NORA BETH DORSEY, Chief Special Master.
On December 28, 2017, Lucinda Kelley ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.
Ms. Kelley filed her petition for compensation on December 28, 2017. (ECF No. 1). On February 15, 2019, respondent filed his report pursuant to Vaccine Rule 4(c) conceding that petitioner's injury constituted a SIRVA Table injury and recommending that appropriate damages be awarded. (ECF No. 23). The undersigned issued a ruling on entitlement on February 15, 2019 finding petitioner entitled to compensation for SIRVA. (ECF No. 24).
A status conference was held on May 10, 2019. The parties stated that they had reached an impasse regarding damages and agreed to submit to a decision by the undersigned awarding damages based on the written record. The undersigned ordered the parties to file a joint status report indicating the stipulated amount of petitioner's unreimbursable expenses. The undersigned further ordered each party to file simultaneous briefs in support of their respective positions on the appropriate amount of compensation. (ECF No. 30).
On June 6, 2019, the parties stipulated that petitioner's out-of-pocket expenses totaled $4,289.05. (ECF No. 32). On June 10, 2019 the parties each filed briefs addressing damages for pain and suffering. (ECF Nos. 34, 37). Accordingly, this case is now ripe for an adjudication of petitioner's damages.
Ms. Kelley received a flu vaccine on November 7, 2016, in her left deltoid. Petitioner's Exhibit ("Ex.") 2. Petitioner's prior medical history does not include any mention of shoulder problems and is not otherwise relevant to her claim.
In her declaration, Ms. Kelley stated that she noticed that the vaccine was administered higher up on her shoulder than previous vaccines. Ex. 1 at 1. Ms. Kelley stated that she experienced some initial pain after the vaccine was administered that significantly worsened after a few days. Id. She stated she was brought to tears when lifting her left arm upwards and any sudden movement increased the pain. Id. Ms. Kelley described that she could not get dressed or undressed and was unable to pull the covers on her bed without pain. Id.
Ms. Kelley first sought treatment for her shoulder injury on November 30, 2016, with Brandon Mines, M.D., an orthopedic specialist. She reported that her shoulder pain began after receiving a flu shot three weeks prior. Ex. 3 at 1. She reported the injection "seemed high" and was more painful than usual. Id. Ms. Kelly described her pain as a "sharp, pulling" type pain which was increasing and any arm movement exacerbated the pain. Id. Ms. Kelley rated it as 8 out of 10 on a scale from 1 to 10. Id.
On examination, Dr. Mines found Ms. Kelley to have limitations in the range of motion ("ROM") of her left shoulder with mild to moderate pain. Ex. 3 at 3. The results from an x-ray of the left shoulder were normal and Dr. Mines diagnosed petitioner with tendonitis of left rotator cuff. Id. at 4. He administered a cortisone shot to Ms. Kelley's left shoulder and prescribed physical therapy and diclofenac for pain. Id. Dr. Mines encouraged Ms. Kelley to ice her shoulder and to take over-the-counter non-steroidal anti-inflammatory drugs for pain and to reduce inflammation. Id.
Ms. Kelley attended her first physical therapy ("PT") visit on December 6, 2016. Ex. 4 at 10. She reported that her pain had improved after she received the cortisone injection on November 30, 2016, but stated that her pain was beginning to return. Ms. Kelley rated her pain at 9/10 before she received the cortisone injection and a 2/10 after the injection, with most of her pain occurring when she was reaching. Id. Petitioner attended seven PT sessions in total. By her last session, Ms. Kelley reported only minimal discomfort at night. Id. at 10-18. She was discharged from PT on January 27, 2017 with full ROM of her left shoulder and minimal symptoms. Id. at 18.
Ms. Kelley returned to Dr. Mines on January 11, 2017 reporting that she was still experiencing pain at night. Dr. Mines changed Ms. Kelley's medication to meloxicam because the diclofenac was not helping. Ex. 3 at 5-7.
On February 24, 2017, Ms. Kelley underwent an MRI of her left shoulder. Ex. 3 at 8. The MRI showed a small focal near full-thickness tear of the infraspinatus with a small interstitial delaminating tear extension along the myotendinous junction. The MRI also showed supraspinatus tendinosis without high-grade partial or full thickness tears, and a Type III acromion with a small subacromial spur. There was some small subacromial/subdeltoid bursitis, but a preserved rotator cuff muscle bulk. Id. at 8-9.
On March 21, 2017, Ms. Kelley sought further treatment from Spero Karas, M.D., an orthopedic surgeon at the Sports Medicine Clinic. Ex. 3 at 10. Dr. Karas noted that Ms. Kelley reported a five-month history of left lateral shoulder pain that was worse with overhead activities and at night. Id. According to petitioner, the cortisone injection and PT both significantly improved her pain for one month, but the pain eventually returned to its previous level. Id. Dr. Karas noted that Ms. Kelley occasionally took ibuprofen for her pain which offered some relief. Id. On examination, Dr. Karas noted moderate tenderness to palpation of Ms. Kelley's left shoulder and a limited ROM with mild to moderate pain reported. Id. at 12. Dr. Karas also noted that petitioner's left shoulder pain persisted and was not responding to conservative measures. Id. at 13. He diagnosed her with AC arthritis, Type III acromion, rotator cuff tendinosis vs. partial tearing, and biceps tendonitis. Dr. Karas discussed operative options with Ms. Kelley including possible rotator cuff debridement and/or repair. Id. Ms. Kelley was to call back if and when she elected to pursue surgery. Id.
On May 24, 2017, Ms. Kelley underwent arthroscopic shoulder surgery, including a subacromial decompression, distal clavicle excision, and biceps tenotomy. Ex. 5 at 1-4. It was noted that Ms. Kelly had a biceps tendon tear that was released during the surgery to prevent further pain and mechanical symptoms. Id. at 5-6. Also discovered during the surgery was a large subacromial spur and hypertrophic bursa that was removed to decrease symptoms of impingement. The AC joint was also removed to alleviate pain and for degeneration of the joint. Ms. Kelley was discharged with Percocet for pain and promethazine to prevent nausea and vomiting. Id. at 24.
Petitioner returned to Dr. Karas for a post-operative visit on May 26, 2017. Ex. 3 at 29. Ms. Kelley reported that she was still experiencing moderate discomfort with certain movements even though she was taking the pain medication as prescribed. Ms. Kelley rated her pain at 3/10. Id. Dr. Karas prescribed physical therapy and a home exercise program. Id. at 31.
Ms. Kelley began her post-operative PT on May 31, 2017. Ex. 4 at 19. At this initial session, she complained of a feeling of tightness in her left shoulder with her current pain level rated at 1/10 and at 3/10 at its worst. Id. Ms. Kelley stated that her goal was to be able to carry her new baby granddaughter in four weeks. Id. The physical therapist noted limitations in Ms. Kelley's ROM, strength, and overall functional capacity of the left shoulder. Id. Ms. Kelley continued with PT until June 6, 2018, at which time she rated her pain at 0/10. Id. at 23.
On June 13, 2017, Ms. Kelley returned to Dr. Karas's office for another post-operative evaluation where she rated her current pain at 1/10. Ex. 3 at 44. It was recommended that Ms. Kelley continue with formal PT for eight more weeks. Id. at 46.
Ms. Kelley continued with her PT sessions, occasionally reporting pain at 1/10 at its worst. She continued to demonstrate limitations of the ROM, strength, and overall functional capacity of her left shoulder. Ex. 4 at 29-40. During a July 10, 2017 PT session, Ms. Kelley reported left upper extremity discomfort after walking her dogs. Id. at 41. At her July 26, 2017 session, Ms. Kelley reported only minimal discomfort in her posterior left shoulder and felt this her only remaining impairment. Id. at 47. However, on August 3, 2017, Ms. Kelley again began reporting pain to the front of her left shoulder when reaching across her chest. Id. at 51.
On August 8, 2017, approximately ten weeks after Ms. Kelley's shoulder surgery, Dr. Karas evaluated petitioner's progress. Dr. Karas noted that Ms. Kelley was doing well with physical therapy and her pain was improving. Dr. Karas prescribed Ms. Kelley additional PT for Ms. Kelley to continue strengthening her rotator cuff muscles and she was to return in two months for a routine follow-up. Ex. 3 at 59.
Ms. Kelley continued attending PT, occasionally reporting moderate pain to the front of her left shoulder when reaching across her chest. Ex. 4 at 53. The PT records indicated that she met her goal of reporting negative pain with carrying a baby as of August 10, 2017. Id. at 55. However, on August 29, 2017, Ms. Kelley was still reporting minimal left anterior shoulder pain which she attributed to holding her granddaughter for prolonged periods over the weekend. Id. at 60.
During her September 5, 2017 PT session, Ms. Kelley reported continued discomfort with reaching across her body, which waxed and waned during the previous month. Id. at 64-71. By October 2, 2017, she described occasional popping in her left shoulder but stated her pain "isn't too bad." Id. at 72. The physical therapist wrote in the assessment that Ms. Kelley had made great progress with both the ROM and strength of her left shoulder. Id. at 73. She also noted that Ms. Kelley was still moderately limited with her strength which appeared to be contributing to the "popping" sensation in her left shoulder. Id. Ms. Kelley reported pain with higher level activities and the therapist recommended that Ms. Kelley continue with skilled PT to focus on strengthening her shoulder and decreasing her pain. Id.
Ms. Kelley presented to the Sports Medicine Clinic on October 3, 2017 and was evaluated by Robert Bowers, D.O. Ex. 3 at 71. Dr. Bowers noted that Ms. Kelley was still experiencing some occasional discomfort over the anterior portion of her left shoulder and reported that her shoulder continued to feel somewhat weak, but her ROM had improved since her last visit and had significantly improved since surgery. Ex. 3 at 71. Dr. Bowers recommended that Ms. Kelley continue with PT to work on strengthening her left shoulder and instructed her to follow-up as needed. Id. at 72.
Ms. Kelley continued with PT until she was discharged on December 13, 2017. The physical therapist noted the following in the discharge assessment:
Ex. 8 at 2.
Petitioner seeks an award in the amount of $134,289.05, consisting of $130,000.00 as compensation for her pain and suffering, and $4,289.05 for past unreimbursable medical expenses. Petitioner's Brief in Support of Damages at 17, ("Pet Brief", ECF No. 37). In her brief, petitioner emphasizes that she suffered and sought active treatment for 13 months, including a cortisone shot, shoulder surgery, and many sessions of physical therapy. Id. Petitioner also claims the injury impacted her activities of daily living and her role as a grandmother. Id. Petitioner is not making a claim for lost wages.
Respondent agreed to the $4,289.05 in unreimbursable medical expenses and the parties memorialized the agreement in a joint status report. Joint Status Report (ECF No. 32). Respondent argues that petitioner should be awarded $85,000.00 as compensation for her actual pain and suffering. Respondent's Memorandum Regarding Damages at 1, ("Res. Mem.", ECF No. 34). He maintains the medical records demonstrate that petitioner's SIRVA resolved within approximately one year. Id. at 4. He argues that petitioner's shoulder surgery was successful, and her pain improved significantly so that she did not require additional treatment once PT concluded. Id.
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, 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." § 15(a)(1)(B). Petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec'y Health & Human Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Medical records are the most reliable evidence regarding a petitioner's medical condition and the effect it has on his daily life. Shapiro v. Sec'y Health & Human Servs., 101 Fed. Cl. 532, 537-38 (2011) ("[t]here is little doubt that the decisional law in the vaccine area favors medical records created contemporaneously with the events they describe over subsequent recollections.")
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. 93-172V, 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)). In evaluating these factors, the undersigned has reviewed the entire record, including medical records, affidavits submitted by petitioner and others, and the parties' briefs.
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 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 also may rely on her own experience adjudicating similar claims.
In Graves, the Court 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. 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." Graves, 109 Fed. Cl. 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 of the Vaccine Program. Id. at 595.
SIRVA cases have an extensive history of informal resolution within the SPU. As of January 1, 2019, 1,023 SIRVA cases have informally resolved
Among the SPU SIRVA cases resolved via government proffer, awards have typically ranged from $77,000.00 to $125,000.00.
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 14 reasoned decisions as of the end of March of 2019 addressing the appropriate amount of compensation in prior SIRVA cases within the SPU.
In six 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 $85,000.00.
Significant pain was reported in these cases for up to eight months. However, in most cases, these petitioners subjectively rated their pain as six or below on a ten-point scale. Only the petitioners in Kim and Attig reported pain at the upper end of the ten-point scale. Most of these petitioners pursued physical therapy for two months or less and none had any surgery. Only two (Attig and Marino) had cortisone injections. Several of these cases (Knauss, Marino, Kim and Dirksen) delayed in seeking treatment. These delays ranged from about 42 days in Kim to over six months in Marino.
Two of the petitioners (Marino and Desrosiers) had significant lifestyle factors that contributed to their awards. In Marino, petitioner presented evidence that her SIRVA interfered with her avid tennis hobby. In Desrosiers, petitioner presented evidence that her pregnancy and childbirth prevented her from immediately seeking full treatment of her injury.
Additionally, in five prior SPU cases, the undersigned has awarded compensation limited to past pain and suffering 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.
Neither party has raised, nor is the undersigned aware of, any issue concerning petitioner's awareness of suffering and the undersigned finds that this matter is not in dispute. The undersigned determines that petitioner had full awareness of her suffering and proceeds to analyze the severity and duration of the injury.
Ms. Kelley was administered the flu vaccine on November 7, 2016, and she experienced immediate pain that increased in severity over the next several weeks. Ex.
1. She sought treatment for the pain from an orthopedic specialist only 23 days after the vaccine. At that time Ms. Kelley reported her pain at 8/10. She received a cortisone shot which relieved some of the pain and was referred to physical therapy. Ex. 3 at 3. Although PT reduced the pain for a period of time, her painful symptoms returned. Ex. 4 at 10. An MRI demonstrated an infraspinatus tear, supraspinatus tendinosis, and bursitis, and surgery was recommended. Ex. 3 at 8, 13. Ms. Kelley elected to proceed with surgery and underwent a subsequent course of physical therapy which concluded on December 13, 2017. Ex. 4 at 10-80, Ex. 8 at 1-3.
Although Ms. Kelley initially experienced pain that she described as so severe it would sometimes bring her to tears, after the cortisone injection, she consistently rated her pain to her physician and physical therapists at 0-2/10. Ex. 3 at 44, Ex. 4 at 19, 23, 29-40, 47, 55. The only noted exceptions were the immediate post-surgical visits in which she rated the pain as 3/10. Ex. 3 at 29. When Ms. Kelley did report painful symptoms, it typically occurred at night and affected her sleep causing fatigue. Ex. 3 at 5, 10, Ex. 4 at 14, 17-18.
Ms. Kelley was discharged from physical therapy with a good prognosis, full range of motion of her left shoulder, and strength within normal limits. Ex. 8 at 2. However, it took her 45 sessions of PT over an eight-month period to reach this outcome. Ms. Kelley continued to experience deficits in her strength during this period. Id. Her total course of treatment lasted 13 months. Ex. 3 at 1, Ex. 8 at 2.
As noted in section IV(B)(ii) above, the undersigned has awarded compensation for pain and suffering above the median proffered SIRVA award in cases characterized either by a longer duration of injury or by the need for surgical repair. On the whole, the MRI imaging in these cases showed more significant findings. Since petitioner in this case had significant findings on MRI and required surgical repair, she should be awarded an amount above the median.
Petitioner's case is similar to two previously cited surgical cases: Collado and Dobbins. In both of these cases as well as the instant case, the petitioner sought treatment within a few weeks of the vaccination and was initially treated with a cortisone shot. Subsequently, each petitioner underwent an MRI which revealed significant findings leading to surgery to repair the damage. Finally, each petitioner followed up the surgery with courses of physical therapy leading to an overall satisfactory result. The undersigned awarded $120,000 in pain and suffering damages to Collado and $125,000 to Dobbins. See n. 11, supra.
Petitioner in this case argues that she should be awarded more than Collado because her course of treatment lasted longer and she had eight times the amount of physical therapy sessions. Pet. Brief at 16. However, the Collado petitioner was in treatment for a similar time period (although with less frequency) as this petitioner and she rated her pain at least an 8/10 for a longer duration despite medication and physical therapy.
Regarding Dobbins, petitioner argues she suffered more because she had a longer duration of symptoms. Pet. Brief at 14. However, the petitioner in Dobbins experienced a post-surgical condition called adhesive capsulitis that caused severe limitations in her range of motion and required many sessions of physical therapy to remedy. Her condition affected her ability to provide care to her terminally ill mother.
In his brief, respondent proposes pain and suffering damages of $85,000.00 and distinguishes Collado by noting that, despite surgery, the petitioner still claimed some ongoing pain. Res. Mem. at 5. Respondent cited to four additional cases in support of his proposal, two of which did not involve surgery. Id. at 5-6. First, respondent relies on Reed v. Sec'y of Health & Human Servs. Id. at 5. In Reed, the undersigned awarded $160,000.00 for pain and suffering to a petitioner who had surgery and nearly two more years of pain and reduced range of motion. Here, petitioner objectively suffered less than the petitioner in Reed and thus is not entitled to $160,000.00 in pain and suffering damages. However, the case does not justify an award as low as $85,000.00.
Next, respondent cited to a non-SPU case, Curri v. Sec'y Health & Human Servs., No 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). Res. Mem. at 5. The petitioner in Curri had surgery and suffered several years thereafter with continued pain. The special master granted her $120,000.00 in past pain and suffering based on similar facts to Collado and Dobbins. In recognition of the ongoing symptoms, he included a future award of $15,400.00. Curri at *6. Like Reed, Curri does not support respondent's proposed damage award of 85,000.00 for a case requiring surgical repair. Rather, it provides support for an award of $120,000.00 to petitioner.
Finally, respondent relies on the pain and suffering awards of Desrosiers ($85,000.00) and Attig ($75,000.00) for support in awarding $85,000.00 to Ms. Kelley. However, as previously noted, these cases did not involve surgery (section IV(B)(i), supra) and thus do not support respondent's position.
In light of all of the above, and based on the record as a whole, the undersigned finds that $120,000.00 in compensation for past pain and suffering is reasonable and appropriate in this case.
Petitioner requests $4,289.05 in past unreimbursable expenses and respondent agrees to this amount. Joint Status Report (ECF 32). Thus, petitioner is awarded $4,289.05 for her past unreimbursable expenses.
In determining an award in this case, the undersigned does not rely on a single decision or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case, giving due consideration to the circumstances and damages in other cases cited by the parties and other relevant cases, as well as her knowledge and experience adjudicating similar cases. For all the reasons discussed above, the undersigned finds that $120,000.00 represents a fair and appropriate amount of compensation for petitioner's actual pain and suffering. In addition, the undersigned finds that petitioner is entitled to compensation for $4,289.05 for her past unreimbursed medical expenses. No award is made for lost wages.
In light of all of the above, the undersigned awards
The clerk of the court is directed to enter judgment in accordance with this decision.
