discount rate of 1.1. percent. Id. Dr. Kennedy disagreed with Dr. Cook’s
discount rates, stating that “current interest rates as of a particular day are not a reliable
basis to discount earnings loss damages particularly in the current economic
environment.” Id. at 12.
With regard to additional offsets, Dr. Kennedy stated that he would apply a 23
percent income tax rate to Petitioner’s annual earnings based on married filing jointly
status. Id. at 5. Dr. Kennedy also calculated Petitioner’s statistical work life expectancy
as 24.19 years, although her projected final separation from the workforce would be 30.39
years after vaccination. Id. at 4. Dr. Kennedy would thus multiply each year of Petitioner’s
future earnings by 0.80 (the ratio of 24.19 to 30.39) to “account for statistical worklife.” Id.
at 4.
On October 30, 2024, in conjunction with the parties’ simultaneous response
briefs, Respondent submitted a supplemental report from Dr. Kennedy. Dr. Kennedy
opined that Petitioner’s total potential economic loss is $377,029.00, consisting of
$72,181.00 in past lost wages and $304,848.00 in future lost wages. Ex. D at 2. Dr.
Kennedy reached this conclusion by starting with earnings of $50,924.00 per year over
30.19 years and applying the 80 percent work life adjustment, a wage growth rate, a 33
percent reduction based on Dr. Mortimer’s analysis, a 23 percent tax rate, and then a 1.1
14
Dr. Kennedy took Petitioner’s actual annual earnings and indexed them to 2020 dollars based on the
United States Bureau of Labor Statistics index for dental offices. Ex. B at 4.
15
percent net discount rate to reduce to present value. Id. at 1-2. Dr. Kennedy also reduced
past lost wages to present value. Id. at 7-8.
IV. Damages to be Awarded
A. Pain and Suffering
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 my prior discussion in Section II of Matthews v. Sec’y of
Health & Human Servs., No. 22-1396V, 2025 WL 2606607 (Fed. Cl. Spec. Mstr. Aug. 13,
2025).
In sum, 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 $250,000.00.” Section 15(a)(4). The petitioner bears the
burden of proof with respect to each element of compensation requested. Brewer v. Sec’y
of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec.
Mstr. Mar. 18, 1996). 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.15
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 that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing the analysis in this case, I review the record as a whole to include
the medical records, declarations, and all other filed evidence, plus the parties’ briefs and
other pleadings. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
Petitioner seeks a pain and suffering award of $160,000.00. Pet’r Br. at 11-15. In
support, Petitioner cites Bryant ($140,000.00), Monson ($155,000.00), and Anglewicz
15
I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr.
May 14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir.
1995)).
16
($130,000.00).16 Id. Petitioner argues that her injury and treatment were more severe than
in these cases, thus meriting a higher award. See id. Respondent instead proposes an
award of $125,000.00, relying on Walker ($122,000.00), Stoliker ($120,000.00), and
Rafferty ($127,500.00).17 Overall, Petitioner’s cases are the most appropriate
comparators, but there is no basis for finding her circumstances to be significantly worse.
For the reasons stated below, I will award $140,000.00.
The severity and duration of Petitioner’s treatment has strong similarities to Bryant.
The Bryant petitioner was 17 years old high school senior at the time of vaccination and
a competitive hockey player. Bryant, 2024 WL 1739776, at *1. She sought treatment
within two weeks and then treated “consistently, but conservatively, for the first seven
months after vaccination.” Id. at *7. During this time period, she was prescribed
gabapentin, but did not pursue formal PT or steroid injections, and was able to play
hockey and exercise daily. Id. at *2. The Bryant petitioner then had a treatment gap of 18
months until she went to the emergency room complaining of constant right shoulder pain.
Id. Thereafter, she “endured aggressive treatment, including a steroid injection before
arthroscopic surgery and eight post-operative physical therapy sessions over the
following year.” Id. at *7. The Bryant petitioner’s SIRVA treatment spanned three years
and she “continued to experience ongoing sequelae (pain and stiffness) since the end of
her treatment and argues that her shoulder deficits are permanent.” Id.
Both the Bryant petitioner and Petitioner in the instant case experienced waxing
and waning symptoms, with periods of improvement mixed with exacerbation, over
several years without a full resolution. Further, as in Bryant, Petitioner’s injury caused a
“substantial” impact on her employment and on the enjoyment of daily life activities. Id. at
*8. Although Respondent attempts to distinguish Bryant on the basis that Petitioner was
not a college student, see Resp’t Reply Br. at 2, this difference in age does not prevent a
comparison between the impact on the Bryant petitioner’s studies and athletic skills, on
one hand, and on Petitioner’s employment as a dental hygienist, ability to care for her
children, and hobbies like bow hunting, on the other. Additionally, I give weight to the fact
that Petitioner’s post-operative recovery was complicated by an infection, which required
16
Bryant v. Sec’y of Health & Hum. Servs., No. 21-2241V, 2024 WL 1739776 (Fed. Cl. Spec. Mstr. Mar.
20, 2024); Monson v. Sec’y of Health & Hum. Servs., No. 20-1350V, 2023 WL 2524059 (Fed. Cl. Spec.
Mstr. Mar. 15, 2023); Anglewicz v. Sec’y of Health & Hum. Servs., No. 20-1504V, 2024 WL 2702415 (Fed.
Cl. Spec. Mstr. Feb. 8, 2024).
17
Walker v. Sec’y of Health & Hum. Servs., No. 19-919V, 2021 WL 6425322 (Fed. Cl. Spec. Mstr. Dec. 7,
2021); Stoliker v. Sec’y of Health & Hum. Servs., No. 17-0990V, 2020 WL 5512534 (Fed. Cl. Spec. Mstr.
Aug. 7, 2020); Rafferty v. Sec’y of Health & Hum. Servs., No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec.
Mstr. May 21, 2020).
17
long-term antibiotics, and that these antibiotics themselves caused side-effects that
caused Petitioner to seek medical attention.
Although Petitioner urges that her injury should be considered even more severe
than in Bryant, this contention is not supported by the record. See Pet’r Br. at 15. The
descriptions of severe, constant pain set forth in Petitioner’s second declaration are
somewhat at odds with her reports of improvement to her treaters, particularly after her
surgery and while taking antibiotics. Further, some of Petitioner’s complaints may have
been caused by her distinct ulnar nerve condition. However, I also see no reason, as
Respondent contends, to award less than $140,000.00. See Resp’t Br. at 18. Although
her symptoms fluctuated, Petitioner’s condition represents a “moderate to severe SIRVA
injury of significant duration” that had a considerable impact on her daily life. See Bryant,
2024 WL 1739776, at *7. I find that Bryant provides persuasive guidance regarding the
compensation that should be awarded in these circumstances.
With regard to Petitioner’s other cited cases, Monson represents a more severe
SIRVA. Petitioner did seek treatment quicker than the Monson petitioner, but he received
42 PT sessions, four steroid injections, two MRIs, and then a more extensive surgery that
involved five different procedures. See Monson, 2023 WL 2524059, at *7. Even accepting
Petitioner’s argument that she may have received cortisone injections if not for her
diabetes, see Pet’r Br. at 15, an award at the level of Monson would not be appropriate
here.
Further, I agree with Petitioner that she experienced a more severe and lengthier
injury than in Anglewicz, but significantly more compensation should not be awarded
here. The Anglewicz 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.” Anglewicz, 2024 WL 2702415, at *5. The $130,000.00 awarded in Anglewicz
also took into account the “temporary stress and disruption to [p]etitioner’s role in running
a business.” Id. at *6. An award of $140,000.00 here, not the $160,000.00 requested by
Petitioner, reasonably accounts for her post-surgical infection and the effect on her
employment and family life.
I do not find Respondent’s cases to be sufficiently analogous to support an award
in a lower range. Although the Walker petitioner attended 54 PT sessions and received
multiple steroid injections, it appears that she delayed seeking surgery and had an
uncomplicated recovery. See 2021 WL 6425322, at *3-*4. In Stoliker, I found the
petitioner’s three and a half year treatment gap before she underwent surgery to be
suggestive of “an injury mild enough to tolerate for a long period of time.” See 2020 WL
5512534, at *3-*4. Rafferty is also distinct in that the petitioner’s SIRVA was significantly
18
improved by three months after surgery (eight months total after vaccination) and that her
post-surgery treatment ceased less than a year after vaccination. See 2020 WL 3495956,
at *14. These cases do not present similar factual scenarios, even if in certain instances
the individual petitioners received more of one type of treatment.
As stated above, given the circumstances of this case, I find it appropriate to award
$140,000.00 for pain and suffering.18
B. Lost Wages
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections”
when the injured party’s “earning capacity is or has been impaired by reason of such
person’s vaccine-related injury[.]” 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).
As an initial matter, Respondent questions whether any award of future lost
earnings is appropriate, since Petitioner could, theoretically, improve her earning
capacity. See Resp’t Br. at 34-35. Respondent relies on statements made by PA Griggs
that Petitioner’s shoulder “may or may get better in relation to her job moving forward,”
and the suggestion that she could undertake a “work hardening regimen.” Id. at 34 (citing
Ex. 20 at 7; Ex. 32 at 11). Respondent also points to Dr. Schonbrun’s statement that “[i]t
is possible that Ms. Egbert may benefit from a vocational rehabilitation plan to work in a
position outside of that of a dental hygienist due to her physical limitations,” and Dr.
Mortimer’s lay assessment that Petitioner’s complaints “seem somewhat inconsistent”
with PA Griggs’ final physical examination. See id. at 34-35.
The mere possibility that Petitioner’s condition could improve or that she has some
potential for retraining or increased earning capacity, however, is speculative. The record
demonstrates that despite attempts to return to work after the vaccination, Petitioner
ultimately ended up at a one day per week schedule. Due to the nature of her profession,
which requires holding her arms at or above shoulder height for long periods, her earning
capacity in the field of her chosen and demonstrated expertise has been, and will continue
to be, impaired by her SIRVA. Therefore, an award for both past and future lost earnings
18
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
19
is warranted. This leaves the question of what figures will be used for her pre- and post-
injury earning capacity.
1. Petitioner’s Pre-Injury Earning Capacity
As outlined in Section III, the parties’ experts do not agree on Petitioner’s pre-injury
earning capacity. Dr. Schonbrun opined that Petitioner’s full-time (or four days per week)
schedule, as she worked in 2015-16 and for part of 2020, was the best measure of her
ability to work pre-injury. Ex. 24 at 12. By contrast, Dr. Mortimer believed that Petitioner
might return to working part-time again in the future, and thus used the average of her
2015-19 earnings. Ex. A at 9-11.
Dr. Mortimer’s framing is based on speculation and assumptions about Petitioner’s
future behavior. In particular, although Petitioner has a large family, there is no evidence
that Petitioner’s familial demands would require her to return to a part-time schedule. See
id. at 11. Indeed, in March 2020, Petitioner had been hired back by Dr. Lewis, and her
intention was to end her period of being a stay-at-home parent. See Ex. 33 at 1. Dr.
Mortimer’s inclusion of these years in her average unfairly penalizes Petitioner for her
decision to temporarily leave the workforce. Further, there is no evidence that Petitioner’s
Type 1 diabetes or any other medical issue ever prevented her from working full-time.
See Ex. A at 10-11. There is thus no basis for Dr. Mortimer’s asserted expectation that
there will likely be future periods in which Petitioner “will either medically or psychosocially
need to work part-time.” See id.
Overall, Dr. Schonbrun’s analysis is better reasoned and better supported by the
record, in comparison to the reasoning of Dr. Mortimer. Dr. Schonbrun’s opinion is also
supported by the schedule that Petitioner was working at the time of her SIRVA. See Ex.
24 at 11-12. Petitioner had a demonstrated ability to work full-time when not voluntarily
choosing limited hours. See id. I therefore accept Dr. Schonbrun’s calculation that
Petitioner’s pre-injury earning capacity was a four-day per week schedule, amounting to
a total of $66,255.38.
2. Petitioner’s Post-Injury Earning Capacity
The parties’ experts also do not agree on Petitioner’s post-injury earning capacity,
with Dr. Schonbrun using a one-day per week schedule, and Dr. Mortimer using a two-
day per week schedule. See id. at 14; Ex. C at 4. Again, Dr. Mortimer’s opinion is less
convincing. Dr. Mortimer relied upon a myopic reading of the medical information that she
requested. PA Griggs stated that Petitioner could work two to three days per week, which
might need to be reduced to one to two days per week. Ex. 31 at 3. However, Dr. Mortimer
20
ignored that Petitioner did in fact reduce her schedule to one day per week, as PA Griggs
indicated would be reasonable, and instead took the average of these options.19 See Ex.
C at 4. Dr. Mortimer did not reconcile using a two-day per week schedule with Petitioner’s
inability to sustain this level of work.
Dr. Schonbrun’s opinion is based on Petitioner’s actual and demonstrated abilities.
As of July 2023, after attempting two days per week post-surgery, Petitioner found that
she needed to drop down to one day per week. Ex. 24 at 11; Ex. 33 at 1-4; Ex. 23.
Petitioner’s declaration makes clear that she would work more days if she was physically
capable of doing so – only working one day per week required her husband to find a
second job to make up for the lost income. See Ex 33 at 2. Therefore, I accept Dr.
Schonbrun’s calculation that $16,563.85 is a reasonable measure of Petitioner’s post-
injury earning capacity.
3. Net Discount Rate, Tax Rate, and Statistical Work Life
The parties further disagree on the net discount rate. The appropriate computation
of this rate has often been at issue in Vaccine Act claims. See Watkins v. Sec’y of Dep’t
of Health, Hum. Servs., No. 95-154V, 1999 WL 199057, at *4-*9 (Fed. Cl. Spec. Mstr.
Mar. 12, 1999) (discussing in detail the calculation of net discount rates and agreeing with
the method used by Dr. Kennedy). As I have previously held, Dr. Kennedy’s methodology
best comports with how this rate has been calculated in prior Vaccine Program cases.
See I.J. v. Sec’y of Health & Hum. Servs., No. 16-864V, 2024 WL 6970222, at *12 (Fed.
Cl. Mar. 28, 2024); see also Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024
WL 1235409, at *3 (Fed. Cl. Spec. Mstr. Feb. 20, 2024); Young v. Sec’y of Health & Hum.
Servs., No. 20-0496V, 2025 WL 3153999, at *7 n.31 (Fed. Cl. Spec. Mstr. Oct. 6, 2025).
I therefore find Dr. Kennedy’s 1.1 percent net discount rate to be more appropriate than
Dr. Cook’s variable rate, that averages close to five percent. However, the Vaccine Act
only requires that any award of compensation relating to future damages shall be reduced
to its net present value. Section 15(f)(4)(A).
Otherwise, neither of the parties’ economists provided much explanation regarding
their selected tax rate or statistical work life expectancy calculations, or what accounts for
the differences between them. Dr. Kennedy maintained that a 23 percent tax rate is based
on married filing jointly status and “Federal statistics of income data as well as Idaho,
19
Further, it is unclear why Dr. Mortimer gave such import to PA Griggs’ opinions. I appreciate that Petitioner
chose to pose Dr. Mortimer’s questions to PA Griggs, but his notes do not describe any background or
training in providing medical assessments regarding work capacity. In fact, PA Griggs suggested that Dr.
Johnson had more experience in determining long-term work restrictions. Ex. 31 at 3. As a PA, PA Griggs
was also not Petitioner’s “treating physician.” See Resp’t Br. at 30; Pet’r Reply Br. at 7.
21
FICA, and Medicare taxes,” with citations. Ex. B at 5. However, Dr. Cook merely stated
that the expected future income tax “varies with level of income” – but did not explain the
variable rate used in his attached calculations, which also appear to be missing a listed
sheet.20 See Ex. 27 at 5; Ex. 28 at 1. Dr. Kennedy’s tax rate is therefore better supported,
and will be applied.
As to statistical work life, it appears that both experts cited the same reference
article, yet arrived at different results. See Ex. B at 4 n.10,11; Ex. 27 at 3 n.8. Without
further information, I am unable to determine which figure is a better estimate of
Petitioner’s work life expectancy. Accordingly, the parties should attempt to resolve this
dispute themselves (consistent with the need to calculate lost past and future wages). If
the parties cannot reach an informal resolution of this issue, they shall propose further
briefing in the status report ordered below.
C. Out of Pocket Expenses
The parties agree that Petitioner has incurred $2,908.81 in past unreimbursable
expenses.
Conclusion
Based on my consideration of the record as a whole and for reasons set forth in
this ruling, I find that $140,000.00 represents a fair and appropriate amount of
compensation for Petitioner's actual pain and suffering. I also find that Petitioner is entitled
to past and future lost wages, in an amount to be calculated according to section IV.B.,
along with $2,908.81 in past unreimbursable expenses.
The parties shall file a joint status report updating me on their efforts to finalize the
award in this case by no later than February 16, 2026. In the status report, they should
estimate the amount of additional time needed to fully resolve the issue of damages, and
indicate if they have resolved the issue of work life expectancy.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
20
Dr. Kennedy also notes in his report that Dr. Cook overstates Petitioner’s lost wages by including a full
calendar year for 2020 and not starting from the date of vaccination. Ex. B at 12. I agree that any calculation
should begin on September 18, 2020.
22