# Hickey v. Secretary of Health and Human Services

> United States Court of Federal Claims · August 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11422194

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 20, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1922V

BARBARA HICKEY,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 20, 2026

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Rachel L. Brown, Siri & Glimstad LLP, Kansas City, MO, for Petitioner.

Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On December 21, 2020, Barbara Hickey filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). 3 Petitioner alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving an influenza (“flu”)
vaccine on September 19, 2019. Petition at 1 The matter was assigned to the “Special
Processing Unit” (the “SPU”), and following briefing from the parties, on March 28, 2025,
I ruled that Petitioner was entitled to compensation for her injury. (ECF No. 36). The

1 Because this Decision 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).
3 Ms. Hickey filed an Amended Petition on July 8, 2022, providing additional detail and medical record

citations. ECF No. 22.
parties were unable to informally resolve the issue of damages, however, and following
further briefing from the parties, the matter is now ripe.

For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount of $47,000.00, for her past pain and suffering.

I. Legal Standard – Pain & Suffering

Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.00” 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

2
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
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. Prior SIRVA Compensation Within SPU4

A. Data Regarding Compensation in SPU SIRVA Cases

SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2026, 5,790 SPU SIRVA cases have been resolved since the inception of SPU
more than ten years before. Compensation has been awarded in the vast majority of
cases (5,575), with the remaining 215 cases dismissed.

3,139 of the compensated SPU SIRVA cases were the result of a ruling that the
petitioner was entitled to compensation (as opposed to an informal settlement), and
therefore reflect full compensation as warranted by the record. 5 In only 392 of these
cases, however, was the amount of damages determined by a special master in a
reasoned decision or ruling. 6 As I have previously stated, the written decisions setting

4 All figures included in this decision are derived from a review of the decisions awarding compensation

within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.

5 The remaining 2,436 compensated SIRVA cases were resolved via stipulated agreement of the parties

without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.

6 The rest of these cases resulting in damages after concession were either reflective of a proffer by

Respondent (2,710 cases) or stipulation (37 cases). Although all proposed amounts denote some form of
agreement reached by the parties, those presented by stipulation derive more from compromise than

3
forth such determinations, prepared by neutral judicial officers (the special masters
themselves), provide the most reliable guidance in deciding what similarly-situated
claimants should also receive. 7

The data for all categories of damages decisions described above reflect the
expected differences in outcome, summarized as follows:

Damages Proffered Stipulated Stipulated 8
Decisions by Damages Damages Agreement
Special Master
Total Cases 392 2,710 37 2,436
Lowest $25,000.00 $4,000.00 $37,013.60 $1,000.00
1 Quartile
st $64,811.00 $57,596.44 $82,181.20 $30,000.00
Median $85,973.93 $76,428.29 $109,582.59 $46,000.00
3 Quartile
rd $125,007.45 $105,000.00 $160,000.00 $72,000.00
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00

B. Pain and Suffering Awards in Reasoned Decisions

In the 392 SPU SIRVA cases in which damages were determined via reasoned
decision or ruling, compensation for a petitioner’s actual or past pain and suffering varied
from $25,000.00 to $215,000.00, with $85,000.00 as the median amount. Only eleven of
these cases involved an award for future pain and suffering, with yearly awards ranging
from $250.00 to $1,500.00. 9 In one of these cases, the future pain and suffering award
was limited by the statutory pain and suffering cap. 10

instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
7 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or

proffer) must still be approved by a special master, such determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases,
these determinations nevertheless “provide some evidence of the kinds of awards received overall in
comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed
upon by the parties and cases in which damages are determined by a special master).

8 Two awards were for an annuity only, the exact amounts which were not determined at the time of

judgment.

9 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.

Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).

10 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr.

Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in
Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A));
see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the

4
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.

Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In nine cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.

III. The Parties’ Arguments

The only issue for resolution is the amount of compensation which should be
awarded for Petitioner’s pain and suffering. Petitioner seeks $65,000.00, while
Respondent has not proposed a particular amount but argues that Petitioner’s SIRVA
was mild, meaning she should receive an award “consistent with previous mild cases”
having awards ranging from $25,000.00 to $45,000.00. Response at 9-12.

Petitioner characterizes her injury as a moderate (and at times severe) SIRVA.
Reply at 1, 4. She particularly emphasizes the pain levels she experienced, which could
reach up to 10/10 after some workdays, as well as her unique circumstances with her

application of the statutory cap before any projected pain and suffering award is reduced to net present
value).

5
employment as a travel nurse rendering her unable to seek treatment sooner than she
did despite her efforts. Brief at 7.

Petitioner favorably compares the facts and circumstances in her case to those
suffered by the petitioners in Horton, Tully, Felton, and Rayborn 11 - decisions featuring
past pain and suffering awards ranging from $55,000 to $64,000.00. Brief at 8-11. The
$65,000.00 she requests is reasonable compared to those cases because they all
involved substantially similar amounts of overall treatment, although Petitioner
emphasizes that her high pain levels due to having to work through the pain warrant a
slightly higher amount than any cited case.

In contrast, Respondent argues that “[P]etitioner’s overall injury was mild.” Resp.
at 5. Respondent emphasizes the approximately five-month delay in seeking treatment
for her injury, and the relatively limited amount of treatment that Petitioner received (one
steroid injection and four PT sessions). Id. Respondent does not argue for a specific dollar
amount for pain and suffering in the instant cases, but requests an award consistent with
awards in other mild SIRVA cases. Id. Respondent has also included a chart of 17 cases
he considered to involve mild SIRVA injuries with pain and suffering awards ranging from
$25,000.00 to $45,000.00. Id. at 9-11.

IV. Appropriate Compensation for Petitioner’s Pain and Suffering

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 his
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.

When performing this analysis, I review the record as a whole to include the filed
medical records, affidavits, and sworn declarations and all assertions made by the parties
in written documents. 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.

11 Horton v. Sec’y of Health & Hum. Servs., No. 20-1166VV, 2022 WL 1421847 (Fed. Cl. Spec. Mstr. Mar.

25, 2022) (awarding $60,000.00 for past pain and suffering); Tully v. Sec’y of Health & Hum. Servs., No.
21-1998V, 2024 WL 4533515 (Fed. Cl. Spec. Mstr. Sept. 20, 2024) (awarding $62,500.00 for past pain and
suffering); Felton v. Sec’y of Health & Hum. Servs., No. 20-1969V, 2024 WL 5002927 (Fed. Cl. Spec. Mstr.
Sept. 20, 2024) (awarding $64,000.00 for past pain and suffering); Rayborn v. Sec’y of Health & Hum.
Servs., No. 18-226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug. 14, 2020) (awarding $55,000.00 for
past pain and suffering).

6
A thorough review of the medical records reveals that Ms. Hickey suffered a mild
SIRVA injury, albeit one featuring higher peak pain levels than usual for that level of injury.
Petitioner has explained that due to her employment as an out-of-state travel nurse, not
only was she unable to find any orthopedist who would accept her insurance, but she was
unable to miss work due to punitive financial measures in her employment contract – she
did not receive any paid time off, and a missed day of work would result in no pay and a
penalty representing a pro-rated amount of her housing stipend. Mot. at 2-3; Ex. 1 at 1-2.

The fact that Petitioner was able to continue working despite her shoulder injury is
strongly indicative of a more mild injury that was able to be managed through more
conservative measures such as heat, ice, and over-the-counter pain medication. Indeed,
it does not appear that Petitioner missed a single day of work as a result of her injury. Nor
does her injury appear to have had an adverse impact on her performance at work, as
she was retained by Mount Sinai hospital permanently following the expiration of her
travel nurse contract. While at PT, Petitioner rated her pain variously from 0/10 at rest,
with that pain rising to up to 6/10 during and after work, and 10/10 “with overuse.” Ex. 7
at 8. At another session, Petitioner rated her pain as 4/10 because the prior day at work
she had to move a lot of hospital beds. Id. at 13. It is unclear from the record, however,
how frequently Petitioner was required to overuse her arm and thus how frequently she
felt pain at this extreme.

Further speaking to the mildness of the injury is Petitioner’s overall treatment
course. Once Petitioner was able to change her insurance and be seen by an orthopedist,
her entire course consisted of one steroid injection and four sessions of PT over
approximately four months, with Petitioner ceasing formal treatment after a June 25,
2020, PT appointment. See generally Ex. 7. This cuts against Petitioner’s assertion that
the duration of her injury was 15 months (which is based on Petitioner’s assertion that by
December 2020, she felt she was back to her baseline and fully recovered). Mot. at 6.
Considering that Petitioner was originally assigned 12 PT sessions, I am not inclined to
find that Petitioner’s symptoms, at least those arising to a compensable level, persisted
beyond the end of June 2020, when she ceased attending PT despite not being formally
discharged. This would place the total duration of her injury at approximately nine months.

Given this framework, Petitioner’s cited cases involve awards based on more
severe injuries than the instant case. For example, the petitioner in Horton had an overall
treatment course of eight months but sought treatment only 12 days after vaccination and
had an overall more rigorous treatment course with 12 sessions of PT, three times as
many as Ms. Hickey. Horton v. Sec’y of Health & Hum. Servs., 2022 WL 1421847, at * 1.
Similarly, in Tully, the petitioner’s treatment course was equal to Ms. Hickey’s at nine
months, but Ms. Tully underwent 26 PT sessions, substantially more than Ms. Hickey.
Tully v. Sec’y of Health & Hum. Servs., 2024 WL 4533515, at *15.

7
Respondent, by contrast, has cited some good comparables that would have been
even more persuasive had Respondent proposed a specific amount of award. But simply
citing to a range of cases, and then requesting that I choose an award that is “consistent
with previous mild cases for pain and suffering,” does not provide adequate aid in
resolving the parties’ dispute. As has been articulated in many cases, awarding an
amount of pain and suffering is an art and not a science, and it is thus incumbent upon
the parties to express their views as to what specific award is proper. As no two cases
are identical, it is to be expected that awards may deviate somewhat from the amounts
that each party proposes, but I continue to look to the parties to provide case law to
support their proposed award and to achieve a body of cases that are consistent,
predictable, and fair.

The comparable cases at the lower end of Respondent’s spectrum represent less
severe cases than Ms. Hickey’s, particularly regarding pain levels and length of treatment,
while those on the higher end are more consistent with Petitioner’s experience. However,
and as noted above, this case uniquely featured higher peak pain levels than what is
usually seen in mild SIRVA cases, even if it is not readily apparent from the record how
often Petitioner did experience such severe pain. This ultimately leads me to find that a
reasonable award would be slightly higher than Respondent’s illustrated range. Thus,
based on all of the circumstances and evidence submitted, I find that Petitioner’s pain
and suffering warrants an award of $47,000.00.

Conclusion

For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $47,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 12

Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $47,000.00 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).

12 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)).

8
The Clerk of 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.

9

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11422194. Public record. Not legal advice.