NORA BETH DORSEY, Chief Special Master.
On September 11, 2015, Amrit Dhanoa ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On October 10, 2017, the undersigned issued a ruling on entitlement, finding petitioner entitled to compensation for her SIRVA. Being previously informed that the parties had been unable to agree upon an appropriate amount of compensation in this case, the undersigned ordered the parties to file simultaneous briefs regarding the damages to be awarded. For the reasons described below, the undersigned finds that petitioner is entitled to an award of damages in the amount of
Respondent's concerns regarding the merits of petitioner's claim were first voiced by respondent's counsel during the initial status conference held on October 26, 2015. Respondent reiterated these concerns in his Rule 4(c) report filed on December 9, 2015. During the subsequent six months, petitioner filed additional proof and the parties attempted to reach an informal settlement. The undersigned conducted a Rule 5 status conference on June 30, 2016.
After hearing from the parties, the undersigned presented her tentative findings and conclusions. Specifically, she found that petitioner received the influenza vaccine in her right (injured) arm, that the onset of petitioner's injury was immediate, that petitioner's failure to mention her shoulder pain to her primary care provider two days after vaccination and to her dermatologist on visits in August and December 2014 was reasonable, and that petitioner's clinical course and diagnosis was consistent with SIRVA. Rule 5 Scheduling Order, issued July 5, 2016, at 2-3 (ECF No. 25). Thereafter, the parties requested a fact hearing which they believed was "necessary to reach a resolution." Joint Status Report, filed July 27, 2016 (ECF No. 26).
The undersigned conducted a fact hearing in Dallas, Texas on December 8, 2016. During the hearing, it became clear that some medical records were outstanding. See Post-Hearing Order, issued Dec. 8, 2016, at 1 (ECF No. 31). Petitioner filed the additional medical records in January and February 2017. See Exhibits 13-16 (ECF Nos. 34, 37, 40).
On March 20, 2017, the parties requested a written determination from the undersigned regarding several areas of disagreement: 1) the arm in which the vaccine was administered and 2) the onset of petitioner's injury. Joint Status Report (ECF No. 41). The undersigned issued a fact ruling finding the vaccination was administered in petitioner's right arm as alleged and her onset occurred within 48 hours. (ECF No. 42). In her ruling, the undersigned included a detailed discussion of the evidence presented and the parties' respective arguments. She encouraged the parties to consider an informal resolution of the claim. Id. at 7.
For several months, the parties engaged in informal settlement discussions. At a status conference on July 7, 2017, they confirmed that the main area of disagreement involved the appropriate amount for petitioner's pain and suffering. See Order, issued July 7, 2017, at 1 (ECF No. 46). They discussed the options available if they could not informally resolve the case. Id. at 1-2.
On August 7, 2017, the parties filed a joint status report requesting "that the Chief Special Master issue a decision determining whether Petitioner is entitled to compensation." Joint Status Report at 1 (ECF No. 47). They added that, if the undersigned determined petitioner was entitled to compensation, they anticipated she would be required to resolve the issue of damages. Id.
Having resolved the pertinent factual issues, the undersigned found that petitioner had met all of the criteria for a SIRVA. Although petitioner's claim was filed before SIRVA was added to the Vaccine Injury Table, and thus could not be found to be a SIRVA Table injury,
The undersigned then ordered the parties to file simultaneous briefs detailing the amount of damages they believe is appropriate and providing arguments and documentation in support of these amounts. Damages Order, filed Oct. 10, 2017, at 1 (ECF No 49). Petitioner filed additional evidence on December 8, 2017 (see exhibits 17-19 (ECF Nos. 51-52)), and the parties filed their briefs on December 11, 2017 (ECF Nos. 54-55).
Prior to receiving the flu vaccine on August 21, 2014, petitioner's medical history was significant for diabetes, heart problems, and several instances of a rash, but there was no evidence petitioner experienced any previous right shoulder pain. See generally Exhibits 2, 5-6. The day before vaccination, petitioner had seen a dermatologist, Dr. Steinmertz, for treatment of a rash she had been experiencing for months. Exhibit 7; see also Transcript ("Tr.") at 11. After vaccination, petitioner visited her primary care physician ("PCP"), Dr. Naghmi,
On October 31, 2014, Ms. Dhanoa visited her PCP, complaining of pain in her right shoulder for six weeks. Pet. Ex. 13 at 1.
At the fact hearing, petitioner took issue with Dr. Naghmi's description of her pain as "mild," claiming she would not have sought medical treatment if that had been the case. Tr. at 77-78. She testified that her level of pain was nine out of ten and that Dr. Naghmi informed her she was suffering from frozen shoulder. Tr. at 19, 24, 77-78. She further testified that her injury began to impact her daily life, making it difficult to open a car door, use the computer, perform household chores, and swim. Tr. at 24-25.
Petitioner first saw Dr. Klein at Orthopedic & Sports Medical Center on November 24, 2014, complaining of a "three-month history of decreasing range of motion, increasing pain in the right shoulder," after receiving the flu vaccine in August. Exhibit 4 at 16. Dr. Klein's evaluation revealed a "limitation of abduction to about 80 degrees," "marked limitation of internal and external rotation," and "pain and tenderness . . . with positive impingement signs." Id.; see also id at 17 (where these areas were marked as abnormal). Dr. Klein diagnosed petitioner with adhesive capsulitis and prescribed a home exercise program ("HEP"), formal physical therapy ("PT"), and a course of Mobic. Id. at 16, 18. Petitioner described her pain level as nine and one-half to ten and onehalf at this time. Tr. at 29. Dr. Klein noted that petitioner was having trouble dressing and sleeping. Exhibit 4 at 16. At the fact hearing, petitioner testified that in addition to her earlier difficulties, she was now having trouble dressing and washing and combing her hair. Tr. at 29.
From December 2014 through February 2015, petitioner visited Dr. Klein on a monthly basis. See Exhibit 4 at 13-15. In December 2014, Dr. Klein prescribed additional PT and an additional course of Mobic. Id. at 18, 22. The billing records submitted by petitioner show she attended thirteen PT sessions from December 3, 2014 through February 10, 2015. Exhibit 14 at 1-4. There is a prescription for additional PT dated February 10, 2015, but Dr. Klein did not specify the frequency of this PT. Exhibit 4 at 21. Additionally, there is no evidence to show that petitioner attended additional sessions in response to this prescription. Exhibit 4 at 21. Although she showed slight improvement in December 2014 and January 2015 (exhibit 4 at 14-15), in February 2015, Dr. Klein noted that petitioner was "not making much progress" (id. at 13). Petitioner testified she had a pain level of ten during this time. Tr. at 31.
On April 24, 2015, Dr. Klein noted that petitioner could not raise her right arm more than 40 degrees and was having trouble sleeping. Exhibit 4 at 12. He administered an injection comprised of "2cc of Kenalog and 2cc of 0.25% Marcaine plan" in petitioner's right subacromial space (id.) and prescribed additional formal PT (id. at 20). Petitioner testified that the injection helped. Tr. at 33-34.
In May and early June 2015, petitioner attended six PT sessions. Exhibit 12 at 14-32. At her session on June 9, 2015, she reported that she had little pain but "just can't move her arm." Id. at 14. She saw Dr. Klein again on June 18, 2015, reporting that her "pain [was] much better . . . [and] [s]he [was] able to sleep at night." Exhibit 4 at 10. Petitioner described herself as "a little better . . . but not fully recovered" at that time. Tr. at 34.
After a six week gap, petitioner resumed formal PT in late July 2015, attending four sessions. Exhibit 12 at 1-13. On July 28, 2015, petitioner reported that she had improved since her last PT session "but still had difficulty reaching overhead or behind her back." Id. at 9. At her next session, she indicated she "was pretty sore after last session," describing most of her pain as occurring "at the tip of the shoulder blade and around the shoulder joint." Id. at 7. On August 11, 2015, petitioner stated that her pain "comes and goes. But her arm is stiff." Id. at 5. Two days later, she noted that she "was sore after last session, but feels better today." Id. at 3. On October 15, 2015, petitioner was discharged from formal PT because she "had not been seen in PT since 8/13/15 and has not returned phone calls to schedule future appointments." Id. at 2. Petitioner testified that she discontinued formal PT because she because "it was too much to keep going twice a week." Tr. at 39. She added that she began taking medication which helped and continued her HEP. Tr. at 39-40. Petitioner described her pain level as six out of ten at that time. Tr. at 39.
Almost one year passed before petitioner returned to Dr. Klein on July 25, 2016. Although there was "no change in character or location of problem," Dr. Klein recorded that "[t]here has been significant improvement in symptoms since last visit" with a pain level of five and twenty percent improvement. Exhibit 15 at 9. He noted that the "[l]ast injection helped some" but reported that petitioner had "some tingling and numbness down to her arm at times and some more pain in the evening which prompted her visit." Id. After examining petitioner, he noted that she "has just about full range of motion with pain at extremes" and equal gross motor and sensory reflexes. Id. at 10. Dr. Klein discussed the possibility of another cortisone injection if petitioner's pain worsened and she had trouble sleeping, but instructed petitioner to continue her HEP. Id.
At the fact hearing in December 2016, petitioner characterized her shoulder as "much better" (Tr. at 40) and noted that her condition "had improved a lot" (Tr. at 81). However, she indicated that her pain would return at times, for example when she drove for more than 30 to 40 minutes. Tr. at 40. She testified that she experienced pain "at least two or three times" per week and could no longer participate in activities she previously enjoyed such as swimming and Zumba dance classes. Tr. at 41. In response to questioning from the undersigned, petitioner demonstrated her current range of motion. She showed she could raise both arms overhead and extend them in front of her, but could not move her right arm as far up as her left arm when placing it behind her back. Tr. at 81-82. Testifying that she had difficulty washing her left side, petitioner showed that she could not extend her right arm as far over her left shoulder as she could extend her left arm over her right shoulder. Tr. at 82.
On July 18, 2017, petitioner saw Dr. Klein again. At this visit, she reported that her symptoms had "worsened since last visit" but again rated her pain at five out of ten. Exhibit 17 at 2. Dr. Klein observed that petitioner lacked the last ten degrees of internal and external rotation and showed "[m]ildly positive impingement signs." Id. He described most of her pain and tenderness as occurring at the trigger point of the right rhomboid group and extending up to the trapezius (id. at 2) and opined that petitioner's condition was "more triggering pointing of the rhomboid . . . then [sic] . . . adhesive capsulitis" (id. at 3). He prescribed another course of Mobic, went over some stretching exercises which should be performed daily, and emphasized the importance of staying well hydrated. Id.
On November 22, 2017, petitioner visited a doctor in India who administered a cortisone injection and ordered an MRI which was performed the next day. See Exhibits 18-19. The results of the MRI show subacromial-subdeltoid bursitis, supraspinatus tendinosis, and degenerative changes. Exhibit 18.
The parties have stipulated that petitioner is entitled to past unreimburseable expenses in the amount of $862.15. Respondent's Brief ("Res. Brief") at 1 & n.2 (ECF No. 54); Petitioner's Brief ("Pet. Brief") at 1 n.1 (ECF No. 55). Thus, the only issue before the undersigned is the amount of pain and suffering to be awarded.
Petitioner asserts that she is entitled to $100,000.00 for pain and suffering. Pet. Brief at 1. To support this claim, she maintains that she suffered excruciating pain in the months following vaccination, endured more than three years of pain and limited range of motion, and continues to experience pain and weakness. Id. at 6-7. Emphasizing that petitioner "was forced to visit a doctor while abroad in India" in late 2017, petitioner "believes that she will suffer permanent residual effects from her SIRVA injury." Id. at 7. Petitioner claims that she still "experiences pain when driving and using a computer," noting that "[her] employment as a travel agent requires lengthy hours on the computer." Id. Petitioner stresses that she still needs pain medication (Tylenol) and can no longer perform recreational activities such as "biking, gardening, swimming, and Zumba." Id.
Respondent argues for a lower amount, $75,000.00, for petitioner's pain and suffering. Res. Brief at 1. Emphasizing the mild nature of the pain and almost full range of motion experienced by petitioner in 2016, he maintains that petitioner suffered "pain and hardship for a period of about eleven months, from September 2014 through August 2015." Id. at 6. Respondent attributes the setbacks experienced by petitioner to instances "when PT was not performed." Id. Acknowledging that petitioner recently underwent another MRI and may have received a cortisone injection while in India, respondent suggests that "the November 23, 2017 MRI indicates that degenerative findings, unrelated to SIRVA, may be playing a role in [petitioner's] current condition." Id.
Both parties cite to other SPU cases involving SIRVA after receiving a flu vaccine in support of their claimed amounts. Petitioner cites cases in which petitioners were awarded $85,000.00 to $100,000.00 for pain and suffering. Pet. Brief 5-6. The amount of $75,000.00 was awarded in all cases cited by respondent. Res. Brief at 6-7.
The evidence in this case shows petitioner suffered shoulder pain within 48 hours of receiving the flu vaccine on August 19, 2014. Petitioner describes her level of pain initially as five on a scale of ten. However, her pain level increased significantly, to nine and one-half or ten and one-half, by the time petitioner first saw Dr. Klein on November 24, 2014.
On November 24, 2014, Dr. Klein diagnosed petitioner with adhesive capsulitis, noting she had about 80 degrees of abduction. Despite thirteen sessions of PT during December 2014 through early February 2015, petitioner's range of motion decreased to 40 degrees by her April 24, 2015 appointment. This further reduction is evidence of the pain petitioner was experiencing. Additionally, she reported difficulty performing basic tasks such as washing and combing her hair.
The record shows, however, that petitioner obtained significant relief from the injection she received on April 24, 2015 and ten PT sessions she attend thereafter. Although petitioner continued to experience intermittent pain and a slight decrease in range of motion after August 2015, her condition did not deteriorate to the level of pain and limited movement she experienced in April 2015. Moreover, petitioner has dealt with these more symptoms for more than three and one-half years.
The only case cited by the parties which involved an award not based an informal agreement is Desrosier v. Sec'y of Health & Human Servs., No. 16-224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017). In that case, the undersigned awarded $85,000.00 for pain and suffering to a petitioner who suffered a SIRVA after receiving the tetanus, diphtheria, acellular pertussis vaccine in March 2015. Id., at *1. A review of the facts in Desrosier reveals symptoms which were less severe than those initially experienced by petitioner in this case. For example, after approximately one month of formal PT, the petitioner in Desrosier indicated "[s]he was only experiencing pain with certain movements" and had improved range of motion and strength. Id., at *2. A few weeks later, it was reported that the Desrosier petitioner had "full range of motion with discomfort on full flexion and abduction." Id. However, the petitioner in Desrosier was hampered by the fact that she was six months pregnant at the time of the vaccination. She was unable to avail herself of treatments which would have improved her condition such as pain medication, steroid injections, and surgery. Additionally, petitioner was attempting to work while caring for her one year old child and, after giving birth, her infant. The Desrosier petitioner suffered a relapse after giving birth and attempting to lift her one month old. Id., at *3. In that decision, the undersigned stressed that the amount of petitioner's award was calculated in part to reflect petitioner's particular circumstances and limitations in treatment options imposed by her pregnancy. Id., at *5. Although the circumstances in this case are different than those in Desrosier, the undersigned finds the amount awarded for pain and suffering in this case should be comparable to that in Desrosier.
The remainder of the cases cited involved awards based upon amounts agreed to by the parties.
Of the cases cited by petitioner, there is one with facts closest to the instant case. Like the petitioner in this case, the petitioner in that case participated in formal PT and received multiple injections. However, that petitioner required three injections which provided relief for approximately three weeks each time. Additionally, that petitioner underwent seven months of formal PT, and at one point considered the possibility of surgery. Petitioner in this similar case was awarded $95,000.00 in pain and suffering.
As part of her argument, petitioner in this case maintains that she continues to suffer the effects of her injury. She stresses that she was seen for shoulder pain as recently as November 2017, at which time she received a second injection. However, it is clear that petitioner's pain following the April 24, 2015 injection was significantly less than the pain she experienced previously. Additionally, her range of motion was much improved. To cover additional pain petitioner is likely to experience for the next year, the undersigned will award some compensation for future pain and suffering.
Like the petitioner in this case, the petitioner who was awarded $95,000.00 for pain and suffering claimed that she continued to suffer the effects of her injury. Because the amount awarded was based on an amount agreed upon by the parties, the portion being paid for future pain and suffering as opposed to actual pain and suffering was not identified.
In this case, the undersigned awards $85,000.00 for actual pain and suffering and an additional $10,000.00 for future pain and for the year following this decision. The amount designated for future pain and suffering is reduced to its net present value, $9,900.99, using a net discount rate of 1%. See § 15(f)(4)(A) (requiring a reduction to net present value for future compensation being currently paid); see also Neiman v. Sec'y of Health & Human Servs., No. 15-631V, 2016 WL 7741742, at *1 (Fed. Cl. Spec. Mstr. Oct. 31, 2016) (using a net discount rate of 1% for the first 15 years and 2% thereafter).
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.
82 Fed. Reg. 6303 (Qualifications and Aids to Interpretation for SIRVA); see also National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg. 45132, Notice of Proposed Rulemaking, July 29, 2015 (citing Atanasoff S, Ryan T, Lightfoot R, and Johann-Liang R, 2010, Shoulder injury related to vaccine administration (SIRVA), Vaccine 28(51):8049-8052).
