finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”
How later courts described this case
- finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1906V
UNPUBLISHED
JEANNE RAFFERTY, Chief Special Master Corcoran
Petitioner, Filed: May 21, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Summer Pope Abel, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On December 8, 2017, Jeanne Rafferty 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 alleged that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) caused in fact by the influenza (“flu”) vaccine she received on
October 17, 2016. Petition at 1, ¶¶ 1, 4, ECF No. 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1
Because this 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 (2012) (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).
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $131,654.04, representing $127,500.00 for past pain and
suffering, and $4,154.04 for past unreimbursed expenses. Petitioner is not, however,
entitled to compensation for future pain and suffering.
I. Relevant Procedural History
Shortly after filing her petition, Ms. Rafferty filed her medical records and affidavit.
Exhibits 1-9, filed Dec. 21, 2017, ECF No. 7; Statement of Completion, filed Dec. 21,
2017, ECF No. 8. Approximately one month later, she filed documentation regarding the
past revisions to her vaccine record and her requests to have the record further edited.
Exhibit 10, ECF No. 10.
Following the initial status conference, Respondent was ordered to file a status
report indicating his tentative position regarding the merits of Petitioner’s case. ECF No.
11. Instead, Respondent filed a motion to dismiss Petitioner’s case, arguing Petitioner
had failed to provide sufficient evidence to establish she received the vaccine alleged as
causal in her right injured arm. ECF No. 12. Petitioner filed a response on April 19, 2018,
asserting she had provided sufficient evidence to establish she was entitled to
compensation, and urging former Chief Special Master Dorsey to whom the case was
assigned at the time 3 “to issue a decision finding that [she] received the vaccination in her
right arm, and [wa]s therefore entitled to vaccine compensation.” Petitioner’s Response
to Respondent’s Motion to Dismiss at 10, ECF No. 13.
Chief Special Master Dorsey declined to rule on entitlement, but found there was
preponderant evidence sufficient to establish Petitioner received the flu vaccine in her
right injured arm, and that onset of Petitioner’s pain occurred within 48 hours of
vaccination. Findings of Fact and Conclusions of Law (“Fact Ruling”), at 2, ECF No.15.
She denied Respondent’s motion to dismiss and instructed the parties to engage in
settlement discussions. Id. at 13-14.
On November 9, 2018, Petitioner filed a status report indicating she had submitted
a demand and supporting documentation to Respondent. ECF No. 16. On March 18,
2019,4 Respondent filed a status report indicating he expected to respond to Petitioner’s
demand by April 8, 2019 and requesting to file a Rule 4 report by April 17, 2019. ECF No.
3
I was appointed Chief Special Master on October 1, 2019. This case was reassigned to me that same
day.
4
The parties’ settlement discussions were interrupted by the unavailability of Respondent’s counsel during
the partial government shutdown from late December 2018 through late January 2019. See General Orders,
filed on Dec. 26, 2018 and Jan. 29, 2019, which can be found on the court’s website.
2
21. Respondent filed his Rule 4 report as expected, and a ruling on entitlement was issued
on April 19, 2019. ECF Nos. 23-24.
Over the subsequent eight months, the parties attempted to informally agree upon
the appropriate amount of damages in this case. On May 20, 2019, Petitioner indicated
that she had not yet received a response to her demand, submitted on November 9, 2018.
ECF No. 26. On June 20, 2019, she filed the results of a test ordered on January 11,
2017, and medical records from the WellFit Program Petitioner attended following formal
PT in July 2017 through mid-September 2017. Exhibits 11-12, ECF No. 28. A call with the
parties was held on August 12, 2019. On September 3, 2019, Respondent provided a
counter offer regarding the amount of compensation sought for Petitioner’s pain and
suffering and requested additional documentation to support the amount of past
unreimburseable expenses sought. ECF No. 36.
In November and December 2019, the parties exchanged further counteroffers,
and Petitioner provided the additional documentation requested by Respondent. Status
Report at 1, ECF No. 42. On December 30, 2019, Petitioner indicated that, despite the
parties’ efforts, they had reached an impasse in their discussions. Id. She provided an
agreed upon schedule for briefing by the parties. Id. at 1-2. Petitioner subsequently
submitted her damages brief and updated medical records on February 21, 2020.
Petitioner’s Brief on Damages (“Pet. Brief”), ECF No. 45; Exhibits 13-17, ECF No. 44.
Two months later, Respondent filed his response. Respondent’s Brief on Damages (“Res.
Brief”), filed Apr. 20, 2020, ECF No. 47. On May 12, 2020, Petitioner filed her reply.
Petitioner’s Reply to Respondent’s Brief on Damages (“Pet. Reply”), ECF No. 48.
II. Relevant Medical History
A. Medical Records
The medical records from Petitioner’s primary care provider (“PCP”), Dr. Wah, at
Carroll Health Group, show that Petitioner underwent several surgeries after falling on ice
in 2006.5 On August 19, 2014, she was assessed with chronic back pain and leg
weakness. Exhibit 2 at 19. Petitioner continued to suffer chronic back and hip pain and
weakness in her lower extremities during the subsequent two-year period.6 On
5
Exhibit 2 at 18-20 (summary from visit on Aug. 19, 2014). The record of that visit provides a history of
Petitioner’s surgeries in 2006 and 2008 and complications during a procedure in 2010. Id. at 18.
6
On September 24, 2014, Petitioner complained of left hip pain. Exhibit 2 at 15. Her continued back pain
was also mentioned in that record. Id. An x-ray of Petitioner’s left hip, the results of which were normal, was
performed on October 6, 2014. Id. at 30. On November 20, 2015, it was noted that Petitioner had slightly
less strength in her lower right extremities. Id. at 11.
3
September 24, 2014, Petitioner was prescribed one tablet of extra strength Tylenol three
times a day. Id. at 16. As noted in the record from a June 2, 2015 visit, she also was
taking 7.5 milligrams of Meloxicam7 daily. Id. at 13. Her back pain was re-evaluated on
June 22, 2016 (approximately four months prior to vaccination). Id. at 6. Petitioner was
instructed to continue her current pain medication. Id. at 7. Petitioner’s medical records
from her PCP indicate she continued her prescriptions of extra strength Tylenol and
Meloxicam at the levels originally prescribed. Id. at 10, 7, 3 (chronological order). There
is, however, no mention of arm or shoulder pain in the medical records from prior to
vaccination.
Petitioner received the flu vaccine on October 17, 2016. The vaccine record
indicates the site of vaccination was initially identified as petitioner’s left vastus lateralis
(thigh),8 but was edited to change the site of administration to Petitioner’s left deltoid.
Exhibit 2 at 5.9 Multiple subsequent attempts by Petitioner to further correct the vaccine
record to reflect her right deltoid as the site of vaccination were unsuccessful. E.g. Exhibit
10 (showing requests and denial). In her October 11, 2018 fact ruling, however, then-
Chief Special Master Dorsey found the vaccine was more likely than not administered in
Petitioner’s right deltoid, as alleged. Fact Ruling at 2, 13, ECF No. 15.
On December 1, 2016, Petitioner returned to her PCP, complaining of right arm
pain. Seen at this visit by Sandip S. Hirpara, D.O.,10 she reported pain which had been
“present since she received her Flu vaccine 5 weeks ago.” Exhibit 2 at 3. Petitioner
identified the injection site, which Dr. Hirpara noted was “tender to touch.” Id. Describing
her pain as extending to her elbow, Petitioner indicated that lifting her arm was “very
painful.” Id. She further indicated she had tried Motrin on a permanent basis. Id. While
examining Petitioner, Dr. Hirpara observed minimal swelling, erythema,11 and
tenderness. Exhibit 2 at 4. He ordered an MRI and indicated that (depending on the
results of the MRI) he would refer Petitioner to an orthopedist. Id.
7
Meloxicam is “a nonsteroidal inflammatory drug used in the treatment of osteoarthritis; administered
orally.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1126 (32nd ed. 2012).
8
Vastus lateralis is the largest muscle in the quadriceps group, located on the side of the thigh.
https://www.healthline.com/human-body-maps/vastus-lateralis-muscle (last visited on Apr. 23, 2020).
9
In addition to the record contained in the medical records from Petitioner’s PCP (Exhibit 2 at 5), the
vaccination record was also filed as Exhibit 1.
10
D.O. stands for Doctorate of Osteopathic Medicine. Unless a particular degree is specified the first time
an individual is referenced, it is assumed any individual with the title of “Dr.” has earned a Doctor of Medicine
(M.D.). Doctors who have earned a D.O. may have received different training but have similar privileges
and responsibilities as doctors with an M.D.
11
Erythema is “redness of the skin produced by congestion of the capillaries.” DORLAND’S at 643.
4
MRIs of Petitioner’s right humerus bone and shoulder were performed on
December 6, 2016. Exhibit 4 at 1-2. The MRI of her right shoulder showed “[b]ursal sided
partial tearing of the distal supraspinatus tendon with a background of mild tendinosis,”
“[m]ild tendinosis of the distal infraspinatus tendon,” and mild osteoarthritis in the
acromioclavicular (AC) and glenohumeral joints. Id. at 2.
On December 14, 2016, Petitioner saw an orthopedist at the Carroll Health Group,
Dr. Rollo. Exhibit 612 at 5-7. At that visit, she reported two months of right shoulder/arm
pain with onset after receiving the influenza vaccination. Id. at 5. Describing her pain as
occurring throughout the day and worse when attempting to lift objects, Petitioner denied
any numbness or tingling. Id. She further indicated that taking two Advil tablets at night
“have not been helpful in controlling [her] symptoms.” Id. Her prescriptions for extra
strength Tylenol and Meloxicam were noted under current medications. Exhibit 6 at 6. Dr.
Rollo reported that he observed “no swelling, deformity, or atrophy," tenderness at her
biceps tendon upon palpitation, and an active range of motion (“ROM”) to 140 degrees
for abduction but with pain. Id. at 6. Noting bursal sided partial tearing of the
supraspinatus13 and arthritic changes revealed on Petitioner’s December 2016 MRI, Dr.
Rollo described the changes as “degenerative in nature changes and not related to the
injection.” Exhibit 6 at 6-7. He prescribed medication to include a prednisone14 taper and
physical therapy (“PT”) to begin a few days later. Exhibit 6 at 7. Petitioner began formal
PT at Wellspan Rehabilitation on December 28, 2016. Exhibit 7 at 71-72 (intake form).15
At her initial PT session on December 28, 2016, Petitioner described aching pain
along the anterior part of her right shoulder traveling along her biceps to her elbow and
into her hand. Exhibit 7 at 69. She rated the level of her pain as from 3 to 7 out of 10.
Regarding her reduced function, Petitioner rated tasks such as lifting a gallon of milk out
of the refrigerator as a 5 and tasks such as vacuuming and closing a car door as 4 on a
scale of 0 to 10 with 10 meaning full function. Petitioner scored a 36 percent loss of
function in the Quick Dash test. Id. Upon examination, it was noted that Petitioner
exhibited “significant tenderness” with palpitation. Id. at 70. Her active ROM was
assessed as 145 degrees for forward flexion and 120 degrees for abduction. Id.
12
These records show that, in 2014, Petitioner was treated by another orthopedist at the Carroll Health
Group, Dr. Blue, for pain in her left thigh. Exhibit 6 at 8-14.
13
Dr. Rollo did not specify whether he was referring to the supraspinatus tendon or muscle. Given the
results of the MRI, showing partial tearing of the tendon, it can be inferred that Dr. Rollo was referring to
the supraspinatus tendon. Exhibit 4 at 2 (results of MRI).
14
Prednisone is “a synthetic glucocorticoid derived from cortisone, administered orally as an anti-
inflammatory and immunosuppressant in a wide variety of disorders.” DORLAND’S at 1509.
15
On her intake form, Petitioner listed “flu shot administration” as the cause of her injury and dated the
injury as occurring on October 17, 2016. Exhibit 7 at 71. Petitioner included information about her earlier
neck and back injury on the intake form. Id.
5
Petitioner attended seven more PT sessions in January 2017. Exhibit 7 at 61-67.
At these sessions, she reported the following pain levels: 6-7, 4-5, 6-6.5, 7-8, 6-7, 5-6,
and 5. On January 21, 2017, she indicated that the over the counter anti-inflammatory
medication she was taking was not helping and that her pain seemed to be at the level it
was before she gained some relief from the prednisone. Id. at 64. When she reported
slightly lower pain levels, Petitioner usually attributed the improvement to a lack of activity.
Id. at 66.
Petitioner followed up with Dr. Rollo regarding her right shoulder pain on January
11, 2017. Exhibit 6 at 2. She reported that her pain had improved by 50 percent while on
steroids but returned when the medication was completed. In addition to the extra
strength Tylenol and Meloxicam she had been taking since late 2014, Petitioner’s current
medications included 10 milligrams of prednisone daily. Describing her pain as located in
the front of her shoulder and radiating downwards to her elbow, Petitioner also
complained of stiffness and coldness, but no numbness or tingling, in her hand. Id.
Dr. Rollo observed that Petitioner’s ROM was further limited, to 80 degrees.
Acknowledging that he “initially did not believe the needles were long enough to cause
any mechanical damage to the underlying RTC [(rotator cuff)],” Dr. Rollo indicated that,
after further research, he could not “confirm or deny the injection as a cause of
[petitioner’s] discomfort.” Exhibit 6 at 2. Having become aware of studies showing
infiltration of the bursa is possible in thin women, Dr. Rollo admitted he was “uncertain of
the potential side effects of the vaccine itself.” Id. He instructed Petitioner to continue her
daily dose prednisone and PT. Id. at 3. Directing Petitioner to return in one month for a
re-evaluation, Dr. Rollo added that a steroid injection should be considered if Petitioner
continued to experience pain. Id.
During Petitioner’s PT reassessment on February 4, 2017, Petitioner “report[ed]
that she ha[d]not really noticed any changes or improvement since starting physical
therapy.” Exhibit 7 at 57. Describing her pain as “up and down depending on her activity,”
Petitioner indicated that “she d[id] have decreased pain with rest and [wa]s no longer in
pain all the time.” Id. However, she also indicated that, after receiving some relief while
taking prednisone, her pain had returned “just as bad if not worse than before.” Id. While
acknowledging some improvement with certain task (getting milk out of the refrigerator)
(id.), Petitioner reported that she had not done much in the last few days since her
husband was home (id. at 60). At this reassessment, Petitioner showed a further
decrease in her active ROM, exhibiting forward flexion of 117 degrees, abduction of 106
degrees, and external rotation of 42 degrees. Id. at 57. She rated the level of her pain as
6 out of 10. Id. at 60. It was determined that Petitioner should attend additional PT twice
week for four weeks. Id. at 58.
6
On February 7, 2017, Petitioner sought a second opinion from Dr. Bischoff at
Wellspan Hanover Orthopaedics. See Exhibit 3 at 10-11 (record from that visit); Exhibit 7
at 56 (discharge record from PT indicating Petitioner’s visit to Dr. Bischoff was for a
second opinion). At the initial visit to Dr. Bischoff, Petitioner provided a detailed history.
Exhibit 3 at 10. She again described significant right shoulder pain, extending to her
elbow, which began after she received the influenza vaccination on October 17, 2016.
Indicating that “the injection was given high, . . . [Petitioner] point[ed] to the region just
underneath her acromion laterally” which she stated occasionally felt swollen. Id.
Although that area of her right shoulder “ached significantly for the next 2 weeks” following
vaccination, Petitioner recounted that she did not seek medical care earlier due to the
death of a friend. Id.
Dr. Biscoff reported at this time that “[o]n examination of [Petitioner’s] right
shoulder, once again, she points just inferior to the lateral ledge of the acromion, as to
where the injection was given.” Exhibit 3 at 10. While indicating he could not “appreciate
any significant swelling about the shoulder, [and] [t]here is no erthythema or warmth,” Dr.
Bischoff did observe “mild tenderness to the palpitation about the shoulder girth itself,”
adding that it was non-specific. Id. He reported Petitioner “gets significant pain when she
tries active range of motion.” Id. Regarding her ROM, he observed that Petitioner could
forward flex and abduct to 100 degrees with effort, could externally rotate to 40 degrees,
and could internally rotate to L1. Her rotator cuff strength was reported to be a 4 out of 5.
Id.
Reviewing the MRI of Petitioner’s right shoulder, Dr. Biscoff noted that her “rotator
cuff tendons appear to be intact, [t]here may be some evidence of a tendinopathy, . . .
“mild effusion within the soft tissues, . . . [and] some subacromial spurring and AC joint
arthritis.” Exhibit 3 at 10. He opined that the cause of Petitioner’s right shoulder pain was
the influenza vaccination she received, adding that, although rare, SIRVA is “described
in the literature.” Id. He discussed options such as a steroid injection or arthroscopic
surgery, prescribed an additional tapering dose of prednisone, and instructed Petitioner
to stop PT. Id.; see also Exhibit 7 at 56 (describing Petitioner’s discharge from PT upon
the recommendation of Dr. Bischoff, after attending eight sessions).
On March 1, 2017, Petitioner visited Dr. Bischoff for a pre-operative physical,
having “elected to proceed with the right shoulder arthroscopy.” Exhibit 3 at 8. In the
record from that visit, it is noted that Petitioner “once again describe[d] the pain as being
instantaneous at the time of the injection and it has not improved with time.” Id. Dr.
Bischoff observed the same ROM and rotator cuff strength as seen at the prior visit, on
February 7, 2017. He described the planned surgery as “arthroscopic irrigation and
7
debridement of the subacromial space,” possibly including an acromioplasty. 16 Exhibit 3
at 8.
Arthroscopic surgery on Petitioner’s right shoulder was performed by Dr. Bischoff
on March 15, 2017. Exhibit 3 at 13-14; see also Exhibit 5 (records from Hanover Hospital
where the surgery was performed). According to Dr. Bischoff’s records, general
anesthesia was administered. Exhibit 3 at 13. Dr. Bischoff then created several portals
but elected not to enter the joint itself to avoid introducing any irritants. He observed the
bursa to be enlarged17 and hyperemic.18 Exhibit 3 at 13. Performing a bursectomy, Dr.
Bischoff used a shaver to debride the bursa, undersurface of the acromion, and
coracoacromial ligament. Id. at 13-14. An acromioplasty was not performed, but Dr.
Bischoff debrided further in the subdeltoid interval. Id. at 14. He observed no evidence of
a rotator cuff tear. Id.
Petitioner returned to Wellspan Rehabilitation for her post-surgery PT on March
17, 2017. Exhibit 7 at 50-51 (plan of care from Dr. Bischoff), 52-53 (initial evaluation by
physical therapist). Describing her pain as an ache in her right anterior shoulder into her
biceps with intermittent sharp pains and some numbness and tingling, Petitioner rated its
level from 0 to 9 on a scale of 10. Id. at 52. Upon examination, Petitioner exhibited right
shoulder flexion to 35 degrees, abduction to 25 degrees, and external rotation to 3
degrees, all with pain and muscle guarding. Id. at 53. In contrast, Petitioner showed
flexion to 150 degrees, abduction to 138 degrees in her left uninjured arm. Id. It was noted
that Petitioner had been instructed to keep her injured right arm, noted to be her dominant
arm, in a sling until seen by her orthopedist on March 21, 2017. Id. at 52.
At her March 21, 2017 visit with Dr. Bischoff, Petitioner indicated she had
experienced post-operative dizziness and nausea which improved after she reduced her
pain medication. Exhibit 3 at 6. She reported some soreness but added that it was not
extensive and was different than what she had experienced prior to her surgery. It was
noted that Petitioner would return in 3 days to have her sutures and “may start using her
right arm for light activities of daily living.” Id.
At her next orthopedic visit, on March 24, 2017, Petitioner reported that “she has
been working on [her] passive range of motion at therapy with good results.” Exhibit 3 at
16
Acromioplasty is the “surgical removal of an anterior spur of the acromion to relieve mechanical
compression of the rotator cuff during movement of the glenohumeral joint.” DORLAND’S at 20.
17
Dr. Bischoff noted that Petitioner had “an abundant amount of hypertrophic bursa.” Exhibit 3 at 13.
Hypertrophic is the adjective form of hypertrophy, “the enlargement or overgrowth of an organ or part due
to an increase in size of its constituent cells.” DORLAND’S at 898.
18
Hyperemic is the adjectival form of hyperemia, “an increase of blood in a part.” DORLAND’S at 888.
8
4. She reported little shoulder pain which she “tolerated well with over-the-counter anti-
inflammatories.” Id. Upon examination, Petitioner showed forward flexion to 100 degrees,
external rotation to 40 degrees, and internal rotation to L1. She was instructed to continue
her PT and to return for a follow-up appointment in four weeks. Id.
She returned to see Dr. Bischoff on April 25, 2017. Exhibit 3 at 2. At this visit, she
reported some soreness along the lateral side of her right shoulder. She indicated that
she “has been going to therapy, but they have not really been pushing her too hard with
range of motion or strengthening.” Id. Dr. Bischoff observed active forward flexion and
abduction to 110 degrees, and to 160 degrees passively with his help. Her external
rotation was recorded as 30 degrees actively and 60 degrees passively. Petitioner was
instructed to continue with her PT and home exercises and to return in six weeks. Id.
From March 17 through May 30, 2017, Petitioner attended 21 PT sessions. Exhibit
7 at 8-9, 21-23. During this time, she reported 60-70 percent improvement which included
an “increased tolerance for reaching and lifting light objects due to increased strength,”
an ability to perform more childcare tasks such as getting her four-year old twins in and
out of their car seats, and an increased ease when grooming her hair, dressing, and
bathing. Id. at 21. In numeric values, Petitioner’s abilities to perform these tasks had
improved from 3, 0, 0 to 8s across the board. Id. at 5. As of May 17, 2017, Petitioner’s
disability score had improved from 88.64 to 38.64 percent. Id. At her last PT appointment
on May 30, 2017, Petitioner exhibited active ROM for flexion to 145 degrees, abduction
to 132 degrees, external rotation to 70 degrees, and internal rotation to L3. However,
Petitioner continued to have difficulty sleeping for more than four hours. Id. at 21-22.
Petitioner visited Dr. Bischoff again on June 6, 2017. Exhibit 3 at 16. At that visit,
it was noted that she had finished PT and was in the WellFit Program. Petitioner reported
that she was feeling better but still experienced “some aching anteriorly and laterally.” Id.
Dr. Bischoff observed that Petitioner still had some symptomatology but was slowly
improving. He indicated Petitioner should continue with her home exercise program
(“HEP”) and the WellFit Program and return for a follow-up appointment in two months.
Id.
The medical records from WellFit Program indicate it “is a medically supported and
guided exercise program for individuals in good health or who have unique medical
needs.” Exhibit 12 at 1. The WellFit website indicates it “is a medically guided self-pay
exercise program for individuals striving to improve their overall fitness or wellness.” See
https://www.wellspan.org/programs/sports-medicine/wellfit-and-injury-prevention-
services (last visited Apr. 25, 2020). It appears Petitioner attended Assisted WellFit
programs of twice weekly sessions for four weeks three times in June through September
2017 at a cost of $50 per each 4-week session. Exhibit 12 at 1, 3-7. These exercise
9
sessions were conducted one on one by a certified athletic trainer, Meghan Clarkson,
ATC.19 Exhibit 12 at 3-7. Petitioner attended her last WellFit session on September 15,
2017. Id. at 7.
During an appointment with Dr. Bischoff on August 21, 2017, Petitioner indicated
that she “had noticed some improvement over the last month” and was almost done with
the WellFit Program. Exhibit 3 at 17. Upon examination, Petitioner’s active ROM had
improved to 160 degrees for forward flexion and abduction. Her external rotation was to
50 degrees and internal rotation to L1. Her rotator cuff strength was noted to be 5- out of
5. Dr. Bischoff instructed Petitioner to continue her HEP and to be careful with any heavy
lifting or twisting activities over the next few months. Id. He indicted she should return
only as needed. Id.
On September 20, 2017, Petitioner visited Wellspan Family Medicine to establish
new patient care. Exhibit 8 at 2. Her recent shoulder surgery was included in Petitioner’s
history, but no ongoing symptoms were noted. Id. at 2-5. Petitioner filed no further medical
records from Wellspan Family Medicine or any other PCP.
The only medical record Petitioner has filed from medical treatment from this point
until the present is from a visit to Dr. Bischoff on October 2, 2019. Exhibit 13 at 1. In this
record, Dr. Bischoff indicated that he had discharged Petitioner in August 2017. He
characterized the October 2, 2019 visit as a “recheck”. Id. At this visit, Petitioner reported
some occasional soreness anteriorly, some residual stiffness, and that “[c]ertain activities
bother her when she goes to the gym.” Id. Her active ROM was observed to be “150
degrees of forward flexion; 50 degrees [of] external rotation; [and] internal rotation to L2.”
Id. at 2. Her rotator cuff strength was assessed as 5- out of 5. Dr. Bischoff attributed the
soreness and stiffness Petitioner was experiencing to scar tissue from her surgery. He
opined that Petitioner “more than likely has reached maximal medical improvement” and
that he “d[id] not believe that any further treatment is warranted.” Id. He advised Petitioner
to continue her HEP and return as needed. Id.
B. Petitioner’s Affidavit and Other Documents
In her first affidavit, which was signed and notarized on December 15, 2017,
Petitioner addresses the onset of her injury, the difficulties it has caused her, and her
attempts to amend the vaccination record to reflect vaccine administration in her right,
rather than left, arm. Exhibit 9. She provided documents which describe her efforts to
amend the vaccination record and the responses she received. Exhibit 10.
19
ATC stands for Athletic Trainer, Certified. MEDICAL ABBREVIATIONS at 71 (16th ed. 2020).
10
Regarding onset, Petitioner alleged that she “immediately experienced severe pain
in [her] shoulder which was different than any other vaccine [she] had previously
received.” Exhibit 9 at ¶ 1. Indicating she had her three-year-old son with her, petitioner
maintained she did not say anything about her pain because she did not want to frighten
her son and “assumed it would feel fine in a short time.” Id. Petitioner reports being unable
to open the car door with her right arm after leaving the clinic. Petitioner indicates, rather
than subsiding, her “shoulder and arm pain worsened to the point that [she] could no
longer lift a cup of tea to [her] mouth with [her] right hand.” Id.
Petitioner describes the effects of her right shoulder injury over the subsequent
year. Exhibit 9 at ¶¶ 2-4, 6. A mother of twin three-year-old sons, one of whom has autism,
Petitioner contends she was unable to care for her sons or herself and was forced to rely
on her husband, mother, sister-in-law, and neighbor for help. Id. at ¶¶ 2-4. Petitioner
describes difficulty brushing her teeth, dressing, and washing her hair. Id. at ¶ 4. In
addition to the physical difficulties she experienced, Petitioner claims she and her family
suffered emotionally. Id. She credits the second orthopedist she saw, Dr. Bischoff, for “the
improvement and relief [she has experienced] thus far.” Id. at ¶ 6.
Petitioner addresses her current condition more fully in her supplemental affidavit
executed in February 2020. Exhibit 16. Petitioner maintains that she continues to
experience intermittent pain, especially with certain movements, that she continues to
perform her home exercises but is unable to regularly do so, and that she has had to
modify the way she performs certain household tasks. Id. at ¶ 1. She claims that it took
several years for both of her twin sons to adapt to the effects of her injury, longer for her
son with autism. Id. at ¶ 2. She describes the effect her inability to hug her autistic son or
drive him to his therapies had on his treatment. Id. ¶¶ 2-3. She lists some of the financial
effects she suffered due to her injury. Id. at ¶ 4.
To support her assertions, Ms. Rafferty filed affidavits from her adult daughter and
husband and a list of costs for which she seeks compensation. Exhibits 14-15, 17. The
affidavits from her daughter and husband support Petitioner’s description of the difficulties
she experienced prior to and during her recovery from her March 2017 surgery, but do
not address her condition following her post surgery PT. Exhibits 14-15. Her daughter
discusses in detail the difficulties her mother experienced caring for her brothers during
the five months prior to her surgery. Exhibit 14 at ¶¶ 1-3. Both she and her father indicate
he had to take off work for the week after Petitioner’s surgery. Exhibit 14 at ¶ 4; Exhibit
15 at ¶ 5. In his affidavit, Petitioner’s husband provides details regarding the difficulties
Petitioner faced during the six months following her surgery. Exhibit 15 at ¶ 5.
11
III. The Parties’ Arguments
Petitioner seeks compensation in the amount of $179,154.04, representing
$175,000.00 for her past pain and suffering and $4,154.04 for her past expenses, plus a
yearly amount of $1,500.00 for her projected pain and suffering for the rest of her life. Pet.
Brief at 1-2. While acknowledging that her condition improved post-surgery, Petitioner
asserts that she “continues to have lingering pain that impacts her overall quality of life.”
Id. at 1. The compensation sought for Petitioner’s expenses is the total of her out-of-
pocket medical expenses. Exhibit 17, ECF No. 44-5.
To support the amount sought for her past pain and suffering, Petitioner stresses
the intensity of the pain and limited ROM she suffered and the effect it had on her
everyday activities. Pet. Brief at 11-12. Specifically, Petitioner details the difficulties she
had caring for her twin three-year old sons, one of which has autism. Id. Petitioner admits
that the majority of her pain and suffering occurred within the first year of her injury but
maintains that she continues to suffer pain to this day. To support this assertion, she cites
her recent appointment with Dr. Bischoff. Id. at 16.
Petitioner compares the facts in her case to those experienced by petitioners in
other SPU cases, specifically in Reed, Hooper, and Binette.20 Pet. Brief at 13-18. She
argues that she should be awarded an amount of compensation for her past pain and
suffering which is slightly more than that awarded in Reed ($160,000.00) and slightly less
than that awarded in Hooper ($185,000.00). Id. at 16-17. She also maintains her pain and
suffering was more extensive than that suffered by the petitioner in Binette (awarded
$130,000.00 for past pain and suffering). Id. at 17.
Regarding compensation for her future pain and suffering, Petitioner argues she is
entitled to more than that awarded in Binette ($1,000.00 per year). Pet. Brief at 18.
Drawing similarities between her circumstances and those in Hooper, she insists she is
entitled to the same amount of compensation as was award the Hooper petitioner
($1,500.00 per year). Id. To distinguish her case from Reed, in which a request for an
award for future pain and suffering was denied, Petitioner compares the assessment
20
Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb.
1, 2019) (awarding $160,000.00 for pain and suffering and $4,931.06 in unreimbursable medical expenses);
Hooper v. Sec’y of Health & Human Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar.
20, 2019) (awarding $185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of
30 years for projected pain and suffering, $37,921.48 for lost wages); Binette v. Sec’y of Health & Human
Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $130,000.00 for
actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for projected pain and
suffering, and $7,101.98 for past unreimbursable medical expenses).
12
provided at her latest appointment with Dr. Bischoff to that given the petitioner in Curri,21
a case discussed in Reed in which I was the special master and awarded $550.00 per
year for future pain and suffering. Pet. Brief at 14.
Respondent contends Petitioner should be awarded no more than $105,000.00 for
her pain and suffering. Res. Brief at 2. He does not, however, specify whether this amount
is for past pain and suffering only or if a portion of the award would be for future pain and
suffering. He adds that he has no objection to the amount Petitioner seeks for her
outstanding medical expenses, $4,154.04. Id. at 2 n.4.
Respondent argues that Petitioner’s “SIRVA was not severe.” Res. Brief at 6. To
support this assertion, he emphasizes Petitioner’s delay in seeking treatment and results
of her MRI. Id. at 6-7. He compares the injury Petitioner sustained with those suffered by
the petitioners in the Young and Selling22 cases, maintaining that the facts in Petitioner’s
case are most similar to those in Selling (in which $105,000.00 was awarded for actual
pain and suffering). Id. at 8-9. He argues that “Petitioner’s attempt to compare the severity
of this case to cases [with] much higher awards is simply not supported by the evidence.”
Id. at 9.
Citing amounts awarded in civil actions for shoulder injuries outside of the Vaccine
Program, Respondent asserts that awards in the Vaccine Program are substantially
higher than other awards in the traditional tort system. Res. Brief at 7-8. He partially
blames what he terms the “meeting-in-the-middle” method which he asserts is being used
to decide awards when parties are unable to reach an informal agreement. Id. at 10. He
argues that petitioners are inflating the amounts they are requesting while Respondent is
forced to adhere to the amounts proffered during informal discussions. Because
petitioners have consistently been awarded more than the amount advanced by
Respondent, he argues petitioners are incentivized to request ever greater amounts.
In her reply, Petitioner characterizes her SIRVA as severe and repeats her
assertion of continued pain since receiving the flu vaccine in October 2016. Pet. Reply at
2-4. Petitioner claims to have “suffered excruciating pain and significant limitations in her
range of motion from the time of her vaccination.” Id. at 3. She also argues that her
“SIRVA was both severe and long lasting.” Id. at 4.
21
Curri v. Sec’y of Health & Human Servs., No. 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31,
2018) (awarding $120,000 for actual pain and suffering, $550.00 per year for a life expectancy of 28 years
for projected pain and suffering, and $3,728.76 for projected expenses).
22
Young v. Sec’y of Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. CL. Spec. Mstr. Jan.
4, 2019 (awarding $100,000.00 for pain and suffering and $2,293.15 for expenses); Selling v. Sec’y of
Health & Human Servs., No. 16-0588V, 2019 WL 3425224 (Fed. Cl. Spec. Mstr. May 2, 2019) (awarding
$105,000.00 for actual pain and suffering $9,505.82 for actual costs and expenses).
13
Regarding Respondent’s citation of state court awards for shoulder injuries,
Petitioner asserts that it would be inappropriate for me to consider the amount of those
awards when determining the appropriate amount of compensation to be awarded in this
vaccine case. Pet. Reply at 4-9. She proclaims that “[r]everence to state court verdicts is
unprecedented in the Vaccine Program.” Id. at 6. Stressing the intent of Congress and
specialized nature of the Vaccine Program, Petitioner argues that the cases and awards
cited by Respondent are not relevant to this inquiry. Id. at 8-9.
Comparing the facts in this case to those in other vaccine cases, Petitioner repeats
her assertion that her injury is most like those suffered by the petitioner’s in Hooper, Reed,
and Binette. Pet. Reply at 11. She disputes Respondent’s comparisons to the Young and
Selling cases, pointing to specific differences in those cases. Id. at 10. Addressing
Respondent’s general argument regarding the amounts being awarded in the vaccine
program, specifically those in SIRVA cases, Petitioner calls Respondent’s argument
disingenuous and insulting. Id. at 11-12.
IV. 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 unreimbursable23 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 &
Human 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 & Human 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 & Human 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
23
“Unreimbursable” for Vaccine Act purposes means costs and expenses that are not otherwise subject to
reimbursement to a petitioner from insurance or otherwise. See H.R. Rep. No. 99–908, at 20 (1986), 1986
U.S.C.C.A.N. 6344, 6361 (“[T]he Committee intends that the Program pay only demonstrated, actual costs
for which reimbursement cannot be obtained.”).
14
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 & 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)).
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 & Human 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.24 Hodges v. Sec’y of
Health & Human 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 a Court of Federal
Claims decision several years ago. In Graves, Judge Merrow rejected a special master’s
approach of awarding compensation for pain and suffering based on a spectrum from
$0.00 to the statutory $250,000.00 cap. Judge Merrow maintained that 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.”
Graves, 109 Fed. Cl. at 590. Instead, Judge Merrow 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.
24
From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
15
V. Prior SIRVA Compensation
A. Overview of SIRVA Case Damages Outcomes in Settled Cases25
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2020, 1,405 SIRVA cases have informally resolved26 since SPU’s inception
in July of 2014. Of those cases, 817 resolved via the Government’s proffer on award of
compensation, following a prior ruling that petitioner is entitled to compensation. 27
Additionally, 567 SPU SIRVA cases resolved via stipulated agreement of the parties
without a prior ruling on entitlement.
Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $75,044.86 to $122,038.99.28 The median award is $95,000.00.
Formerly, these awards were presented by the parties as a total agreed-upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Since
late 2017, the government’s proffer has included subtotals for each type of compensation
awarded.
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $92,500.00,29 with a median award of $70,000.00. In most instances,
the parties continue to present the stipulated award as a total agreed upon dollar figure
without separately listed amounts for expenses, lost wages, or pain and suffering. Unlike
the proffered awards, which purportedly represent full compensation for all of petitioner’s
25
I used the term “settled” broadly, to include both cases that the Department of Justice resolves via
litigative risk discussions and those it proffers (meaning the Government represents that the damages sum
accurately reflects its liability under the Act in the relevant case). Prior decisions awarding damages,
including those resolved by settlement or proffer, are made public and can be searched on the U.S. Court
of Federal Claims website by keyword and/or by special master. On the court’s main page, click on
“Opinions/Orders” to access the database. All figures included in this order are derived from a review of the
decisions awarding damages within the SPU. All decisions reviewed are, or will be, available publicly. All
figures and calculations cited are approximate.
26
Additionally, 41 claims alleging SIRVA have been dismissed within the SPU.
27
There also have been 21 prior cases in which a petitioner was found to be entitled to compensation, but
where damages were resolved via a stipulated agreement by the parties rather than government proffer.
28
Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 21 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $115,772.83. For these awards, the first and third quartiles range from $90,000.00
to $160,502.39.
29
Typical range refers to cases between the first and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
16
damages, stipulated awards also typically represent some degree of litigative risk
negotiated by the parties.
B. Specific Prior Reasoned Decisions Addressing SIRVA Damages
Additionally, since the inception of SPU in July 2014, there have been a number
of reasoned decisions awarding damages in SPU SIRVA cases – meaning where the
parties were unable to informally resolve damages, so the dispute was adjudicated and
ruled upon by a special master. Typically, the primary point of dispute has been the
appropriate amount of compensation for pain and suffering.
i. Below-median awards limited to past pain and suffering
In seventeen prior SPU cases, the petitioner was awarded compensation for only
actual or past pain and suffering in amounts below the median proffer figure discussed
above, and in a range from $60,000.00 to $90,000.00.30 These cases have all included
30
These cases are: Dagen v. Sec’y of Health & Human Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl.
Spec. Mstr. Nov. 6, 2019) (awarding $65,000.00 for actual pain and suffering and $2,080.14 for actual
unreimbursable expenses); Goring v. Sec’y of Health & Human Servs., No. 16-1458V, 2019 WL 6049009
(Fed. Cl. Spec. Mstr. Aug. 23, 2019) (awarding $75,000.00 for actual pain and suffering and $200.00 for
actual unreimbursable expenses); Lucarelli v. Sec’y of Health & Human Servs., No. 16-1721V, 2019 WL
5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (awarding $80,000.00 for actual pain and suffering and
$380.54 for actual unreimbursable expenses); Kent v. Sec’y of Health & Human Servs., No. 17-0073V,
2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019) (awarding $80,000.00 for actual pain and suffering
and $2,564.78 to satisfy petitioner’s Medicaid lien); Capasso v. Sec’y Health & Human Servs., No.17-
0014V, 2019 WL 5290524 (Fed. Cl. Spec. Mstr. July 10, 2019) (awarding $75,000.00 for actual pain and
suffering and $190.00 for actual unreimbursable expenses); Schandel v. Sec’y of Health & Human Servs.,
No. 16-0225V, 2019 WL 5260368 (Fed. Cl. Spec. Mstr. July 8, 2019) (awarding $85,000.00 for actual pain
and suffering and $920.03 for actual unreimbursable expenses); Bruegging v. Sec’y of Health & Human
Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May 13, 2019) (awarding $90,000.00 for
actual pain and suffering and $1,163.89 for actual unreimbursable expenses); Pruett v. Sec’y of Health &
Human Servs., No. 17-0561V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awarding $75,000.00
for actual pain and suffering and $944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health
& Human Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding
$75,000.00 for actual pain and suffering); Weber v. Sec’y of Health & Human Servs., No. 17-0399V, 2019
WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and
$1,027.83 for actual unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs., No. 18-0490V,
2019 WL 2462953 (Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering);
Attig v. Sec’y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19,
2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses);
Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct.
18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical expenses);
Kim v. Sec’y of Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable medical expenses);
Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable medical expenses);
Marino v. Sec’y of Health & Human Servs., No. 16-0622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar.
26, 2018) (awarding $75,000.00 for pain and suffering and $88.88 in unreimbursable medical expenses);
Desrosiers v. Sec’y of Health & Human Servs., No. 16-0224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr.
17
injuries with a “good” prognosis, although some of the petitioners asserted residual pain.
All of the petitioners in such cases displayed only mild to moderate limitations in range of
motion, and MRI imaging likewise showed only evidence of mild to moderate pathologies
such as tendinosis, bursitis, or edema. The duration of injury ranged from six to 29
months, with such petitioners averaging approximately fourteen months of pain.
Significant pain was reported in these cases for up to eight months. However, in
approximately half of the cases, these petitioners subjectively rated their pain as six or
below on a ten-point scale. Petitioners who reported pain in the upper end of the ten-point
scale generally suffered pain at this level for three months or less. Slightly less than one-
half of these individuals had been administered one to two cortisone injections. Most of
these petitioners pursued physical therapy for two months or less, and none had any
surgery. The petitioners in Schandel, Garrett, and Weber attended PT from almost four
to five months, but most of the PT in Weber focused on conditions unrelated to the
petitioner’s SIRVA. Several of these cases (Goring, Lucarelli, Kent, Knauss, Marino, Kim,
and Dirksen) included a delay in seeking treatment. These delays ranged from about 42
days in Kim to over six months in Marino.
ii. Above-median awards limited to past pain and suffering
In eight prior SPU cases, the petitioner was awarded compensation limited to past
pain and suffering but above the median proffered SIRVA award, in ranges from
$110,000.00 to $160,000.00.31 Like those in the preceding group, the relevant petitioner’s
prognosis was “good,” but these higher award cases were characterized either by a
longer duration of injury or by the need for surgical repair. Thus, seven out of eight
underwent some form of shoulder surgery, while one (Cooper) experienced two full years
Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and $336.20 in past unreimbursable medical
expenses).
31
These cases are: Nute v. Sec’y of Health & Human Servs., No. 18-0140V, 2019 WL 6125008 (Fed. Cl.
Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for pain and suffering); Kelley v. Sec’y of Health & Human
Servs., No. 17-2054V, 2019 WL 5555648 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (awarding $120,000.00 for
pain and suffering and $4,289.05 in unreimbursable medical expenses); Wallace v. Sec’y of Health &
Human Servs., No. 16-1472V, 2019 WL 4458393 (Fed. Cl. Spec. Mstr. June 27, 2019) (awarding
$125,000.00 for pain and suffering and $1,219.47 in unreimbursable medical expenses); Reed v. Sec’y of
Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (awarding
$160,000.00 for pain and suffering and $4,931.06 in unreimbursable medical expenses); Knudson v. Sec’y
of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 for pain and suffering and $305.07 in unreimbursable medical expenses); Cooper v. Sec’y of
Health & Human Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding
$110,000.00 for pain and suffering and $3,642.33 in unreimbursable medical expenses); Dobbins v. Sec’y
of Health & Human Servs., No. 16-0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding
$125,000.00 for pain and suffering and $3,143.80 in unreimbursable medical expenses); Collado v. Sec’y
of Health & Human Servs., No. 17-0225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding
$120,000.00 for pain and suffering and $772.53 in unreimbursable medical expenses).
18
of pain and suffering, eight months of which were considered significant, and also
required extended conservative treatment. On the whole, MRI imaging in these cases
also showed more significant findings, with seven of eight showing possible evidence of
partial tearing.32 No MRI study was performed in the Cooper case.
During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale, and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately (e.g., within five to 45 days from onset). Duration of physical therapy
ranged from one to 28 months and six out of the eight had cortisone injections.
iii. Awards including compensation for both past and future pain and
suffering
In only three prior SPU SIRVA cases (all of which have been referenced in this
case) has a petitioner been awarded compensation for both past and future pain and
suffering.33 In two (Hooper and Binette), petitioners experienced moderate to severe
limitations in range of motion and moderate to severe pain. The Hooper petitioner
underwent surgery, while in Binette petitioner was deemed not a candidate for surgery
following an arthrogram. Despite significant physical therapy (and surgery in Hooper),
medical opinions indicated that the relevant petitioner’s disability would be permanent. In
these two cases, petitioners were awarded above-median awards for actual pain and
suffering as well as awards for projected pain and suffering for the duration of their life
expectancies.
32
In Reed, MRI showed edema in the infraspinatus tendon of the right shoulder with a possible tendon tear
and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness partial
tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial thickness
tear of the tendon, tear of the posterior aspects of the inferior glenohumeral ligament, and moderate sized
joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a partial bursal
surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild longitudinally
oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and infraspinatus
tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the posterior-superior-
lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site, and minimal
subacromial-subdeltoid bursitis.
33
These cases are: Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed.
Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for projected
pain and suffering, and $7,101.98 for past unreimbursable medical expenses); Hooper v. Sec’y of Health
& Human Servs., No. 17-0012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years for projected
pain and suffering, $37,921.48 for lost wages).
19
In the third case (Dhanoa), the petitioner’s injury was less severe than in Hooper
or Binette. However, the petitioner had been actively treating just prior to the case
becoming ripe for decision and her medical records reflected that she was still
symptomatic despite a good prognosis. These petitioners were awarded an amount
below-median for actual pain and suffering, but, in light of the facts and circumstances of
the case, also awarded projected pain and suffering.
VI. Appropriate Compensation in this SIRVA Case
Petitioner acknowledges that the majority of her pain and suffering occurred during
the year after vaccination and that she showed significant improvement post-surgery. The
overall record shows Petitioner’s SIRVA was much improved by the end of May 2017,
approximately three months after surgery and less than eight months after vaccination.
Indeed, by August 21, 2017, Petitioner exhibited few symptoms, and her post-surgical
treatment ceased on September 15, 2017, eleven months after vaccination.
When Petitioner was seen by her new PCP five days later, she did not report any
SIRVA symptoms. The only reference to Petitioner’s shoulder injury was the inclusion of
her March 2017 surgery under her history. There is no evidence of treatment from mid-
September 2017 until early October 2019. When Petitioner returned to her orthopedist for
a recheck of her right shoulder on October 2, 2019, she reported only occasional and mild
symptoms. No medication or further treatment was prescribed.
A. Past 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 her
awareness of her injury. Therefore, I analyze principally the severity and duration of
petitioner’s injury.
i. Severity and Duration of Injury Prior to Surgery
The overall record in this case shows that, prior to vaccination, Petitioner suffered
chronic back and hip pain and weakness in her lower extremities. Exhibit 2 at 5-20. She
was prescribed extra strength Tylenol and Meloxicam which appeared sufficient to control
her pain. While being treated for her SIRVA, Petitioner did not complain of pain in these
other areas. It appears, however, that she continued taking Meloxicam and Tylenol. See,
e.g. Exhibit 6 at 6.
Although she did not seek treatment for her SIRVA until approximately 60 days
after vaccination, Petitioner explained that this delay was due to the death of a friend.
20
Exhibit 3 at 10. I also do not find a two-month delay in seeking treatment to be particularly
suspicious or questionable. When Petitioner first sought treatment from her PCP on
December 1, 2016, she described her condition as “very painful.” Exhibit 2 at 3. An MRI
performed on December 6, 2016 showed a partial rotator cuff tear and mild tendinosis but
also mild osteoarthritis. Exhibit 4 at 1-2.
When seen by an orthopedist approximately two weeks later, Petitioner indicated
that taking two Advil at night was not helping with her pain. Exhibit 6 at 5. At this visit, her
active ROM was assessed at 140 degrees with pain at the extremes. Id. at 6. She was
prescribed a prednisone taper and PT. It appears the prednisone alleviated approximately
50 percent of her pain for a few weeks at most. Id. at 2.
At her first PT session, Petitioner described her pain as aching, rating its level as
between 3 to 7 on a scale of 10. Exhibit 7 at 69. Showing a slightly more limited ROM,
Petitioner was assessed as having a 36 percent loss of functionality. Her ability to perform
most daily tasks were ranked at 4 or 5 out of 10. Id. Petitioner continued to experience
the same moderate to severe level of pain throughout the nine PT sessions she attended
but her ROM continued to gradually decrease. E.g., id. at 57.
It is clear that, prior to her surgery, from the time she received the flu vaccine on
October 17, 2016 until approximately five months later, Petitioner reported moderate to
severe pain in her right shoulder, estimating the level of her pain somewhere between 3
to 8 on a scale of 10. A prednisone taper gave Petitioner a few weeks of temporary relief,
but her pain returned shortly thereafter. Despite attending nine PT sessions from late
December 2016 to early February 2017, Petitioner continued to experience a gradual
reduction in her ROM.
I do not doubt Petitioner’s condition resulted in the difficulties described in the
affidavits from Petitioner, her daughter, and her husband during this time. Especially
difficult for Petitioner was the additional stress this placed on her and her family as she
attempted to maintain the consistency needed when caring for her twin sons, one of whom
has been diagnosed with autism.
ii. Severity and Duration of Injury Following Surgery
When performing Petitioner’s arthroscopic surgery on March 15, 2017, Dr. Bischoff
observed that Petitioner’s bursa was enlarged and bloody but saw no tears needing
repair. He performed a bursectomy and used a shaver to debride Petitioner’s bursa and
other areas. Exhibit 3 at 13-14.
21
Approximately two days after her surgery at her first post-surgical PT session,
Petitioner reported aching and intermittently sharp pain at a level of 0 to 9 out of 10.
Exhibit 7 at 52. She had been instructed not to move her arm and her right shoulder ROM
was recorded as 35 degrees for flexion and 25 degrees for abduction. In contrast,
Petitioner exhibited left shoulder ROM of 150 and 130 degrees. Id. at 53. Five days later,
her right shoulder ROM had improved to 100 degrees externally, with internal rotation of
40 degrees. Exhibit 3 at 4. At that orthopedic appointment on March 24, 2017, Petitioner
indicated she was controlling her pain with over the counter medication. Id.
For the next two months, Petitioner attended 21 PT sessions. Exhibit 7 at 8-9, 21-
23. By May 30, 2017, she was noted to be 60-70 percent improved. Her ROM had almost
returned to normal. Her ability to perform all daily tasks was recorded as 8 out of 10. Id.
at 21. At Petitioner’s next orthopedic appointment, she reported that she was
experiencing some aching but was otherwise good. It was noted that she had finished PT
but would be attending WellFit sessions. Exhibit 3 at 16.
Petitioner attended approximately 24 Wellfit sessions from June to mid-September
2017. Exhibit 12 at 3-7. During this time, she was seen once more by her orthopedist, Dr.
Bischoff. Exhibit 3 at 17. Exhibiting good ROM at this August 21, 2017 appointment, 160
degrees for external movement and 50 degrees for internal rotation, Petitioner reported
further improvement over the last month. Petitioner’s rotator cuff strength was noted to
be 5- out of 5. Id.
The overall record shows that Petitioner’s pain continued after her surgery but that
she experienced significant improvement by the end of May 2017. Her improvement
continued until September 2017 when she stopped attending even the WellFit exercise
program. Any pain and suffering experienced by Petitioner after this point appears to be
minimal. It certainly was not sufficient enough to require further medical care.
The affidavits from Petitioner’s daughter and husband are consistent with this
description. Both discuss difficulties during and immediately after Petitioner’s surgery,
including the need for Petitioner’s husband to take time off from work during the week
following Petitioner’s surgery. Exhibit 14 at ¶ 4; Exhibit 15 at ¶ 5. Petitioner’s husband
also discusses the six-month period thereafter from early March to early September 2017.
Neither alleges difficulties after that date. Exhibit 15 at ¶ 5.
iii. Comparison to Other Past Pain and Suffering SIRVA Awards
Overall, the circumstances in Petitioner’s case are most like those experienced by
the petitioner in the Nute case, in which the petitioner was awarded $125,000.00 for her
past pain and suffering. 2019 WL 6125008, at *1, 12-13. Initially the Nute petitioner’s pain
22
was severe, reported to be 8-10 on a scale of 10. After her second cortisone injection,
performed two months after vaccination in mid-November 2016, the Nute petitioner
obtained some relief. Id. at *2. However, her pain returned to the previous levels after
approximately four months thereafter in March 2017. It stayed at that level until her
surgery in June 2017. Id. at *3. Thus, the Nute petitioner suffered slightly more severe
pain than that suffered by Ms. Rafferty in this case for a similar duration of time.
During the entire nine months before surgery, the petitioner in Nute suffered a
significantly limited ROM, more than experienced by the Petitioner in this case. 2019 WL
6125008, at *12. For example, less than two months after vaccination, the Nute
petitioner’s external ROM had decreased from 60 to 30 degrees, and she was diagnosed
with probable adhesive capsulitis. Id. at *1. In contrast, at that same point in time,
Petitioner’s ROM was assessed at 140 degrees. Exhibit 6 at 6. Additionally, the surgery
undergone by the Nute petitioner was more extensive than the surgery undergone by
Petitioner, as it included a biceps tenodesis.34 2019 WL 6125008, at *3.
Admittedly, however, many facts suggest the Nute petitioner’s pain and suffering
was somewhat less than that suffered by Petitioner. For example, the pain experienced
by Petitioner prior to surgery was more consistent than that suffered by the petitioner in
Nute. Petitioner obtained relief for only a few weeks from her prednisone taper.
Additionally, the Nute petitioner experienced a much quicker recovery following surgery.
She attended a similar amount of PT sessions (19) but in a more compact period of time
(one month). 2019 WL 6125008, at *3-4. By one and one-half months after her surgery,
the Nute petitioner had recovered from her SIRVA. Id. at *4.
Although the Nute petitioner, as an emergency room nurse, must have had
difficulty performing her normal duties, her inability to perform certain work-related tasks
is still not comparable to the difficulties Petitioner must have suffered while attempting to
care for her children. As the primary caretaker for her sons, one of which has autism, she
would have been impacted by her injury throughout the day. Additionally, her inability to
explain her difficulties to her young sons would have compounded Petitioner’s suffering.
Thus, I find that the slightly greater severity of the Nute petitioner’s symptoms prior to
surgery is countered by her quicker recovery and slightly less difficult circumstances. I
find the Petitioner in this case should be awarded slightly more than the petitioner in Nute.
I do not find, however, that relevant cited precedent supports an even higher
award. Petitioner claims that her pain and suffering was greater than that of the petitioner
in Reed, who suffered pain at levels of 6-9 out of 10 while attending more than 13 PT
34
Tenodesis is “the stabilization of a joint by anchoring a tendon to a bone, done either surgically or through
use of an orthosis.” DORLAND’S at 1882.
23
sessions for the six months prior to her surgery and on a level of 3-6 out of 10 while
attending 18 PT sessions for four months post-surgery. Reed, 2019 WL 1222925, at *3-
9, 15. Four months after her surgery, the Reed petitioner was forced to seek treatment
from a pain management specialist. Id. at *6-7. Two years after her injury, the Reed
petitioner continues to take a strong opioid medication to manage her pain. Id. at *9, 11.
Like the petitioner in this case, the Reed petitioner’s son has autism. Id. at *10-11. The
petitioner in Reed was awarded $160,000.00 for her past pain and suffering. Id. at *1, 18.
But it is clear from the record that the severity and duration of Petitioner’s pain and
suffering was less than that suffered by the petitioner in Reed.
I agree there are multiple similarities between the facts in this case and those in
Selling which is cited by Respondent in defense of a more modest pain and suffering
award. However, there is one substantial difference, in that the Petitioner in this case
underwent arthroscopic surgery during which several portals where created and
debridement of multiple areas was performed. In contrast, the petitioner in Selling
underwent only a manipulation. 2019 WL 3425224, at *2.
Respondent also cites multiple awards for shoulder injuries in the traditional tort
system. Res. Brief at 7-8 (cases cited attached Appendix A). However, Respondent
provides only a cursory amount of information regarding how these cases were chosen,
some basic information about the type of injury suffered, but no information regarding the
severity and duration of these injuries. Thus, I find they are not helpful when determining
the appropriate amount of damages in this case. By contrast, SIRVA awards in the
Vaccine Program are self-evidently more relevant and apposite, when viewed in light of
Petitioner’s specific circumstances.
iv. Amount of Award for Past Pain and Suffering
In determining Petitioner’s entitlement award, I do not rely on a single decision or
case. Rather, I have reviewed the particular facts and circumstances of her case, giving
due consideration to the circumstances and damages in the cases cited by the parties
and other relevant cases, as well as my knowledge and experience adjudicating SIRVA
injury cases. For all the reasons discussed in this section, I find that $127,500.00
represents a fair and appropriate amount of compensation for Petitioner’s actual/past pain
and suffering.
B. Projected/Future Pain and Suffering
In her second affidavit and damages brief, Petitioner maintains that she continues
to suffer right shoulder pain which, although not constant, impacts her ability to complete
certain tasks and care for her sons. Exhibit 16 at ¶ 1; Pet. Brief at 8. Asserting that her
24
pain will increase unless she routinely performs her prescribed PT exercises, Petitioner
seems to argue that she has experienced pain since ceasing treatment in September
2017. Exhibit 16 at ¶¶ 1-2. In her brief, Petitioner asserts that she continued to suffer pain
from vaccination to the present. Characterizing her improvement following surgery as
“moderate” (Pet. Brief at 7), she states that her “residual shoulder pain is well beyond
what she anticipated three and a half years post- vaccination” (id. at 8). By the end of her
brief, Petitioner claims that she “suffered near constant pain for over two years . . . on a
daily basis.” Id. at 17 (emphasis in the original).
Petitioner’s assertions, however, are not support by the record in this case. Even
the affidavits provided by her daughter and husband do not allege Petitioner continued to
experience right shoulder pain after September 2017. See Exhibits 14-15. There is no
evidence, other than Petitioner’s allegations, that she suffered pain or other symptoms
during the two-year gap in treatment following her last WellFit visit in September 2017.
Certainly, there is no evidence she sought medical treatment during this time.
When Petitioner was seen again by Dr. Bischoff on October 2, 2019, the visit is
described as a recheck of her injury. Exhibit 13 at 1. At that visit, Petitioner reports only
residual soreness and stiffness and some difficulties when she goes to the gym. Id. Dr.
Bischoff does opine that Petitioner’s stiffness and soreness is permanent and attributable
to scar tissue from her right shoulder surgery but adds that further treatment is not
warranted. Id. at 2. There is nothing in the record indicating Petitioner is taking or requires
medication for her discomfort.
Ms. Rafferty compares her current condition to that of the petitioners in Hooper,
Binette, and Curri, arguing that she is entitled to more compensation for future pain and
suffering than that awarded to the petitioners in Binette and Curri and the same as that
awarded the petitioner in Hooper. Pet. Brief at 14-18. It is important to stress, however,
that the petitioner in Hooper was assessed as having a permanent disability of 50 percent,
i.e. a permanent partial loss of functionality in his left arm. 2019 WL 1561519, at *9-10. In
Curri, the petitioner’s treating physician determined she suffered a permanent loss of left
arm function in the amount of 22.5 percent. 2018 WL 6273562, at *2. And although the
petitioner in Binette was not assessed as having a permanent loss of function, after
extensive treatment she was told she was not a candidate for surgery and no further
treatment was available to her. At that visit, she reported pain at a level of 5 out of 10.
2019 WL 1552620, at *2. She later testified that her pain remained constant at a level of
5 or higher. Id. at *13.
While I accept that Petitioner in this case will continue to experience some
soreness and stiffness due to scar tissue from her surgery, her circumstances are not
comparable to the petitioners who received compensation for future pain and suffering.
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There is nothing to indicate the Petitioner in this case has or will suffer a loss of function
like the petitioners in Hooper and Curri, or was suffering the constant levels of pain
experienced by the petitioner in Binette. Dr. Bischoff does not refer to Petitioner’s
discomfort as pain, but only using terms like stiffness and soreness. And unlike the
petitioner’s treating physician in Binette, Dr. Bischoff does not indicate that further
treatment is unavailable, but rather that he “do[es] not believe any further treatment is
warranted.” Exhibit 13 at 2.
I therefore find, in light of my review of the record as well as applicable prior SIRVA
pain and suffering determinations, that Petitioner has not provided preponderant evidence
to support an award for projected/future pain and suffering.
C. Actual Costs and Expenses
The parties agree that Petitioner is entitled to reimbursement of expenses in the
amount of $4,154.04. Additionally, Petitioner has filed supporting documentation
regarding these out-of-pocket expenses. Exhibit 17. I have reviewed this documentation
and agree that Petitioner is entitled to the full amount of compensation sought for these
past, out of pocket expenses.
VII. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $127,500.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.35 I also find that Petitioner
is entitled to $4,154.04 for her actual out-of-pocket costs. I find that an award for
projected pain and suffering is not warranted in this case.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $131,654.04, representing compensation in the amount of
$127,500.00 for Petitioner’s past pain and suffering and in the amount of $4,154.04
for Petitioner’s actual expenses in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under Section
15(a).
35
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
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The clerk of the court is directed to enter judgment in accordance with this
decision.36
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
36
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.
27