Desai v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 21, 2020

*********************

KAVITA DESAI, * UNPUBLISHED

*

* No. 14-811V

Petitioner, *

v. * Special Master Gowen

*

* Ruling on Damages; Influenza

SECRETARY OF HEALTH * (Flu) Vaccine; Shoulder Injury

AND HUMAN SERVICES, * Related to Vaccine Administration

* (SIRVA).

Respondent. *

*********************

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.

Camille M. Collett, Department of Justice, Washington, D.C., for respondent.

RULING ON DAMAGES1

On September 4, 2014, Kavita Desai (“petitioner”), filed a petitioner for compensation

under the National Vaccine Injury Compensation Program.2 Petitioner alleges that she suffered a

right shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an

influenza (“flu) vaccination on November 15, 2012. Petition at Preamble. (ECF No. 1). On July

30, 2020, I issued a Ruling on Entitlement, finding petitioner entitled to compensation.

After a full review of all the evidence and testimony presented at the entitlement and

damages hearing, I find the petitioner is entitled to an award of damages in the amount of

1

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the

opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:

(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the

opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.

2

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine

Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)

(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of

the Act.

1

$125,000.00 for past pain and suffering, $1,772.60 for past unreimbursable medical expenses

and $1,000 per year for her life expectancy of thirty years for future pain and suffering and

$60,886.60for life care plan items including physical therapy. The latter two damages to be

reduced to present value.

I. Relevant Procedural History

The procedural history of this case was summarized in the Ruling on Entitlement, issued

on July 30, 2020. The procedural history from that ruling is incorporated in its entirety and will

not be repeated here.

II. Relevant Factual History

The factual history in this case was detailed extensively in the Ruling on Entitlement.

See Entitlement Ruling. The facts discussed below are relevant to petitioner’s damages.

The petitioner was born on November 23, 1964, and received a flu vaccination in her

right, dominant arm on November 15, 2012. Petitioner’s Exhibit (“Pet. Ex.”)1. Petitioner was

sworn in as a United States citizen on December 14, 2012. Pet. Ex. 17. Petitioner is a physician

and was working as a medical researcher at Mount Sinai Hospital in New York. In January 2013

she returned to India to care for an aging and ill father. As of the time of the hearing petitioner

had split her time between her father’s home in India and in New York City. There was no

evidence of prior shoulder pain or dysfunction.

Petitioner testified that she experienced pain in her right shoulder shortly after receiving

the flu vaccination and that “as soon as [she] reached home there was significant pain on my

right shoulder.” Tr. 49. She stated that she thought that the pain would subside, but as the

evening progressed petitioner “felt a lot of heaviness and pain-which wasn’t normal for other

injections.” Id. She applied ice on her right shoulder and took pain medication to soothe the

pain. Id. Petitioner stated that the pain continued through the next day, but she thought it would

go away, as some shots are more painful than others. Id. She testified that the pain would not

cease. Id. By mid-December, she could not move her right arm all the way up when she went to

take a shower. Tr. 49-50. She stated that slowly she could not comb her hair on the right side or

put her arm in the right sleeve of her jacket. Tr. 50

In late January she left for India and experiencing a lot of pain in her right shoulder. Tr.

50. She stated that once she reached India, she contacted Dr. Shah because her arm was

“freezing.” Id. She testified that between November 15, 2012, the day of the vaccination, and

her first appointment with Dr. Shah on February 28, 2013, her right shoulder condition did not

improve. Tr. 51. She stated that instead, her arm was getting progressively stiffer. Id. Petitioner

stated that she was unable to perform day to day personal activities because she is right hand

dominant. Id. She explained that even when she was at rest, she was feeling pain and her day-

to-day activities were getting limited. Tr. 54.

On February 28, 2013, petitioner sought treatment from Dr. Harsh Shah. Tr. 38; Pet. Ex.

3 at 1. Dr. Shah observed that that petitioner has bicipital tenderness and abduction/internal

2

rotation was “painfully limited.” Id. Dr. Shah diagnosed petitioner with “impingement

syndrome” and referred her for physical therapy the same day. Id.

During petitioner’s initial consult with Megha Sheth, physical therapist, it was noted that,

“[Petitioner] present[ed] with severe frozen shoulder/ adhesive capsulitis of right shoulder joint.

[Petitioner] first received a flu shot intramuscularly on 15 Nov 2012. The IM injection site on

right deltoid region started to hurt soon after injection on the same day. [Petitioner] assumed that

the pain was due to flu vaccination and that it would go away after some time. Gradually,

however, the right shoulder started to become significantly painful, inflamed, stiff, restrictive and

weak. The patient is right-handed and right arm is her dominant arm.” Pet. Ex. 12 at 1. In the

“current condition,” section of the record, it states, “Due to severe pain, stiffness, inflammation

and weakness, it is excruciatingly painful and difficult for patient to move her right arm and

perform day to day activities.” Id. A physical exam revealed that petitioner had normal range of

motion and strength with her left shoulder but had deficits in her right shoulder active range of

motion. Id. at 3. The record for that visit noted that petitioner had an internal rotation of the right

arm of only 28 degrees and external rotation of 25 degrees; her abduction was limited to 100

degrees and flexion limited to 110 degrees. Id. Petitioner was positive for Spurling’s Test and

the Empty Can Test on the right shoulder and negative on all special shoulder tests on the left

shoulder. Id. It was recommended that petitioner begin physical therapy and recommended that

she engage in strength exercises, moist heat therapy to increase local circulation and decrease

pain and inflammation; active and passive stretching to increase joint range of motion; peripheral

joint mobilization/cryotherapy which is the application of cold to decrease local swelling and

decease pain. Id. at 4.

Petitioner continued extensive physical therapy with Megha Sheth through July 2013.

On the last day of her physical therapy with Megha Sheth, it was noted that petitioner “did not

improve on the prescribed treatment she received at the center in more than 4 months.” Pet. Ex.

12 at 74. Petitioner reported that her pain was not improving and she was going to continue

further treatment when she came to the United States. Id.

On July 26, 2013, petitioner had an appointment with Dr. Steven Lager. Pet. Ex. 5 at 1.

Petitioner reported “2% pain when sitting and not using her shoulder but severe pain when she

was using the shoulder.” Id. The physical exam showed petitioner had “extraordinarily tight

right glenohumeral joint with reduced passive range of motion, tenderness in the mid-humerus

below the deltoid insertion, and pain in the restricted abduction. Id. Dr. Lager diagnosed

petitioner severe right shoulder capsulitis, “that did not respond to 4 months of physical therapy.”

Id.

Petitioner had a sports medicine appointment on August 8, 2013 with Dr. Darlene K.

Jean-Pierre. Pet. Ex. 2 at 38. The clinic note states, “48 yF RHD referred to sports clinic for

evaluation and treatment of R shoulder pain/stiffness s/p flu shot in 11/2012.” Id. It was noted

that petitioner had “diffuse tenderness to palpation” on her right upper extremity and she had a

positive impingement sign. Id. Petitioner also demonstrated “some weakness with supraspinatus

test.” Id. Dr. Jean-Pierre diagnosed petitioner with adhesive capsulitis of shoulder and

administered a subacromial/intraarticular injection. Id. During the course of her therapy she also

received a ten day course of Prednisone which was not helpful.

3

On August 12, 2013, petitioner had an occupational therapy shoulder evaluation. Pet. Ex.

2 at 42. It was reported that petitioner’s diagnosis was “right shoulder adhesive capsulitis.” Id.

It was also noted that petitioner’s dominate extremity was her “right.” Id. The history of

treatment stated, “…right shoulder pain since 11/2012 s/p flu shot, received aggressive PT in

India (illegible) improvements, s/p injection subacromial region by sports on 8/8/2013.”

Petitioner reported that she had pain in her right shoulder in all directions at an 8/10. Id. She

demonstrated limited range of motion in all directions. Id. at 43. Petitioner had her second

occupational therapy appointment on August 16, 2013. Id. at 46. She reported “much improved

pain” in the right shoulder, indicating that it was a 2/10 while at rest. Id. Petitioner had three

other occupational therapy appointments in August 2013. Id. at 47-9. At the August 29, 2013

visit, petitioner reported that she was traveling for two weeks. Id. at 49. Petitioner returned to

occupational therapy on October 4, 2013. Id. at 51. She reported reduced pain in her right

shoulder and that she had been compliant with home treatments as much as possible. Id. She

had another occupational therapy appointment on October 11, 2013. Id. at 52. At this

appointment, she reported her pain as a 1/10. Id.

On April 15, 2014, petitioner presented to Performance Rehabilitation for an initial

evaluation. Pet. Ex. 7 at 1. It was recorded that petitioner received a flu vaccination in

November 2012 and that she developed frozen shoulder. Id. at 1. During the initial physical

therapy evaluation, petitioner demonstrated reduced range of motion of her right shoulder on

active movement. Id. Petitioner had a positive drop arm test, positive impingement test and

positive Spurling test. Id. Petitioner was assessed with right frozen shoulder with secondary

bicipital tendinitis and some symptoms consistent with cervical radiculopathy. Id. Petitioner

had physical therapy appointments at Performance Rehabilitation for the next six weeks. Pet.

Ex. 7. At an appointment on May 13, 2014, petitioner reported that her shoulder was “getting

better little at a time,” and that her pain had been reduced. Id. at 18. On May 22, 2014,

petitioner reported a “significant reduction in pain and improved [range of motion], strength and

mobility,” however, petitioner continued to report “difficulty and limitations in her ability to lift

and reach overhead, behind her back and still has pain with activity.” Id. at 22. She reported her

pain at a 1/10 at best and a 5/10 at worst. Id. On June 4, 2014, at another physical therapy

appointment, petitioner reported that “her shoulder is significantly better. She feels her range is

a lot looser and is able to reach behind her back better.” Id. at 28. Later in the month, on June 9,

2014, petitioner reported, “…significant range improvements day to day. Much easier reaching

behind [her] back. Pain only with reaching across body.” Id. at 32.

Petitioner had a follow-up appointment with Dr. Wanich on June 12, 2014. Pet. Ex. 8 at

1. In the history, he noted that petitioner “has demonstrated improvement with physical

therapy.” Id. After a physical exam of her right shoulder, he assessed petitioner with right

shoulder adhesive capsulitis. Id. at 4. He wrote that petitioner had responded well to physical

therapy, but “still lacks [internal rotation/external rotation],” and he gave her a new physical

therapy referral. Id.

When petitioner returned to India in December 2014, she re-established physical therapy

care at the Institute for Physical Medicine. Her history at that time noted that petitioner had

aggressive physical therapy from February to July 2013 in India and again in the U.S. Id.

4

Petitioner reported that the pain was at worst a 3/10 and at rest a 0-1/10. Id. She reported mild

limitation when trying to lift objects and mild to difficult when trying to reach overhead. Id. A

physical examination of the shoulder revealed some limitation on external rotation and internal

rotation, along with decreased strength (4/5) on the right shoulder compared to the left shoulder.

Id. at 3. Physical Therapist Komal Patel assessed petitioner, noting, “Signs and symptoms are

consistent with residual right frozen shoulder with bicipital tendinitis. Signs and symptoms are

also consistent with cervical radiculopathy. Id. It was recommended petitioner engage in

physical therapy for the right shoulder, including strengthening and stabilizing exercises, as well

as, certain passive movements to improve range of motion. Id. Petitioner had physical therapy

appointments from December 10, 2014 to April 28, 2017 in India. See Pet. Exs. 13, 18, and 25.

On September 29, 2016, petitioner had an MRI of her right shoulder at InFocus

Diagnostics in Ahmedabad, India. Pet. Ex. 16. The MRI revealed a thin strip of fluid in the

subacromial subdeltoid bursa with heterogeneous content and capsular thickening, mild effusion

in the acromioclavicular joint with capsular fullness, degenerative signal changes in the antero-

superior glenoid labrum and mild edematous changes in the rotator cuff interval space (mild

changes of adhesive capsulitis). Id. The impression of the MRI was tendinosis involving

anterior fibers of supraspinatus tendon, changes of subacromial subdeltoid bursitis and mild

effusion involving AC joint with capsular fullness. Id.

By August 2017, petitioner stated that she had a dull, continuous aching pain and some

sleep disturbances, but that were “not as severe as in 2013 or 2014.” Tr. 120. She felt she

reached a plateau of residual problems and needed a break from physical therapy. Id. In

December 2017, she was “feeling much better,” but still experienced some pain reaching behind

her back and overhead, which she considered “normal.” Id.

On May 4, 2018, petitioner had another appointment with Dr. Gregory DiFelice. Pet. Ex.

27. In petitioner’s history, it was noted that she was right hand dominant who has had right

shoulder pain and stiffness “for several years after receiving the flu shot.” Id. at 1. Dr. DiFelice

performed a focused physical exam of the right shoulder which showed active forward flexion 1-

160 degrees, abduction was 1-160 degrees, external rotation was 0-60 degrees and active internal

rotation to T12, all with good kinematics. Petitioner’s strength was 5/5 in the plane of the

scapula; 5-/5 in external rotation; and 5-/5 in subscapula. Id. at 2. She had a negative Spurling’s

test, but positive impingement signs. Id. Dr. DiFelice diagnosed petitioner with chronic rotator

cuff syndrome, possibly related to flu shot. Id. He recommended petitioner continue at home

exercises, ice and over-the-counter NSAIDs and Tylenol as needed for pain control. Id.

Petitioner testified that “some background pain is always there.” Tr. 121. She explained

that “during good seasons, when I don’t overstretch or overwork [her] arm,” she feels good about

her movements, sleep and activities. Tr. 121. But during the monsoon season or colder months,

her pain would come back. Id. She testified that by March 2018, she reported to her physical

therapist that she had pain in her right shoulder, but had improvement in movement since the

wintertime. Tr. 124. She stated that since March 2018, her shoulder issues had remained stable

and she had been feeling much more comfortable sleeping and in her movements. Tr. 125.

5

Petitioner described a variety of activities that can aggravate her right shoulder, including

vacuuming, carrying more than six pounds in her right hand, or carrying a large bag. Tr. 130-31.

She stated that she purchased a specialized cart to assist her with grocery shopping. Tr. 133.

During the hearing, petitioner demonstrated her range of motion in her right shoulder. Tr. 136.

During the hearing, she was able raise her left arm about 180 degrees (normal)but her right arm

only to 150 degrees. Id. When asked about reaching behind her back, she was able to get to

about the T-5 level (normal) with the left arm but only to the T-12 level with the right. Tr 135.

She testified that all of the treating physicians she has seen for her right shoulder told her she

would experience residual problems with her right shoulder forever. Tr. 146.

IV. Contentions of the Parties

A. Petitioner’s Position

Petitioner proposes an award of $250,000 for past pain and suffering, the most allowed

for pain and suffering cases in the Vaccine program under the statutory cap. Pet. Post-Hearing

Brief at 17. Petitioner contends that her “life is now a life of pain, with severely limited use of

her right dominate arm.” Pet. Post-Hearing Brief at 18. She argues that her injury is a “severe

and permanent injury, which impacts all aspects [of her life].” Id. Petitioner stated in her post-

hearing brief that “she wakes up to pain…lives with pain during the day and she goes to sleep

with pain, which wakes her up at during the night.” Id. at 19. This “constant ‘background’ pain’

justifies her being awarded the maximum amount of that can be awarded for pain and suffering

in the vaccine program of $250,000. Id. at 18-19.

Petitioner cites to Graves v. Sec’y of Health & Human Servs to support an award of

$250,000 in pain and suffering. Petitioner stated that Graves, “instructed that pain and suffering

awards should be considered in light of the overarching purpose of the Vaccine Act to award

compensation.” Pet. Post-Hearing Brief at 18; see also Graves v. Sec’y of Health & Human

Servs., 109 Fed. Cl. 579, 595 (2013). Petitioner stated that the, “The Court in Graves, observed

numerous cases in which pain and suffering had been experienced even for short durations of

time, but yet had garnered awards far exceeding the statutory cap.” Pet. Post-Hearing Brief at

18.

Petitioner then argues that if petitioner’s past pain and suffering did not reach the

$250,000 cap, then she should be awarded future pain and suffering for years until the future,

until the statutory cap is reached. Pet. Post-Hearing Brief at 19. She stated that, “through an

economist, reduce the future award to its net present value, pursuant to the Federal Circuit’s

holding in Youngblood.” Id.; Youngblood v. Sec’y of Health & Human Servs., 32 F. 3d. 552, 555

(Fed. Cir. 1994).

Petitioner also requests reimbursement for out-of-pocket expenses totaling $1,772.62;

one physical therapy appointment per week until 2029, totaling $3,050.32; and future care items

identified in the life-care plan. Pet. Post-Hearing Brief at 20-27.

B. Respondent’s Position

6

Respondent argued that petitioner’s ongoing left shoulder injury is rotator cuff syndrome,

which was the result of a natural aging process and is a separate injury from petitioner’s initial

adhesive capsulitis. Resp. Post-Hearing Brief at 17. As noted in the entitlement decision, I did

not find that petitioner’s rotator cuff syndrome was a separate injury, but instead likely a

sequalae of her SIRVA.

Respondent argues that, “Special Masters have awarded comparatively less severely

injured petitioners comparatively less in pain and suffering.” Id. at 18. Respondent cites to

Hocraffer, where former Chief Special Master Golkiewicz stated, “to fairly treat all petitioners,

the Special Masters have attempted to create a continuum of injury, awarding the highest pain

and suffering to the most injured and reducing the pain and suffering for lessor injuries.” Resp.

Post-Hearing Brief at 18; Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2007 WL

914914 at *5 (Fed. Cl. Spec. Mstr. Feb. 28, 2007). Respondent also agreed with the approach set

forth in Graves, stating, “The Court in Graves set forth its own approach, whereby a special

master would first determine the amount of pain and suffering damages, without regard to the

$250,000 cap. Then, if necessary, the special master would apply the statutory cap…Respondent

agrees with Graves to the extent it calls for an individualized assessment of damages based on

the specific facts of petitioner’s case.” Id. at 18.; Graves, 32 F. 3d, 589-90.

Respondent then argues that the plain text of the statute limiting actual and projected pain

and suffering and emotional distress to $250,000, “contemplates that at least some petitioners

would be awarded less than the statutory maximum.” Resp. Post-Hearing Brief at 19.

Respondent stated that he approached the valuation of pain and suffering in this case by

examining the individual aspects of petitioner’s case, including degree of injury, the duration,

and the extent of any disability alongside a general aim that seeks to compensate similarly

situated claimants justly, in a similar way. Id. Respondent stated that petitioner reports her daily

pain is a 1 to 1.5 out of 10; she was found to have normal range of motion and pain consistent

with rotator cuff syndrome; and she is volunteering as a pediatrician at a local clinic in India

three to four days per week. Id. at 20. Respondent acknowledged that petitioner had a steroid

injection but pointed out that she did not have arthroscopic surgery, and thus should be awarded

$75,000.00 for pain and suffering. Id. at 20.

V. Discussion

1. Petitioner’s Pain and 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.” 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 & Human Servs., No. 93-0092V, 1996 WL

147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).

7

There is no mathematical 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 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)).

A special master may also consider prior pain and suffering awards to aid the 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.”). A

special master may rely on my own experience adjudicating similar claims. 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).

In Graves¸ Judge Merow rejected the special master’s approach of awarding

compensation for pain and suffering based on a spectrum from $0.00 to the statutory cap of

$250,000. Graves v. Sec’y of Health and Human Servs., 109 Fed. Cl. 579, 590 (2013). The

Court noted that this constituted “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, the Court 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 the Vaccine Program. Id. at 595.

In that regard, the Special Processing Unit (“SPU”) has amassed a significant history

regarding damages in SIRVA cases. In Vinocur v. Secretary of Health & Human Services,

Special Master Dorsey explained that after five-and-one-half years of SPU, 1,405 SIRVA cases

were resolved informally as of January 1, 2020. Vinocur v. Sec’y of Health & Human Servs.,

No. 17-598V, 2020 WL 1161173, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2020). Special Master

Dorsey noted that the median award for cases resolved via government proffer was $95,000.00

and the median award for cases resolved via stipulation was $70,000.00.3 The history of

3

The total range for all informally resolved SIRVA claims—by proffer or stipulation—spans from $25,000.00 to

$1,845,047.00. Id. at *9 n.13. Importantly, these amounts represent total compensation and typically do not

separately list amounts intended to compensate for lost wages or expenses. The undersigned notes that these figures

represent five-and-one-half years’ worth of past informal resolution of SIRVA claims and represent the bulk of prior

SIRVA experience in the Vaccine Program. However, these figures are subject to change as additional cases resolve

and do not dictate the result in this or any future case. Nor do they dictate the amount of any future proffer or

settlement.

8

informal resolution in SPU “reflects a substantial history of resolutions among many different

cases with many different counsel,” and thus, “the undersigned is persuaded that the full SPU

history of settlement and proffer conveys a better sense of the overall arms-length evaluation of

the monetary value of pain and suffering in a typical SIRVA case.” Kim v. Sec’y of Health &

Human Servs., No. 17-418V, 2018 WL 3991022, at *9 (Fed. Cl. Spec. Mstr. July 20, 2018).

Schnoonover supra.

In addition to recounting the awards in proffered and stipulated cases, former Chief

Special Master Dorsey has also written numerous reasoned decisions awarding damages in

SIRVA cases which include detailed information regarding the basis for the awards.4 Typically,

the primary point of dispute between the parties is the appropriate amount of compensation for

pain and suffering.

a. Petitioner’s Past Pain and Suffering

I have carefully reviewed the testimony, medical records, expert opinions and the parties

briefs in this case. Upon review of the complete record and in consideration of damages

awarded in other SIRVA cases, as well as my own knowledge and experience in evaluating

SIRVA claims, I find that an award of $125,000.00 for past pain and suffering to be reasonable.

Petitioner testified credibly that she initially experienced a severe SIRVA, followed by

months of excruciating pain. Petitioner testified that she experienced pain in her right shoulder

the same evening she received the flu vaccination. The pain continued, along with a restricted

range of motion gradually increasing over the ensuing months. Petitioner explained she did not

seek immediate medical treatment because she believed the pain would go away. When she

finally sought treatment in late February 2013, she was in considerable pain and had a significant

reduction in the range of motion in her right shoulder.

The petitioner underwent extensive physical therapy, multiple times a week, for a period

of five years following the vaccination. The physical therapy in this case is the primary measure

of treatment and persistent nature of the pain and suffering in this case. Petitioner filed six

4

Reed v. Sec’y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1, 2019);

Attig v. Sec’y of Health & Hum. Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19, 2019);

Binette v. Sec’y of Health & Hum. Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019);

Hooper, 2019 WL 1561519; Garrett v. Sec’y of Health & Hum. Servs., No. 18-0490V, 2019 WL 2462953 (Fed. Cl.

Spec. Mstr. Apr. 8, 2019); Weber v. Sec’y of Health & Hum. Servs., No. 17-0399V, 2019 WL 2521540 (Fed. Cl.

Spec. Mstr. Apr. 9, 2019); Bordelon v. Sec’y of Health & Hum. Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl.

Spec. Mstr. Apr. 24, 2019); Pruett v. Sec’y of Health & Hum. Servs., No. 17-0561V, 2019 WL 3297083 (Fed. Cl.

Spec. Mstr. Apr. 30, 2019); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-0261V, 2019 WL 2620957 (Fed.

Cl. Spec. Mstr. May 13, 2019); Wallace v. Sec’y of Health & Hum. Servs., No. 16-1472V, 2019 WL 4458393 (Fed.

Cl. Spec. Mstr. June 27, 2019); Schandel v. Sec’y of Health & Hum. Servs., No. 16-0225V, 2019 WL 5260368 (Fed.

Cl. Spec. Mstr. July 8, 2019); Capasso v. Sec’y of Health & Hum. Servs., No. 17-0014V, 2019 WL 5290524 (Fed.

Cl. Spec. Mstr. July 10, 2019); Kelley v. Sec’y of Health & Hum. Servs., No. 17-2054V, 2019 WL 5555648 (Fed. Cl.

Spec. Mstr. Aug. 2, 2019); Kent v. Sec’y of Health & Hum. Servs., No. 17-0073V, 2019 WL 5579493 (Fed. Cl.

Spec. Mstr. Aug. 7, 2019); Lucarelli v. Sec’y of Health & Hum. Servs., No. 16-1721V, 2019 WL 5889235 (Fed. Cl.

Spec. Mstr. Aug. 21, 2019); Goring v. Sec’y of Health & Hum. Servs., No. 16-1458V, 2019 WL 6049009 (Fed. Cl.

Spec. Mstr. Aug. 23, 2019); Nute v. Sec’y of Health & Hum. Servs., No. 18-0140V, 2019 WL 6125008 (Fed. Cl.

Spec. Mstr. Sept. 6, 2019).

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separate exhibits containing physical therapy treatment records. See Pet. Exs. 7, 12, 13, 18, 25

and 31. The treatments began shortly after she saw the orthopedist, Dr. Shah, in late February

2013. At the end of her first round of physical therapy in July 2013, petitioner reported no

improvement in reduction of pain or shoulder mobility. Pet. Ex. 12 at 74. Her physical therapist

noted that petitioner’s shoulder condition “significantly impairs her social/professional/personal

and recreational life.” Id. When petitioner returned to the U.S., she had an appointment at the

Jacobi Medical Center Orthopedic Clinic on August 8, 2013. Pet. Ex. 2 at 38. Petitioner

reported that she underwent aggressive physical therapy without significant improvement. Id.

At this appointment, petitioner received her only steroid injection. Id.

Petitioner continued with physical therapy until October 2013. Pet. Ex. 2 at 42-52. At

her initial appointment on August 12, 2013, she reported her pain at an 8 out of 10. Id. at 42.

Her active external rotation was listed 35 degrees and her abduction was recorded at 90 degrees.

Id. at 44. At an appointment on December 26, 2013, petitioner reported that she had some

improvement in right shoulder pain after the physical therapy. Id. at 61.

On April 10, 2014, petitioner was still experiencing pain in her right shoulder and sought

treatment from orthopedist, Dr. Tony Wanich. Pet. Ex. 6. She reported her pain to be at a 4 out

of 10. Id. at 1. After a targeted right shoulder exam, where petitioner demonstrated an external

rotation of 50 degrees; abduction of 140 degrees; external rotation to 60 degrees and internal

rotation to her mid-lumbar spine, Dr. Wanich diagnosed petitioner with adhesive capsulitis and

recommended she continue to work with physical therapy. Id. at 4.

Petitioner pursued a very extensive course of physical therapy over a period of

approximately 3.5 years and continues to consistently do a course of home exercises as

prescribed by her physicians. In total, over the course of five years, petitioner had nearly 400

physical therapy appointments. See Pet. Exs. 2, 7, 12, 13, 18, 25 and 31.

The records of physical therapy indicated treatments exclusively focused on the right

shoulder for adhesive capsulitis, tendinitis and bursitis. The records suggested some level of

waxing and waning in her pain, but never resolution and generally indicated goals of reducing

pain and increasing range of motion. An example of the documentation of her pain on

September 23, 2016 by the Bhatt Institute of Physiotherapy therapist said, “There is constant

heavy, sore pain from inside out of her right shoulder joint. Pain is exacerbated by humid and

cold weather. The weakness, residual stiffness and restriction of movement make her feel

uncomfortable. She feels less than normal in her daily activities. Pet. Ex. 18 at 72. The records

also consistently indicated that she was compliant with home exercise programs between visits.

When petitioner had an appointment with Dr. DiFelice in May 2018, he diagnosed her

with right chronic rotator cuff syndrome, “[possibly] related to flu shot,” and recommended a

continued home exercise program. Pet. Ex. 27 at 2. At the last recorded physical therapy

appointment in June 2018, petitioner was reporting her pain at a 2-3 out of ten at its worst and

some pain in the right shoulder while sleeping. Pet. Ex. 31 at 64. Her external rotation was

noted as “within normal limits,” but “with moderate pain.” Id.

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An award of $125,000.00 in past pain and suffering is consistent with other SIRVA

awards where petitioners have had no surgical intervention but had steroid injections and

numerous physical therapy sessions. For example, in Cooper, former Chief Special Master

Dorsey awarded $110,000.00 in pain and suffering due to the petitioner experiencing eight

months of severe or significant pain following the SIRVA, followed by a longer period of

residual pain and reduced range of motion, with no surgical intervention Cooper v. Sec’y of

Health & Human Serv., No. 16-138V, 2019 WL 6288181*12 (Fed. Cl. Spec. Mstr. Nov. 7,

2018). In another SIRVA damages decision, former Chief Special Master Dorsey awarded

$130,000.00 in past pain and suffering to a petitioner who experienced moderate to severe pain

for two years after the vaccination and did not have a surgical intervention. Binette v. Sec’y of

Health & Human Servs., No. 16-731, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. July 8, 2019).

Upon consideration of petitioner’s description of the pain and suffering, including

restricted motion in her arm which she endured and the lesser amount of pain that she continues

to endure, together the record of very extensive physical therapy, a course of prednisone, a

steroid injection and the medical records denoting her condition at various times and the progress

that she has made, I have determined that an award for pain and suffering of $125,000 is

appropriate.

b. Petitioner’s Future Pain and Suffering

During the hearing, petitioner testified that she continues to suffer from the effects of her

injury. She explained she continues to experience some pain and limitation of motion, which

together, affect her activities of daily living. She stated that she continues to use over the counter

pain medication when necessary and engages in a home exercise program, however, she still has

some reduction in range of motion. She also has been able to work several days a week as a

volunteer pediatrician in India. Petitioner testified that she does continue to have residual pain in

her right shoulder, particularly in cold and damp weather. While recognizing petitioner has

achieved considerable improvement from the early post-vaccination time period, I find that she

has demonstrated that she has permanent residual injury that justifies an award of future of pain

of suffering of $1,000.00 per year for her life expectancy of 30 years based on her birthdate.

There are several reasoned SIRVA damages decisions where compensation for future

pain and suffering have been awarded. See Dhanoa v. Sec’y of Health & Human Servs., No. 15-

1011V, 2018 WL 1221922; Binette v. Sec’y of Health & Human Servs., No. 16-731, 2019 WL

1552620; and Curri v. Sec’y of Health & Human Servs., No. 17-432, 2018 WL 6273562 (Fed.

Cl. Spec. Mstr. Oct. 31, 2018). In these cases, former Chief Special Master Dorsey, who

oversaw the SPU and developed a considerable base knowledge of awards, considered the

typical signs and symptoms of the injury, the treatment of the injury (surgical intervention,

physical therapy, steroid injections), the length of treatment, and the persistence of symptoms

and limitations in range of motion.

Petitioner cited to Anthony and Schettl to support her position that she should receive the

full $250,000.00 award for pain and suffering. Pet. Post-Hearing Reply at 4. However, unlike in

the present case, the petitioner in Anthony had surgical intervention for his post-vaccination

shoulder injury. See Anthony v. Sec’y of Health & Human Servs., No. 14-680, 2016 WL

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7733084 at *1 (Fed. Cl. Spec. Mstr. Dec. 15, 2016). The Schettl case involves a complex

regional pain syndrome (“CRPS”) injury post flu vaccination, where petitioner was diagnosed

with “severe intractable neuropathic pain.” Schettl v. Sec’y of Health & Human Servs., No. 14-

422, 2019 WL 664493 at *10 (Fed. Cl. Spec. Mstr. Jan. 22, 2019).

While no case is identical on the facts, this case falls between the Dhanoa and Binette

cases but closer to Binette. Both Dhanoa and Binette are SIRVA cases. Former Chief Special

Master Dorsey found that the petitioner in Dhanoa obtained significant relief from two steroid

injections and ten physical therapy appointments, but she still experienced intermittent pain and a

slight decrease in range of motion and awarded her $10,000.00 in future pain and suffering for

one year (reduced to net present value). Dhanoa at *6-7. In Binette, former Chief Special

Master Dorsey awarded the petitioner $1,000.00 per year for her life expectancy of 57 years for

future pain and suffering, finding that petitioner’s injury was permanent and continued pain and

reduction in range of motion. Binette at *13-14. The petitioner in Binette described constant

pain and disruption to her sleep due to pain; had improvement from physical therapy but did not

regain all mobility in her shoulder; and had temporary relief from steroid injections. Binette at

*6-8.

Here, petitioner’s injury was to her dominant arm, which required her to compensate for

certain activities of daily living; she complained of sleep disruption due to pain; and despite the

nearly 400 physical therapy appointments, she still has limitations in mobility due to pain and

stiffness in her right shoulder. However, petitioner has also explained that she has made great

progress in improving her range of motion and reducing the pain from when the injury first

occurred, therefore, the record does not support the amount of future damages petitioner seeks.

Nevertheless, I find that it is likely that petitioner will have permanent residual pain and

impairment but at a level much improved from that which she experienced in the months

following the vaccination.

Petitioner bears the burden of proof with respect to each element of compensation

requested and the medical records are the most reliable evidence of petitioner’s condition.

Brewer v. Sec’y of Health & Human Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl.

Spec. Mstr. Mar. 18, 1996); Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 537-38

(2011). Based on petitioner’s medical records and testimony, the undersigned finds that an

award of $1,000.00 per year for her life expectancy of thirty (30) years5 is an appropriate award

for petitioner’s future pain and suffering. This amount will be reduced to net present value,

discussed below.

2. Future Unreimbursed Expenses

Both petitioner and respondent obtained life care planners to consider future

unreimbursed expenses. Future unreimbursed expense may be paid when they are “reasonably

necessary.” §15(a)(1)(A)(iii)(II). Future unreimbursed expenses should be awarded to a degree

“beyond that which is required to meet the basic needs of the injured person…but short of that

5

Petitioner’s life expectancy was calculated using the tables compiled by the National Center for Health Statistics.

Elizabeth Arias & Jiaquan Xu, United States Life Tables, 2017, 68 National Vital Statics Reports (2019).

https://www.cdc.gov/nchs/fastats/life-expectancy.htm (accessed on Aug. 8, 2020).

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which may be required to optimize the injured person’s quality of life. Curri at *4 (citing

Scheinfield v. Sec’y of Health & Human Servs., No. 90-212V, 1991 WL 94360, at *2 (Cl. Ct.

Spec. Mstr. May 20, 1991).

Petitioner requested future unreimbursed expenses for physical therapy and medical

evaluations; pain relief; housekeeping; and items to improve activities of daily living. Pet. Post-

Hearing Brief at 21-2. Both petitioner and respondent retained life care planners and submitted

life care plans. Pet. Ex. 30; Resp. Ex. C.

Petitioner requested $3,050.32 per year for future physical therapy once a week until

2029. Petitioner stated that the cost of a physical therapy appointment in India is $7.00 per visit

and $58.66 in the United States (with insurance offsets). Pet. Post-Hearing Brief at 27.

Petitioner testified credibly that her shoulder mobility has not returned to baseline and that her

treating physicians stressed the importance of continuing stretching and exercises regimes to

maintain mobility. Tr. 202. Additionally, the medical records demonstrate that when petitioner

engaged in physical therapy, her shoulder mobility and strength increased. Therefore, I find

petitioner’s requested award of one physical therapy session per week until 2029 reasonably

necessary. However, given the amount of time petitioner spent in India and continues to spend

in India, I will award petitioner $1,820.00 for five years to cover the costs of one physical

therapy session per week at the rate of $7.00 per session in India and $15,251.60 for five years to

cover the costs of one physical therapy session per week at the U.S. rate of $58.66 per session.

Petitioner also requested $400 per year for life for physical therapy evaluations for life

and orthopedic evaluations per year until age 65. Given that petitioner will continue with

ongoing physical therapy, one physical therapy evaluation per year until 2029 is reasonably

necessary. Petitioner shall be awarded $2000.00 for an annual physical therapy evaluation

($200.00 per visit for ten years). Further, during the course of hearing, I granted petitioner’s

request for an award covering the cost of orthopedic evaluations, finding these evaluations to be

reasonably necessary. Tr. 234-35. I granted petitioner $114.00 for the first two years to cover

the costs of an orthopedic evaluation in India (at $57.00 per evaluation in India) and $350.00 per

year for the next eight years for annual evaluations in the United States. Id.

In addition to ongoing physical therapy, petitioner requested an award to cover pain relief

expenses, including over-the-counter topical creams, over-the-counter pain patches and

acetaminophen. Pet. Post-Hearing Brief at 21. After reviewing the life care plans developed by

each party, I stated during the hearing that I will grant petitioner’s request for these items and the

amounts awarded will be to cover her lifetime expenses, not per year. As such, I found the

following reasonably necessary future expenses: $1,860.00 for topical creams; $1,170.00 for

pain patches; and $2,490.00 for acetaminophen. Tr. 235.

Additionally, petitioner identified personal support expenses, including a shoulder pulley,

Tempur-pedic pillow, specialized bra, portable shopping cart with wheels and home assistance

services. Petitioner testified that she continued to have some issues reaching behind her back

and lifting items over five pounds. Tr. 129. After reviewing the life care plans submitted by

both parties, I found the following personal support expenses to be reasonably necessary:

$825.00 for Tempur-Pedic pillows ($55.00, replaced every two years for life); $750.00 for a

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specialized adaptive grocery cart ($125.00 per cart, replaced every five years for life); and

$570.00 for a specialized device designed to aid women with limited mobility in an arm to put on

a bra (at $38.00 per device, replaced every two years). Tr. 235-45.

Petitioner requested separate amounts for housekeeping and assistive services. Pet. Ex.

30. The life care plan submitted by respondent provides $1,037.40 for assistive services,

including grocery shopping, laundry, and food delivery. Resp. Ex. C at 4. During the hearing, I

stated that respondent’s position was reasonable. Tr. 235. Additionally, I stated that I would

award this amount for petitioner’s life expectancy. Tr. 245. As such, petitioner is awarded,

$1,037.40 per year for thirty years for assistive services.

Petitioner requested that a growth rate of 4% be applied to the life care damages. Pet.

Post-Hearing Brief at 22; Tr. 241. During the hearing, respondent requested a growth rate of

3%. Tr. 242. At the time of hearing I indicated that I would order a 4% rate but after further

review and consideration of petitioner’s future needs and that most of the items awarded under

the life care plan are consumer items I will instead order a rate of 3% which is more consistent

with the rate of inflation.

In accordance with the above, below is a table that summarizes petitioner’s unreimbursed

future expenses:

Items of Compensation Duration Total Amount

Physical Therapy 10 yrs. $17,071.60

Ortho. Evaluation 10 yrs. $3,028.00

Physical Therapist Eval. 10 yrs. $2,000.00

Pain Relief Medications Lifetime $5,520.00

Tempur-Pedic Pillow Lifetime $825.00

Adaptive Grocery Cart Lifetime $750.00

Buckingham Bra Angel Lifetime $570.00

Assistive Services Lifetime $31,122.00

Total $60,886.60

3. Reduction to Net Present Value

Section 15(f)(4)(A) requires that future compensation awards to be reduced to their net

present value. Reducing future elements of compensation to net present value generally entails

awarding a lump sum that, if prudently invested, will provide petitioner with an amount

equivalent to [her] future damages. Brown v. Sec’y of Health & Human Servs., No. 00-0182,

2005 WL 2659073, at *2 (Fed. Cl. Spec. Mstr. Sept. 21, 2005); see also Petronelli v. Sec’y of

Health & Human Servs., No 12-285, 2016 WL 3252082 (Fed. Cl. Spec. Mstr. May 12, 2016).

The Supreme Court noted that in almost any case, calculating the loss of future wages

could become the subject of reasonable debate. See Monessen Southwestern Railway Co. v.

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Morgan, 486 U.S. 330, 351 (1988). The Court counseled against allowing the average personal

injury trial to become a graduate seminar on economic forecasting. Id. at 341. After reviewing

the advantages and disadvantages of the various calculation methods, the Court in Jones &

Laughlin Steel Corp found the “economic evidence distinctly inconclusive” and concluded that:

“we do not believe a trial court adopting such an approach in a suit . . . should be reversed if it

adopts a rate between one and three percent and explains its choice.” Jones & Laughlin Steel,

462 U.S. at 548-49.

There are numerous Vaccine cases where special masters have analyzed the appropriate

net discount rate to apply to future damages. See Childers v. Sec’y of Health & Human Servs,

No. 96-194V, 1999 WL 218893 (Fed. Cl. Spec. Mstr. Mar. 26, 1999); Petronelli v. Sec’y of

Health & Human Servs., 2106 WL 3252082 (Fed. Cl. Spec. Mstr. May 12, 2016); Brown, 2005

WL 2659073; Curri, 2018 WL 6273562; Neiman v. Sec’y of Health & Human Servs., No 15-

631V, 2016 WL 7741742 at *1 (Fed. Cl. Spec. Mstr. Oct 31, 2016); Schoover v. Sec’y of Health

& Human Servs., No. 16-1324 (Fed. Cl. Spec. Mstr. filed Aug. 5, 2020).

I considered that the challenge for petitioner is to be able to take a lump sum of money

awarded to her at this time and purchase a portfolio of U.S. Treasury bonds that would provide

her with a return sufficient to offset a reduction to present value. Consulting the official site of

the U.S. Department of Treasury on August 7, 2020, I found that the rate of interest on a six-

month treasury bond is 0.11%. The rate for a one-year bond is 0.14%, for a 2 year note 0.17%,

for a 5-year bond it is 0.21 %, for a 10-year bond 0.55% % and for a 30 year note 1.20 %.6

Obviously, the ability to obtain even a 1% return at the present time in any of the shorter

maturities is non-existent. Given the low interest rates of the present day but that it is likely that

rates will be at least somewhat higher in the out years of the thirty-year future damage award in

this case, I am adopting a multipronged approach, as I did in Petronelli and as adopted by other

special masters in this program. See Curri * 5 (citing Neiman, 2016 WL 7741742), and

Schoonover at n.11. Consistent with the other rulings within the Vaccine program and well

within the 1% to 3% standard suggested by the Supreme Court in Jones v. Laughlin, I am

ordering that the reduction to present value be calculated at a rate of 1% to the first 15-years of

petitioner’s future damages and a net-discount rate of 2% in the remaining years.

4. Past Unreimbursed Expenses

A Vaccine program claimant may recover past unreimbursed vaccine-related expenses

which are found to be “reasonably necessary.” §15(a)(1)(B). This category may include inter

alia, costs related to medical care, therapy, special equipment and travel. Id. Petitioners bear the

burden of showing that their requested costs are reasonably necessary. Brewer, 1996 WL

147722, at * 13.

Petitioner requests $1,772.62 for past unreimbursed expenses. Pet. Ex. 36. Petitioner is

requesting reimbursement for physical therapy in the United States and in India; a specialized

adaptive grocery cart; specialized therapy equipment and medical visits. Id. Petitioner provided

receipts for the items requested as well. As such, I found that these costs were reasonably

6

Daily Treasury Yield Curves, https://www.treasury.gov/resource-center/data-chart-center/interest-

rates/pages/textview.aspx?data=yield

15

necessary and awarded petitioner $1,772.62 in past unreimbursed vaccine-related expenses. Tr.

242.

VII. SUMMARY

After a review of the record as a whole, I find that petitioner should be awarded

$125,000.00 in compensation for actual pain and suffering; $1,000.00 per year for her life

expectancy for future pain and suffering; $60,886.60 in future unreimbursed future expenses; and

$1,772.62 in past unreimbursed expenses. All future damages are reduced to present net value in

accordance with the above.

The parties are to file a joint status report within thirty (30) day converting the

undersigned’s award of future pain and suffering and future unreimbursed expenses to the net

value in accordance with the above. A damages decision will be issued following the status

report.

IT IS SO ORDERED

s/Thomas L. Gowen

Thomas L. Gowen

Special Master.

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