NORA BETH DORSEY, Chief Special Master.
On January 17, 2017, Deborah Kent ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
For the reasons described below, the undersigned finds that petitioner is entitled to an award of damages in the amount of
By early June 2017, petitioner finished filing her medical records in this case. See Exhibits 12-13 (ECF No. 13). On July 7, 2017, respondent filed a status report indicating that he was interested in pursuing a litigative risk settlement. (ECF No. 14). Over the subsequent four months, the parties engaged in settlement discussions. See Status Reports, filed Aug. 21 and Oct. 6, 2017 (ECF Nos. 16, 19). On November 9, 2017, petitioner filed a status report indicating the parties had reached an impasse in their settlement discussions. (ECF No. 21). Respondent filed his Rule 4 report on December 27, 2017. (ECF 23).
A fact hearing regarding the onset of petitioner's pain was held in Grand Rapids, Michigan on June 26, 2018. After allowing the parties the opportunity to supplement the record, the undersigned issued a ruling, finding petitioner entitled to compensation. Ruling on Entitlement, filed Feb. 12, 2019 (ECF No. 33). The parties were instructed to engage in informal damages discussions to determine if they could agree upon an appropriate amount of compensation in this case. Damages Order, issued Feb. 14, 2019 (ECF No. 34). On April 2, 2019, petitioner's counsel emailed the OSM staff attorney managing this SPU case, informing her that the parties had reached an impasse in their damages discussions and requesting that a schedule for briefing be set.
By early June 2019, both parties had filed their damages briefs. See Respondent's Brief on Damages ("Res. Brief"), filed May 29, 2019 (ECF No. 38); Petitioner's Brief in Support of Damages ("Pet. Brief"), filed June 3, 2019 (ECF No. 39). Neither filed a response to the opposing party's brief.
During most of 2014, petitioner received her primary medical care from the Hart Family Medicine Center ("the Hart Center"), part of the Mercy Health Physician Partners. Exhibit 2 at 53-88. From late 2014 through mid-July 2015, petitioner was seen on several occasions at Pentwater Family Medicine (Exhibit 4 at 7-56, 64-71). The medical records from these providers indicate that prior to vaccination, petitioner suffered occasional vertigo, routine illnesses, and common conditions. There is no mention of any shoulder issues in these records.
On October 2, 2015, petitioner transferred back to the Hart Center (referred to hereinafter as petitioner's primary care provider ("PCP")). Exhibit 2 at 92. At this visit for a comprehensive physical, she received the vaccination alleged as causal. Id. at 90-95. The vaccination was administered intramuscularly in petitioner's left upper arm. Exhibit 1; Exhibit 2 at 95.
A few days after vaccination, on October 5, 2015, petitioner followed up by telephone regarding the insurance coverage for the calcium supplement she was taking. Exhibit 2 at 94 (indicating follow-up would occur), 96 (telephone call from petitioner indicating the supplement would be covered). On October 6, 2015, she visited the lab to have blood drawn for testing. Id. at 97-98. Petitioner faxed her completed Health Risk Assessment on October 12, 2015. Id. at 99-103.
On December 1, 2015, petitioner called her PCP regarding a referral to get her hearing checked. Exhibit 2 at 104. She was seen on December 7, 2015, and referred to ear, nose, and throat. Id. at 105-07. There is no mention of shoulder pain at this visit, and under the musculoskeletal portion of the physical examination section, it is noted only that petitioner's gait was normal.
Approximately three months after vaccination, on January 4, 2016, petitioner was seen by her PCP, complaining of left upper arm pain which began when she received the influenza vaccination. Exhibit 12 at 1. She indicated her "arm pain began started when she got the shot, . . . [and] [s]he tried to just give it time to get better." Id. Describing her pain as achy, like a toothache, she questioned whether the nurse had hit a bone during administration or the needle could be stuck in her arm. Id. Upon examination, Jennifer Tate, PA,
On January 11, 2016, petitioner called her PCP for the results of her x-rays. Exhibit 2 at 110. After being informed they were normal, petitioner was referred to orthopedics and an MRI was ordered.
During this time, on January 20, 2016, petitioner visited her PCP for a rash which began approximately two months earlier. Exhibit 2 at 113. Petitioner attributed the rash to nerves, and a topical cream was prescribed. Id. at 114. In the record from this visit, it was noted that petitioner was in no acute distress. Id. at 113. Under the musculoskeletal portion of the physical examination, it was reported only that petitioner's gait was normal. Id. at 114.
Petitioner was seen by Randolph Grierson, DO,
On March 8, 2016, petitioner began formal PT at Lakeside Comprehensive Rehabilitation ("Lakeshore Rehab"). Exhibit 8 at 1-4 (initial evaluation). During examination, "[s]evere pain [was] noted with all shoulder ROM." Id. at 2. Petitioner's left deltoid pain was described as "consistent with supraspinatus pain referral pattern." Id. Petitioner reported difficulty when lifting, sleeping, and performing overhead and recreational activities. Id. at 3. Petitioner was assessed as "motivated with good potential to reach goals," but it was noted that she would be moving to another area of Michigan in three weeks. Id.
Petitioner attended seven PT sessions at Lakeshore Rehab from March 9 through 28. Exhibit 8 at 5-18 (in reverse order). During this time, her pain improved from a level of three out of ten prior to PT and ten out of ten after PT to a prior level of one out of ten and post-level of six out of ten. Compare id. at 15 with id. at 5. She reported that her stretching was becoming easier (id. at 11) and that she was able to dress with greater ease (id. at 7). At her last session, on March 28, 2016, it was reported that petitioner's PT would be suspended while she was out of town. Id. at 5.
During February and March 2016, petitioner was seen at her PCP on three occasions, complaining of dry eyes, a rash, vaginitis, cough, and sore throat. See Exhibit 2 at 22-33. In the records from these visits under the reviewed problems section, it is noted that petitioner suffered from a "[d]isorder of bone and cartilage" with onset listed as October 2, 2015. Id. at 22, 25, 28. Presumably, this entry is referencing petitioner left shoulder condition. There is no further mention of petitioner's left shoulder pain, and the section titled review of systems (ROS) does not include a subsection for the musculoskeletal system. Id. at 23-24, 27, 30-31. There is no complaint of left shoulder pain in the medical records from any of these visits.
After petitioner moved closer to Grand Rapids, she resumed PT at a new facility, Northern Physical Therapy Services ("Northern PT"). Exhibit 6. Her initial evaluation indicated she was referred by Jennifer Tate, PA. Id. at 53. At this first visit, on April 14, 2016, petitioner described her left shoulder pain as a "sharp pain, after flu shot, [which] never went away," rating its severity as between four and seven. Id. She shared the results of her x-rays and MRI and indicated "Dr. Greer[
From April 14 through June 9, 2016, petitioner attended 16 PT sessions at Northern PT. At her last session on June 9, 2016, she rated her level of pain as three out of ten and described her pain as intermittent, occurring primarily when she reached behind her back or out to the side. Exhibit 6 at 3. At her June 7, 2016 session, petitioner reported she would be seeing an orthopedist specialist, Dr. Howard, the following week. Id. at 8. Petitioner was discharged from PT on July 19, 2016. Id. at 1. Noting that petitioner's last visit was on June 9, 2016, the record indicates staff spoke to petitioner "who stated she no longer needs PT." Id. The record further indicates petitioner met approximately one-third of her goals (four out of twelve). Id. at 1-2.
On May 12, 2016, petitioner visited Grand Valley Health Plan for a health assessment. Exhibit 7 at 16-20. In this record, it is noted that petitioner experienced a left rotator cuff tear in October 2015, for which she is undergoing PT. Id. at 16. It appears that petitioner had switched to this clinic for her primary care, as she was also seen in June 2016 for a headache (id. at 12-15), in July 2016 for a spider bite (id. at 7-11), and in September 2016 for a skin lesion (id. at 4-6).
On June 14, 2016, petitioner was seen at a new PT facility, Spectrum Health Rehab. Exhibit 9 at 11-12, 16-17 (questionnaire completed by petitioner); 25-27 (record from visit). It was noted that petitioner's pain, rated at a level of three to seven on a scale of ten, limited her activities such as sleeping, lifting, grooming, dressing, and performing yardwork. Id. She was observed to have "reduced shoulder ROM, strength and posture deficits as might be expected with adhesive capsulitis." Id. at 26. Petitioner reported that she previously had attended PT and had made good progress. Id. at 25-26. She expressed a desire to be able to lift her grandson and to use her arm normally. Id. at 26. It was noted that she should benefit from additional PT, and twice weekly sessions for four to six weeks were recommended. Id. at 26-27.
It appears petitioner's first visit to Dr. Howard, the orthopedist mentioned during an earlier PT session, occurred on June 22, 2016. Exhibit 10 at 2-29. At that visit, petitioner reported that her shoulder pain occurred suddenly and was related to her influenza vaccination. Id. at 5. She described her pain as located in the lateral upper arm, mild and stabbing, and "aggravated by flexing or extending the shoulder, lifting, lying on the affected side, and overhead activity." Id. Petitioner indicated that she had undergone an MRI, been evaluated by an orthopedic surgeon and her PCP, and participated in 26 sessions of PT. Id. at 5-6. An evaluation of petitioner's shoulder revealed tenderness, limited ROM, and normal strength. Id. at 7. Petitioner shared her belief that "her shoulder [wa]s gradually improving over the last six months because of the consistent physical therapy she had been receiving" and expressed her lack of interest in a cortisone injection or surgery. Id. at 8. Dr. Howard cautioned that it often takes a long time to recover from adhesive capsulitis. He ordered additional PT. Id.
Between June 14 and August 4, 2016, petitioner attended 9 PT sessions at Spectrum Health Rehab. See Exhibit 9 at 56. On August 4, 2016, she indicated her level of pain had decreased, rating the severity between zero and seven. She added that she was able to do more, but continued to have difficulty reaching overhead, especially when lifting heavier objects, and behind her back. Id. Petitioner was assessed as showing improvement in her ROM, strength, and ability to perform certain activities. Id. at 57. It was noted that petitioner had improved her ROM by between 10 to 15 degrees (id. at 58), but some limitation was still observed (id. at 57, ranking ROM at four out of five). Petitioner had partially met her goal of being able to lift her grandson to eye level without pain. Id. at 58.
During the fact hearing held in Grand Rapids, Michigan on June 26, 2018, the undersigned heard testimony from petitioner and her husband. Petitioner testified first and described the details surrounding the vaccination alleged as causal, the subsequent treatment she received, and severity and effects of her injury. Petitioner's husband provided testimony regarding his interactions with his wife following vaccination and limitations he observed.
Petitioner testified that she received the vaccination alleged as causal when visiting the Hart Clinic for a physical on October 2, 2015. Transcript ("Tr.") at 5-7. Petitioner recalled many of the details surrounding the vaccination, indicating that it occurred after the doctor left the room and was administered in her left arm while she was sitting with her top off and the nurse was standing. Tr. at 6-7. Petitioner stated that, due to a fear of needles, she tried not to look while the vaccination was being administered but felt immediate pain upon injection, worse than what she had felt with previous vaccinations. Tr. at 7-8. She asked the nurse if she broke the needle off in her arm. Tr. at 7. When petitioner's counsel asked petitioner if she had suffered from any prior shoulder injuries, petitioner replied that she had not. Tr. at 9-10.
Describing the events following vaccination, petitioner indicated she returned home and cried to her husband. Tr. at 10. In response, he gave her an ice pack and told her that the nurse may have bruised her bone. In addition to the ice pack, petitioner took Tylenol and tried heat to see if that would alleviate her pain. She stated that she slept in the recliner that night. When asked to describe the injection site, petitioner testified that she did not notice any redness or swelling but did have tenderness which felt better when she pressed on it slightly. Tr. at 10. She added that "It hurt, but then again, it kind of felt better if [she] pressed on it." Tr. at 10. She continued to apply ice and heat throughout the next day, only going to the store with her husband when he cautioned that she did not want her shoulder to become stiff. Tr. at 10-11.
Petitioner testified that, when she returned to the laboratory at her doctor's office to have blood drawn, she informed the technician of her left arm pain and was told that a man who was seen before her had a similar complaint. Tr. at 11-12. After examining her arm, the technician assured her that some people take longer to heal after a vaccination and that she should continue to apply ice and heat and to take Tylenol. Petitioner testified that she complained of her pain again when she called the clinic a few days later to obtain her cholesterol results. Tr. at 12. After being reassured that some people take longer to heal and being asked if she was experiencing a fever, petitioner declined to make an appointment. Tr. at 12-13.
Petitioner described the pain she experienced as a deep, burning pain which was exacerbated by movement. Tr. at 13. She indicated that eventually, her arm became frozen to her side, as if hanging in a sling. Tr. at 14. She testified that she was unable to shampoo her hair, apply deodorant, or sleep on her left, injured side. Tr. at 131-15. Because her vertigo prevented her from sleeping on her right side, petitioner reported that she "had to sleep sitting up." Tr. at 13. She recalled her husband having to do everything for her during this time, including packing for a trip to their daughter's house at Thanksgiving. Tr. at 15.
Petitioner then discussed her visit to her PCP in January 2016 and an orthopedist she saw in February. Tr. at 17. She indicated her PCP discussed different treatment options, including a cortisone injection, ordered x-rays and MRI, and referred her to an orthopedic surgeon after the MRI revealed some tears in her tendon. Tr. at 17-18. When later asked by respondent's counsel, why she declined a cortisone shot, petitioner expressed her dislike for doctors, needles, and surgery. Tr. at 28. Although she could not recall the name of the orthopedist, she remembered that he prescribed medication, including muscle relaxers which made her sick, gave her exercises to perform, and arranged formal PT. Tr. at 18.
Petitioner described her level of pain as ten out of ten when she began PT on March 8, 2016. Tr. at 20. She reported that her pain increased when the physical therapist began examining her, asking her to move her arm. Tr. at 20-21. She confirmed that the exercises she performed during PT and at home helped, but that "it took a lot of time" to obtain the mobility she sought. Tr. at 21-22.
Petitioner testified further regarding the activities she was unable to do during this time, such as lifting her iron skillet, knitting, or holding her grandson, and ways she had adapted to her limitations, such as using a stool when getting items from the cabinet. Tr. at 25-28. When questioned by petitioner's counsel regarding information provided in the medical record from a June 23, 2016 PT session, petitioner confirmed that she was unable to lift her grandson from the floor or his bed at that time. Tr. at 24-25.
Regarding her current condition, petitioner reported that her level of pain was one and one-half to two on a scale of ten. Tr. at 26. She described some limitations in her movements, adding that her pain was "not enough for [her] to want surgery." Tr. at 26. When respondent's counsel asked about specific activities: lifting her iron skillet, washing her hair, and putting on her bra, petitioner stated she could do all activities with an adjustment needed when lifting the iron skillet. Tr. at 40.
During his testimony, petitioner's husband confirmed that petitioner had complained of her shoulder pain shortly after vaccination and that he was required to help her with many of her normal activities. Tr. at 57-63. He testified that petitioner experienced pain the evening after vaccination and was unable to sleep. Tr. at 58. He did not recall the events of the next day but verified that he recommended petitioner seek medical care. Tr. at 60. When asked about petitioner's current condition, he indicated she was doing well. He stated that he still helps petitioner put away dishes that are kept in a higher location but attributed that in part to her short stature. Tr. at 63. He testified that he knew of no shoulder injury experienced by petitioner prior to the vaccination alleged as causal. Tr. at 64.
Petitioner seeks damages in the amount of $90,000.00 for her actual pain and suffering and $2,564.78 to satisfy her Medicaid lien. Pet. Brief at 1 (ECF No. 39). In support of the amount sought for her past pain and suffering, petitioner stresses the severity of her tendinosis as shown on the January 14, 2016 MRI, the pain she suffered and the limitations in both active and passive movement which she experienced. Pet. Brief at 2-3. She maintains that she experienced "a severe left shoulder injury which greatly impacted her quality of life as well as her activities of daily living for a duration of at least ten (10) months." Pet. Brief at 5.
Referencing her testimony at the June 26, 2018 fact hearing, petitioner asserts that at least 18 months after vaccination, she continued to suffer pain at a level of one to two out of ten. Pet. Brief at 5; see Tr. at 26. Petitioner maintains that her injury limited her hobbies such as cooking and knitting and impacted her relationship with her grandson. Pet. Brief at 5.
Petitioner compares her injury to that suffered by the petitioners in Kim, Desrosier, and Bruegging.
Respondent argues that petitioner should be awarded $57,500.00 as compensation for her actual pain and suffering. Res. Brief at 1 (ECF No. 38). He indicates he has no objection to the $2,564.78 petitioner seeks to satisfy her Medicaid lien. Res. Brief at 13.
To justify this lower amount, respondent stresses the approximately three-month gap between vaccination and treatment shown in this case and the occasions when petitioner received treatment for other conditions and failed to mention her left shoulder pain. Res. Brief at 3. Adding that petitioner did not receive a cortisone injection or surgery, respondent argues these facts indicate petitioner's SIRVA was not severe. Res. Brief at 12. Moreover, respondent notes that petitioner has not needed treatment since June 2016. Res. Brief at 12.
Respondent compares petitioner's SIRVA to those suffered by petitioners in Marino, Kim, and Knauss.
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." § 15(a)(4). Additionally, 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." § 15(a)(1)(B). 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 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) ("Awards 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)).
The undersigned may also look to prior pain and suffering awards to aid in her 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, the undersigned may also rely on her own experience adjudicating similar claims.
In Graves, Judge Merrow rejected the 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 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." 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.
SIRVA cases have an extensive history of informal resolution within the SPU. As of July 1, 2019, 1,187 SIRVA cases have informally resolved
Among the SPU SIRVA cases resolved via government proffer, awards have typically ranged from $75,325.00 to $123,116.00.
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged from $50,000.00 to $95,000.00.
In addition to the extensive history of informal resolution, the undersigned has also issued 19 reasoned decisions as of the end of May of 2019 addressing the appropriate amount of compensation in prior SIRVA cases within the SPU.
In eleven prior SPU cases, the undersigned has awarded compensation for pain and suffering limited to compensation for actual or past pain and suffering that has fallen below the amount of the median proffer discussed above. These awards ranged from $60,000.00 to $91,163.89.
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. Approximately one-half were 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 Weber and Garrett attended PT for five and four months respectively, but most of the PT in Weber was focused on conditions unrelated to his SIRVA. Several of these cases (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.
Additionally, in five prior SPU cases, the undersigned has awarded compensation limited to past pain and suffering falling above the median proffered SIRVA award. These awards have ranged from $110,000.00 to $160,000.00.
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. Time to first treatment ranged from five days to 43 days. Duration of physical therapy ranged from one to 24 months and three out of the five had cortisone injections.
In three prior SPU SIRVA cases, the undersigned has awarded compensation for both past and future pain and suffering.
In this case, awareness of the injury is not in dispute. The record reflects that at all relevant times petitioner was a competent adult with no impairments that would impact her awareness of her injury. Therefore, the undersigned's analysis will focus principally on the severity and duration of petitioner's injury.
The medical records in this case establish that petitioner suffered a SIRVA injury with significant levels of pain, prominent tendinosis, and profoundly limited ROM for approximately six months after vaccination. Ten months after vaccination, petitioner continued to experience reduced levels of pain and limitations in ROM but no longer required medical care.
When petitioner first sought medical care in early January 2016, she described her pain as an achy toothache and was observed to exhibit limited ROM. Exhibit 12 at 1. She indicated she had experienced pain upon vaccination but had given the issue time to resolve on its own. Id. At the fact hearing, petitioner testified that she mentioned her shoulder pain during a visit to the laboratory a few days later and, thereafter, during a telephone conversation with an individual who petitioner assumed was Dana, a nurse, at her PCP provider's office. Tr. at 11. Petitioner maintains, during both conversations, she was told that it takes time for pain from a vaccination to resolve. Tr. at 11-12. Regarding the telephone conversation, she added that she was told she did not require an appointment and that it sometimes takes a few weeks for any vaccination related pain to resolve. Tr. at 12-13. By the time petitioner saw an orthopedist in late February 2016, she rated the severity of her pain as eight out of ten. Exhibit 11 at 8. The orthopedist, Dr. Grierson, described petitioner's ROM as profoundly limited and assessed her as having adhesive capsulitis. Id. at 10-11.
Given the evidence establishing petitioner had a sincere belief that the vaccination needle may have broken off in her shoulder, petitioner's claim that she declined cortisone injections due to her fear of needles is credible. Tr. at 18. On at least one occasions, the medical records reflect petitioner's aversion to this procedure. Exhibit 10 at 8. Similarly, the undersigned credits petitioner's assertion that she was unable to take the muscle relaxers prescribed to her because they made her feel nauseated. Tr. at 28.
Relying on PT alone, petitioner obtained slow relief from the sessions she attended. When seen by Dr. Grierson on February 29, 2016, almost five months after vaccination, petitioner reported aching pain at a level of eight out of ten. Exhibit 11 at 8. Noting that petitioner exhibited a profoundly limited ROM for both passive and active movement, Dr. Grierson determined petitioner's pain came from adhesive capsulitis. Id. At petitioner's first PT session, she reported consistent pain which was severe with all movement. Exhibit 8 at 2. By her seventh and last PT session at that facility in late March 2016, approximately six months after vaccination, petitioner reported reduced levels of pain: one out of ten prior to PT and six out of ten afterwards. Id. at 5. She also indicated that she experienced less difficulty when stretching and greater ease when dressing. Id.
After moving closer to Grand Rapids, Michigan, petitioner attended a total of 24 PT sessions at two different facilities from April through early August 2016. During this time, she described her condition as gradually improving. Exhibit 10 at 8 (record from June 22, 2016 visit to a new orthopedist, Dr. Howard). At her last PT session on August 4, 2016, petitioner rated her pain as between zero and seven. Exhibit 9 at 56. It was noted that petitioner's ROM had improved 10 to 15 degrees, but some limitation was observed. Id. at 57-58 (ROM was described as four out of five). Petitioner reported that she was able to do more but still experienced some difficulty reaching overhead, putting her arm behind her back, and moving heavy objects. Id. at 57.
Petitioner did not require further medical treatment. At the June 26, 2018 fact hearing, she testified that her current level of pain was one and one-half to two on a scale of ten, that she had only some limitations in her ROM, and that she could performed most activities without adjustment. Tr. at 26, 40.
There is preponderant evidence to establish petitioner suffered severe symptoms of her SIRVA, including significant pain, prominent tendinosis, and a substantially limited ROM, for approximately six months after vaccination. By the end of this period, she showed substantial improvement. After further PT and a visit to another orthopedist, petitioner's pain was reported to be zero to seven on a scale of ten. Approximately ten months after vaccination, petitioner attended her last PT session. At that visit, she exhibited pain at a level of zero to seven on a scale of ten and exhibited some residual limitations in her ROM.
The facts in petitioner's case are most similar to those found in Kim, but the duration of her initial, more severe pain; total length of time for her SIRVA; extent of her limited ROM; and severity of her tendinosis, as shown on petitioner's MRI, were all greater. The Kim petitioner did seek medical care sooner, 42 days after vaccination as opposed to almost three months in this case. However, the undersigned finds petitioner's testimony that she complained of her shoulder pain twice after vaccination and was reassured her recovery may take weeks to be credible. The undersigned finds that the petitioner in this case should be awarded more for her pain and suffering than the amount awarded in Kim, $75,000.00.
A review of the facts in other cases in which petitioners received $75,000.00 for pain and suffering supports this assessment.
Petitioner's pain and suffering appears to be less than that suffered by the petitioners in cases in which the undersigned awarded $85,000.00. In all but Desrosier,
During the fact hearing on June 26, 2018, the petitioner in this case gave credible testimony regarding her shoulder condition from vaccination to the present. She described an initial period of severe pain and limited ROM which gradually improved following 32 PT sessions at three different facilities.
Looking at the totality of circumstances, including the severity of petitioner initial pain and suffering and limited ROM, the undersigned finds $80,000.00 to be an appropriate amount for petitioner's past pain and suffering.
For all of the reasons discussed above and based on consideration of the record as a whole,
Based on the record as a whole and arguments of the parties,
The clerk of the court is directed to enter judgment in accordance with this decision.
