# Cirello v. Secretary of Health and Human Services

> United States Court of Federal Claims · March 2, 2026

URL: https://www.frixlaw.com/law-library/cases/11269753

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 2, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11269753

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-478V

ARMANDO CIRELLO, Chief Special Master Corcoran

Petitioner, Filed: January 30, 2026
v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On April 6, 2023, Armando Cirello filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that he experienced Guillain Barré syndrome (“GBS”)
as the result of receiving an influenza (“flu”) vaccine on January 17, 2022. Petition at 1,
ECF No. 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters (the “SPU”), and although Respondent conceded entitlement, the parties could
not informally resolve damages on their own, so I ordered briefing on the matter.

For the reasons set forth below, I find that Petitioner is entitled to compensation in
the amount of $165,000.00, for actual pain and suffering, $5,979.19 in past lost wages,
and $6,176.24 in out-of-pocket medical expenses, for a total of $177,155.43.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am

required to post it on the United States Court of Federal Claims’ website in accordance with the
E-Government Act of 2002. 44 U.S.C. § 3501 note (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 (2012).
I. Legal Standard

Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).

There is no mathematic 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) (“[a]wards 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) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).

I may also consider prior pain and suffering awards to aid my 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.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) 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).

Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013).
Graves maintained that to do so resulted in “the forcing of all suffering awards into a global

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comparative scale in which the individual petitioner’s suffering is compared to the most
extreme cases and reduced accordingly.” Id. at 590. Instead, Graves 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. Under this alternative approach, the statutory cap merely cuts off higher pain
and suffering awards – it does not shrink the magnitude of all possible awards as falling
within a spectrum that ends at the cap. Although Graves is not controlling of the outcome
in this case, it provides reasoned guidance in calculating pain and suffering awards.

II. The Parties’ Arguments

The parties agree Petitioner should be awarded $6,176.24 for past unreimbursed
expenses. See Br. at 1, n.1; Resp. at 1, n.1. Thus, the only areas of disagreement are the
amounts of compensation which should be awarded for actual pain and suffering and past
lost wages. Petitioner seeks $185,000.00 for past pain and suffering, and $85,000.00 in
lost wages. Br. at 1. Respondent proposes a lesser award: $89,000.00 for pain and
suffering, and $5,979.19 in lost wages. Resp. at 1, 16.

In arguing for a significant pain and suffering award, Petitioner argues that his
medical records show a debilitating, “severe[,] and continuous injury that precipitated an
extended course of treatment that has never fully restored [him] to the state of health he
enjoyed prior to his January 17, 2022 flu vaccination.” Br. at 8. He describes his injury
course as a “grueling, long-term ordeal,” because his injury and course of treatment has
persisted for approximately 29 months, “with no foreseeable end in sight.” Id. at 9, 11. He
suspects his injury may be permanent and extend for the “rest of his life,” as he continues
to suffer from upper back pain, fatigue, numbness, and balance issues that make it difficult
for him to climb stairs and work in precision metal manufacturing. Id. at 11-12.

Petitioner favorably compares the duration and severity of his hospital stay and
medical treatment – consisting of a 16-day hospitalization at three different facilities,
diagnostic procedures (including an MRI, CT scan, EMG, lumbar puncture, and five-day
course of plasmapheresis), difficulties ambulating and with balance (requiring the aid of
a walker), and both in-patient and out-patient rehabilitation – with those experienced by
the petitioners in McCray, Johnson, and Fedewa, 3 all featuring past pain and suffering
awards of $180,000.00. Br. at 8-14. He insists that his injury and treatment course warrant
a greater award in past pain and suffering than the petitioners in his cited cases. Id. at
14.
3 McCray v. Sec'y of Health & Hum. Servs., No. 19-277V, 2021 WL 4618549 (Fed. Cl. Spec. Mstr. Aug. 31,

2021) (awarding $180,000.000 for past pain and suffering); Johnson v. Sec’y of Health & Hum. Servs., No.
16-1356V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 for past pain and
suffering); Fedewa v. Sec'y of Health & Hum. Servs., No. 17-1808V, 2020 WL 1915138 (Fed. Cl. Spec.
Mstr. Mar. 26, 2020) (awarding $180,000.00 for past pain and suffering).

3
With respect to lost wages, Petitioner asserts that his GBS has severely impacted
his business income, derived from ownership and operation of a precision metal shop.
Br. at 14. Petitioner contends that as a result of his hospitalization, he was unable to work
“for an extended period of time,” and when he returned weeks later, he required a walker.
Id. Because of the fatigue, pain, and the instability caused by his GBS, he “still cannot
work the number of hours he did prior to his vaccine injury[;]” which limits his ability to
meet deadlines. See id.; see also Ex. 16 ¶ 6. He thus works at a slower pace or requires
assistance to complete tasks. 4 Ex. 16 ¶ 6. As a result, this “negatively impacts the
profitability of [his] business.” Br. at 14-15 (citing Ex. 17). Accordingly, Petitioner has had
difficulty paying back business loans. See id. at 15; see also Ex. 16 ¶ 6.

Respondent, by contrast, emphasizes evidence showing Petitioner had a mild-to-
moderate course of GBS that required an 11-day hospital stay, four days of inpatient
rehabilitation, five rounds of plasmapheresis, and resulted in a “few longer-standing
sequela” requiring assistance with ambulation and activities of daily living (“ADLs”). Resp.
at 9. However, Respondent contends that after being discharged from inpatient
rehabilitation, Petitioner ultimately “made a complete recovery” within approximately five
months and has had “consistently unremarkable” neurologic exams since 2022 – with the
only evidence to the contrary coming from Petitioner, but unsupported by objective
findings. Id. at 10, 13.

As guidance, Respondent cites two other decisions featuring pain and suffering
awards of $92,500.00 and $95,000.00, respectively - Granville and Geschwindner. 5
Resp. at 11-12. Respondent also contends that Petitioner’s clinical course was less
severe than the petitioners in the cases he relied upon for support. Id. at 12-13.

In regard to past lost wages, Respondent highlights that Petitioner’s requested
sum is based on a calculation of the difference in “sales revenue” from his business post-
vaccination versus before his injury, and “vague[ly]” refers to his loss of a business loan.
Resp. at 15 (citing Br. at 14-15). But Respondent deems this calculation to be “speculative
at best.”6 Id. More so, the Act does not “contemplate compensating lost sales revenue; it

4 Specifically, Petitioner describes difficulties with carrying objects and climbing ladders/stairs and
equipment. Ex. 16 ¶ 2. He also notes that he cannot work a full day as a result of his fatigue and pain in his
feet. Id. ¶ 4.

5 Granville v. Sec’y of Health & Hum. Servs., No. 21-2098V, 2023 WL 6441388 (Fed. Cl. Spec. Mstr. Aug.

30, 2023). Although Petitioner provides a Westlaw cite of 2022 WL 177372 for Geschwindner, that January
28, 2022 decision was withdrawn in response to the granting of Petitioner’s request for post-judgment relief.
See Geschwindner v. Sec'y of Health & Hum. Servs., No. 17-1558V, 2022 WL 22942770 (Fed. Cl. Spec.
Mstr. Oct. 11, 2022).

6 Respondent stresses that Petitioner has not consulted with an economist in arriving at a calculation for

past lost wages and his Exhibit 17 “contains a series of primary source documents that do not delineate
[P]etitioner’s proposed calculation of lost earnings or an offset for applicable taxes.” Resp. at 16.

4
permits compensating lost earnings,” and revenue and earnings are “distinct
measurements.” Id. (citing Section 15(a)(3)(A); Merriam-Webster’s Online Dictionary,
defining “Earnings” and “Revenue”) (emphasis in original). As such, Respondent
contends Petitioner cannot demonstrate his lost wages from that time are $85,000.00.

Petitioner replies that as a result of his GBS, he experienced a loss of actual and
anticipated earnings as a small business owner. Reply at 6. Specifically, he was unable
to operate his business for an extended period of time, and, when he was able to return,
his instability reduced his productivity. Id. Petitioner maintains that “there is no logical
rationale for concluding that a loss of business revenue is in any way different from a loss
of any other type of job-related earnings.” Id. He thus seeks the difference in his sales
revenues between years 2022 and 2023 ($253,513.96 - $169,466.96 = $85,000.00). Id.

III. Appropriate Compensation for Petitioner’s Past Pain and Suffering

In this case, awareness of the injury is not disputed. Petitioner was a competent
adult with no impairments that would impact his consciousness of his injury. Therefore, I
analyze principally the severity and duration of the injury. When performing this analysis,
I review the record as a whole, including the medical records and declarations filed, and
all assertions made by the parties in written documents.

Petitioner’s medical records and declarations provide a credible description of his
GBS injury, which featured a moderately-severe acute phase requiring admission to the
hospital within roughly one-and-a-half months of vaccination (on March 2, 2022). 7 At this
time, Petitioner had a few weeks’ history of a cough, myalgias, and fever, and his lower
extremity weakness was so severe he could not stand on his own (and had soiled himself
because he was unable to get to the bathroom); he also had slurred speech, blurred
vision, abdominal and lower back pain – requiring the use of a walker for ambulation. See,
e.g., Ex. 4 at 55, 76.

Following admission, Petitioner’s ongoing symptoms resulted in a twelve-day
hospitalization (through March 14, 2022); treatment at increasingly higher-level facilities
(including the intensive care unit); diagnostic procedures including MRIs, CT, lumbar
puncture (and later an EMG); five rounds of plasmapheresis, prescription medications
(including azithromycin and ceftriaxone for treatment of a concurrent bronchitis infection);
modified diet of thin solids and liquids; discharge to four days of in-patient rehabilitation

Respondent further notes that he has independently consulted with a broker in arriving at his proposed
amount for past lost wages, $5,979.19. Id. at 16, n.4.

7 Prior to this date, Petitioner went to the emergency room on several occasions (for a cough, headache,

vomiting) but was not admitted, including on February 26 and 28, 2022. Ex. 7 at 3, 34. Petitioner also had
a telehealth visit on February 22, 2022. Ex. 9 at 5.

5
(with physical and occupational therapies (“PT”/“OT”); and continued assistance with
ADLs and ambulating 8 at the time of discharge to outpatient PT 9 on March 18, 2022. See,
e.g., Ex. 4 at 15, 31, 55, 66; Ex. 6 at 41, 57; Ex. 12 at 60, 85.

As of result of this hospitalization (and his preceding symptoms prior to
hospitalization), Petitioner had to “close [his] business” (a precision metal manufacturing
shop) thus costing him “personal and business income” during this time. Ex. 13 ¶ 2. This
also caused Petitioner stress and anxiety about his ability to repay loans, and he
ultimately deferred/was in forbearance on unidentified loans. See id. ¶ 5, 8-9; see also
Ex. 16 ¶ 6. Within “[a] few weeks” of his in-patient discharge, he returned to work “to a
very limited extent and could only be there for a few hours at a time[;]” he sat in a chair,
used a walker, and directed work to his employees in order to keep his business open.
Ex. 13 ¶ 7.

Petitioner reported improvement after his initial treatment course. He was able to
ambulate by himself, albeit with a cane, by the time of his first out-patient neurology visit
on March 31, 2022 (approximately two weeks post in-patient discharge). Ex. 4 at 4.
Specifically, at the time of Petitioner’s March 31, 2022 neurology visit, he reported “his
walking is improving, vision is improving as well . . . numbness and tingling in fingers and
feet [] has improved . . . dysphagia, slurred speech and abdominal cramps . . . had
resolved.” See id. The treater opined Petitioner’s GBS was “slowly improving[;]” but that
Petitioner had ongoing GBS-related symptoms at this time, including with coordination,
balance, weakness, and fatigue. Id. at 4-5.

By mid-July 2022, when Petitioner sought the opinion of a second neurologist, his
condition continued to improve, and his strength and reflexes were normal upon
examination. Ex. 10 at 5-6. Indeed, on July 14, 2022, Petitioner’s treating neurologist
opined that his GBS “appears essentially resolved” – aside from some “mild decreased
sensation in the feet” and some weakness, which was felt could be due to a lack of
endurance. See id. Still, Petitioner continued to attend regular neurology follow-up visits
– including with a third and later fourth neurologist – throughout 2022 and into early 2023
for treatment of residual effects of his GBS (i.e., back pain, numbness and tingling in his
feet, balance issues, and weakness). Ex. 10 at 9-13, 15-17; Ex. 11 at 4-6; Ex. 14 at 1-2.

Although I credit Petitioner’s assertions that he currently continues to experience
some ongoing sequelae of his GBS (including numbness, pain, fatigue, and balance
issues (e.g., Ex. 13 ¶ 9; Ex. 16 ¶ 2)), his GBS recovery has been good overall – a fact

8 Specifically, Petitioner required “minimal” assistance with ADLs; one person assistance with ambulation;

and overall assistance with bathing, dressing, toileting, and transferring from bed to chair. Ex. 6 at 41.

9 No records from any of Petitioner’s treatment with out-patient PT have been filed for consideration.

6
supported by his medical records. See, e.g., Ex. 10 at 5-6 (discussed above); see also
Ex. 11 at 4-6; Ex. 14 at 1-3 (another neurologist opining on February 15 and March 27,
2023, that Petitioner’s GBS was “stable[;]” he was “recovering well” with no ongoing or
additional treatment recommended to manage his symptoms; examination consistent
with normal gait and coordination, strength, reflexes, and sensation). Indeed, on June 27,
2023, though Petitioner’s issues with “imbalance and thoracic pain [were] still present,”
they had “much improved” and Petitioner “[d]eclined new medicines” to treat these
ongoing symptoms. Ex. 14 at 5-6. Additional imaging was also deferred “given [the]
improvement” and the plan was to monitor Petitioner’s progression. Id. at 7-8.

Thereafter, Petitioner did not return to care for six months (on January 31, 2024).
While he still had noted balance issues and back pain “present AFTER GBS,” the
conditions were “much improved” and again Petitioner declined medications. 10 Ex. 15 at
1 (emphasis in original). It is notable that Petitioner did not attend any additional medical
visits after this date - and interestingly, he attended this, and several other neurology
follow ups, well into the pendency of the present action (with the Petition having been
filed on April 6, 2023). I therefore will not rely heavily on this stand-alone January 2024
visit in assessing the duration of Petitioner’s injury. I thus find the record overall supports
the conclusion that Petitioner’s vaccine-related GBS was ongoing through approximately
June 2023 (or for approximately 16 months post onset) 11 – though with some mild
lingering effects of balance issues, fatigue, and back pain.

Based upon the forgoing, and considering the parties’ written arguments, I find that
Petitioner suffered a moderate GBS injury – although as a class GBS injuries are
distinguishable in severity from many other kinds of common Program vaccine injuries.
GBS constitutes a particularly frightening type of vaccine injury – and as a result, a higher-
than-average pain and suffering award is usually appropriate. See Gross v. Sec’y of
Health & Hum. Servs., No. 19-0835V, 2021 WL 2666685 at *5 (Fed. Cl. Spec. Mstr. Mar.
11, 2021).

At the same time, however, the considerations that always impact determination
of a proper pain and suffering award – level of pain, length of hospitalization and inpatient
rehabilitation, degree and number of procedures for treatment, duration of treatment, and
overall recovery – bear herein on what Petitioner should receive. Some GBS injuries
feature permanent disabilities, while others are characterized by a better recovery. Here,

10 I give some weight to Petitioner’s contention that this decline of medications could have been (at least

partially) due to a concern regarding the side effects of certain medications. Ex. 16 ¶ 3.

11 The onset of Petitioner’s GBS supported in the contemporaneous medical records (and agreed upon by

Respondent) was around 24 days post vaccination, or around approximately February 10, 2022. See, e.g.,
Resp. at 3; Ex. 4 at 76. Petitioner immaterially alleges a different onset date – around February 25, 2022.
Br. at 9.

7
Petitioner’s GBS injury required moderate acute medical treatment, including one 16-day
hospitalization/inpatient treatment; it impacted his ability to run his own business or
maintain the same level of work for an extended period of time; and he required the use
of a walker and/or cane to assist with ambulation (and ADLs) for some time following his
acute phase. However, his subsequent condition is much improved, even accounting for
some lingering deficits common to GBS’s aftermath (balance issues, fatigue, pain). Thus,
Petitioner’s overall treatment course has therefore been moderate compared to many.
And, Petitioner’s case is not as severe as the worst GBS cases, wherein injured parties
often remain non-ambulatory or significantly disabled.

Turning to the parties’ cited comparable cases, Respondent’s citations are
somewhat unhelpful, since they do not set forth all that well when a sub-six figures pain
and suffering award would be appropriate in the context of a GBS injury. Petitioner
certainly ought to be awarded more than in Granville. No. 21-2098V, 2023 WL 6441388
(Fed. Cl. Spec. Mstr. Aug. 30, 2023). That petitioner experienced a mild acute phase (and
GBS injury overall), including a five-day hospitalization, no in-patient care, and very little
out-patient care – followed by a “quick and full recovery,” with admittedly no lingering
sequelae. See id. Here, Mr. Cirello’s course included substantially more care in the acute
phase, with persistent and lingering residual effects. These distinguishing factors alone
entitle Petitioner to a larger sum than $92,500.00, as awarded in Granville. Likewise, the
$95,000.00 awarded in Geschwindner is comparably insufficient, as that petitioner was
hospitalized for a shorter duration (three total days versus Petitioner’s 16), received no
inpatient rehabilitation, and did not undergo infusions (including with IVIG or
plasmapheresis) or an LP – thus speaking to a significantly milder injury than Petitioner’s
here. No. 17-1558V, 2022 WL 22942770 (Fed. Cl. Spec. Mstr. Oct. 11, 2022). Petitioner
is thus entitled to a higher award than that proposed by Respondent.

Petitioner’s comparables are better, but still involve damages awards slightly
higher than what is warranted here, as the injured parties in those cases (where pain and
suffering awards were $180,000.00), experienced worse acute phases of their injuries,
had extended treatment, or had prognoses requiring ongoing medication. See, e.g.,
McCray v. Sec'y of Health & Hum. Servs., No. 19-277V, 2021 WL 4618549 (Fed. Cl.
Spec. Mstr. Aug. 31, 2021); Fedewa v. Sec’y of Health & Hum. Servs., No. 17-1808V,
2020 WL 1915138, at *6 (Fed. Cl. Spec. Mstr. Mar. 26, 2020). Indeed, in Program cases
where more than $175,000.00 is awarded, the injured parties tend to have experienced
ongoing and obviously severe residual symptoms, and not just the kind of sequelae
common in the aftermath of GBS. And many petitioners have faced permanent limitations
on the nature of the work they could perform. I recognize that Petitioner has some long-
lasting sequelae from his GBS that impacted his work to some degree (including with
productivity), but they do not appear to be as severe as those cases cited by Petitioner.
In fact, Petitioner’s neurologist specifically stated that Petitioner’s GBS was “essentially

8
resolved” and that he was “recovering well.” See, e.g., Ex. 10 at 5-6; Ex. 11 at 4-6; Ex. 14
at 1-3.

The McCray petitioner, for example, was hospitalized for 12 days (akin to Petitioner
here) but subsequently underwent a 21-day inpatient stay, thus considerably longer than
Petitioner’s four-day inpatient stay, and had at least one month of outpatient care,
including with rehabilitative therapy. See 2021 WL 4618549. Both the petitioner in McCray
and Mr. Cirello required assistance with ambulation and/or balance following their
discharge from inpatient care (including the use of a cane), and they each experienced a
general, slow improvement over time. See id. However, the McCray petitioner’s residual
sequelae documented in the medical records (i.e., fatigue, pain, and balance issues)
extended for more than four years post onset, and she never returned to her baseline or
regained complete independence with ADLs. Id. In fact, the McCray petitioner was unable
to return to her part-time job, she could not participate in activities she once enjoyed, and
she required ongoing use of medications (including an inhaler to treat the asthma she
developed from her GBS) and a cane for ambulation as a result of her ongoing
symptomology. Id. Petitioner is thus entitled to a lesser award.

The remaining two cases cited by Petitioner (Fedewa and Johnson) were decided
by another special master and outside of the SPU context. I accordingly give these cases
slightly less weight in assessing damages in this situation (since SPU has been
attempting for more than five years to systematize awards, in order to ensure better
overall conformity) but will nevertheless discuss some distinguishing features. The
Fedewa petitioner, as here, experienced a somewhat lengthy stay in the hospital and/or
inpatient rehabilitation, but had a disease course that was more severe and involved
significantly more treatment, along with long-term medications to manage symptoms. See
2020 WL 1915138. And although both the petitioner in Fedewa and Mr. Cirello
experienced disruptions to their employment as a result of their injuries, Petitioner
returned to work within a few weeks of his onset and acute phase, whereas the Fedewa
petitioner could not return to work (or drive) for over three months – and when that
individual did, he required ongoing weightlifting restrictions as prescribed by his treaters.
Id. While I credit that Petitioner has ongoing limitations as a result of his injury, including
challenges running his own precision metal shop, he is deserving of a slightly lesser
award.

Similarly, the Johnson petitioner’s acute course included IVIG, in-home PT, and
over 45 personal training sessions; compounded by the difficulties in travel associated
with the petitioner’s rural geographic location. See No. 16-1356V, 2018 WL 5024012
(Fed. Cl. Spec. Mstr. July 20, 2018). The Johnson petitioner’s residual effects included
fatigue, numbness, and incontinence, to the point that she required always keeping a
spare change of clothes with her out of fear of not knowing when she required use of the

9
bathroom. See id. The Johnson claimant was forced to modify her role from a bus driver
to a librarian (with modified/lesser duties) as a result of her ongoing GBS sequelae. Id.
While Petitioner also experiences ongoing disruptions or alterations to his standard
practices in his precision metal shop, he has not shown by a preponderance that he has
had to abandon his prior line of work or significantly change the way he conducts or
completes his business (other than slowing down his productivity/requiring additional
assistance), sufficient to justify this high of a pain and suffering award. Still, such factors
will be taken into account in determining a proper award in this case.

Although Petitioner enjoyed a greater and fairly complete recovery following his
approximate 16-month course compared to some of the petitioners in the cases he relies
upon for support, he continues to suffer from some long-term, lingering effects of his GBS
(including balance issues, pain, and fatigue). Petitioner has demonstrated that as a result
of these symptoms, he has to work slower and/or requires assistance to complete work
tasks and jobs that he would have usually done himself (as this work requires
coordination, lifting, and climbing stairs and ladders) – thus limiting his work productivity
and profitability. Still, he continues to run his own business, performing some tasks
himself.

Petitioners in the Program who have also undergone similar real-life injury impacts
have received higher pain and suffering awards. See, e.g., Gruba v. Sec’y of Health &
Hum. Servs., No. 19-1157V, 2021 WL 1925630 (Fed. Cl. Spec. Mstr. Apr. 13, 2021)
(awarding $165,000.00 in a moderate GBS case involving a petitioner who left a job at a
childcare facility because she was unable to handle the physical demands of her position
as a result of her residual numbness, and she could no longer receive future vaccinations
as a result of her GBS). Petitioner’s decreased hours and change in work productivity
caused by his physical limitations speak to his pain and suffering and thus are separate
and apart from his lost wages. See, e.g., Johnson, 2018 WL 5024012 (noting that the
petitioner’s inability to work and her change in work hours as a result of her GBS
symptoms are distinct issues that are separate and apart from her request for lost wages).
I find that Petitioner’s alteration in work practices, including working at a slower pace, and
the overall uncertainty surrounding his business and his ability to repay loans as a direct
result of his injury thus warrants a larger pain and suffering award in this case.

For these reasons, although I do not find that the GBS injury and its sequelae were
of such high severity to justify an award of the magnitude requested by Petitioner, the
actual pain and suffering component will nonetheless be higher than in many vaccine
injury cases, simply for the reason that the severe and frightening quality of an immune-
mediated injury like GBS warrants commensurate damages. I therefore award actual pain
and suffering of $165,000.00.

10
IV. Appropriate Compensation for Petitioner’s Past 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,”
where 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). The calculation of lost earnings
damages must be performed in a “cautious manner” in accordance with generally
recognized principles and projections.” Brown v. Sec’y of Health & Hum. Servs., No. 00-
182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2005) (citing Section
15(a)(3)(A)).

Compensation awarded for a petitioner’s anticipated loss of earnings may not be
based on speculation. J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2015 WL
5954352, at *7 (Fed. Cl. Spec. Mstr. Sept. 17, 2015) (indicating Section 15(a)(3)(A) “does
not envision that ‘anticipated loss of earnings’ includes speculation” and denying to
calculate lost wages on a planned business venture); Dillenbeck v. Sec’y of Health &
Hum. Servs., 147 Fed. Cl. 131, 139 (2020) (citing J.T., 2015 WL 5954352, at *7).
Accordingly, it is not enough to substantiate such a request with some evidence, if the
submissions offered ultimately rely on speculated (if somewhat informed) “guesses” about
what a claimant might have earned under optimal conditions. See, e.g., Moreland v. Sec’y
of Health & Hum. Servs., No. 18-1319V, 2021 WL 10469047 (Fed. Cl. Spec. Mstr. Sept.
2, 2022) (denying injured real estate agent’s claim of lost commissions; although
petitioner substantiated her claim with evidence, she could not demonstrate her
expectation of commissions or other real estate-related income was more than a
reasoned hope, as such calculations were rooted in speculation rather than generally
recognized actuarial evidence and projections required by the Act).

As the parties correctly identify, the term “earnings” is not defined within the
Vaccine Act. See Resp. at 14-15; see also Reply at 5-6. Interpretation of Section
15(a)(3)(A) for loss of earnings among adults has begun with the premise that earnings
are indeed “[r]evenue gained from labor or services, from the investment of capital, or
from assets.” Eilan v. Sec’y of Health & Hum. Servs., No. 15-381V, 2024 WL 4222583, at
*6 (Fed. Cl. Spec. Mstr. Aug. 15, 2024); Heinzelman v. Sec'y of Health & Hum. Servs.,
98 Fed. Cl. 808, 816 (2011) (quoting BLACK’S LAW DICTIONARY 548 (9th ed. 2009)),
aff'd, 681 F.3d 1374 (Fed. Cir. 2012).

Special masters have considered this issue in various forms and have arrived at
differing conclusions concerning what meets the definition of “earnings” under the Act.
See, e.g., Bryan v. Sec'y of Health & Hum. Servs., No. 14-898V, 2024 WL 3797739, at
*16 (Fed. Cl. Spec. Mstr. July 15, 2024) (concluding that Social Security retirement
income is a form of “earnings” for purposes of a loss of earnings claim under the Vaccine

11
Act, explaining that “Social Security retirement income is paid to members during
retirement years based on their work history, contributions, and retirement age. It is
revenue gained from labor. Further, it is subject to federal income tax, depending on the
income level of the recipient.”); But see Watkins v. Sec'y of Health & Hum. Servs., No.
95-154V, 1999 WL 199057, at *3 (Fed Cl. Spec. Mstr. Mar. 12, 1999) (expressing doubt
that the term “weekly earnings,” as used in Section 15(a)(3)(B), includes Social Security);
see also Gross v. Sec’ of Health & Hum. Servs., 154 Fed. Cl. 109 112 (2021) (finding it
was not an abuse of discretion for the special master to conclude that use of a paid time
off (“PTO”), identified as an employment benefit, constituted a loss of earnings under the
statute even though the evidence did not “definitively show that petitioner's unused PTO
would be paid out”). As the prior caselaw demonstrates, what constitutes a “loss of
earnings” in the Program varies but is largely limited to what can be quantified, without
speculation.

Petitioner requests $85,000.00 in past lost wages, relying on the calculation
between the difference in sales revenue from years 2022 to 2023. Br. at 14-15; Reply at
6. In support, Petitioner submitted evidence of his tax documents and returns dating back
to 2017. See generally Ex. 17. While I credit Petitioner’s argument that the Act surely
does not intend to penalize small business owners by barring them from obtaining the
same compensation to which non-business owners are entitled (Reply at 6), I am unable
to find that lost sales revenue can be deemed equivalent to lost wages, without a better,
objectively-supported showing that they are.

In general, special masters have noted that the purpose of an award of lost
earnings is to provide the claimant with income lost as a result of a vaccine injury. Sarver
v. Sec'y of Health & Hum. Servs., No. 07-307V, 2009 WL 8589740, at *10 (Fed. Cl. Spec.
Mstr. Nov. 16, 2009) (“The lost wage component replaces the income that the injured
party would have earned and then used to support himself (or herself).”). Petitioner here
was out of work for a defined period. While Mr. Cirello has shown that he earned less in
sales revenue between 2022 and 2023 (e.g., Ex. 17), he has not offered sufficient
objective proof that would corroborate his contention that the decrease in revenue was a
direct result of Petitioner’s vaccine-related injury, all other things being equal. It is
speculation to assume Petitioner would have earned the same in sales revenue from year
to year, and/or that but for his injury his revenue would have been higher. There are in
fact endless reasonable explanations for a less profitable year. 12 Accordingly, Petitioner’s
revenue calculation is too speculative in nature to embrace.

Respondent’s calculation of the sum of lost wages ($5,979.19) is plainly better-
supported. See Resp. at 16, n.4. The amount proffered by Respondent is not based on

12
Petitioner noted, for example, that his business had not fully recovered after the COVID-19 Pandemic -
and the vaccination at issue occurred in this subsequent timeframe. Ex. 13 ¶ 8.

12
speculation of what Petitioner hoped he would have made under optimal conditions during
that time frame had he not suffered from vaccine-related GBS, but rather is based on the
earnings Petitioner actually lost during the time he was out of work as a direct result of
his hospitalization and injury. Petitioner is thus entitled to past lost wages in the amount
of $5,979.19.

CONCLUSION

In light of all of the above, I award Petitioner a lump sum payment of
$177,155.43, (representing compensation for actual pain and suffering, past lost
wages, and out-of-pocket expenses) to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This
amount represents compensation for all damages that would be available under Section
15(a) of the Vaccine Act. Id.

The Clerk of the Court is directed to enter judgment in accordance with this
Decision. 13

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

13 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11269753. Public record. Not legal advice.