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

TERESA SHERBINE
, * PUBLISHED

* Petitioner, * No. 17

- 413V

*

v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * D ecision Awarding D amages; Pain and AND HUMAN SERVICES, * Suffering; Table Injury; Influenza (“Flu”)

* Vaccine; Shoulder Injury Related to Vaccine Respondent. * Administration (“SIRVA”).

* * * * * * * * * * * * * * * * *
Ronald Craig Homer , Conway, Homer, P.C., Boston, MA, for petitioner. Sarah Christina Duncan , U.S. De partment of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On March 23, 2017
, Teresa Sherbine 2 (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa

- 10, et seq. , (“Vaccine Act” or “the Program” ). 3 Petitioner alleges that she suffered left shoulder injuries caused by an October 30, 2015 influenza (“flu”) vaccination . Petition at 1

- 2

. A Ruling on

1 Because this Decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this D ecision on the website of the United States Court of Federal Claims, in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 days within which to re quest 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).

2 Petitioner filed this case as Teresa Tinley . On June 21, 2019, the Court granted petitioner’s motion to amend the case caption to reflect petitioner’s name change to Teresa Sherbine. Order dated June 21, 2019 (ECF No. 61).

3 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 

# In the United Sta tes Court of Federal Claims

OFFICE OF S PECIAL M ASTERS Filed: March 27, 20202

I. PROCEDURAL HISTORY

The procedural history from the date the petition was filed through the date of the Ruling on Entitlement (“Ruling”) was set forth in the Ruling, and will not be repeated here. See Ruling dated Jan. 31, 2019 (ECF No. 48).

After the Ruling issued , petitioner filed additional medical records from Somerset Family Practice . Petitioner’s Exhibit (“Pet. Ex.”) 12. From approximately February until October 2019, the parties attempted to resolve damages informally. On October 7, 2019, petitioner notified the undersigned that the parties had reached an impass e in resolving damages, and proposed that the parties file respective briefs setting out their positions, after which the undersigned could resolve damages. Pet. Status Rep ort , filed Oct. 7, 2019 (ECF No. 69). The undersigned held a status conference on October 2 3 , 2019, in which the parties agreed to a briefing schedule. See order dated Oct. 24, 2019 (ECF No. 70 ).

On December 9, 2019, the petitioner filed supporting lost wage documentation and her memorandum in support of damages. Pet. Ex. 13 ; Pet. Memorandum in Support of Damages (“Pet. Mem.”), filed Dec. 9, 2019 (ECF No. 74) . Thereafter, on January 23, 202 0, respondent filed his memorandum regarding damages

. Respondent’s Memorandum Regarding Damages (“Resp. Mem.”), filed Jan. 23, 2020 (ECF No. 75).

On February 12, 2020, the undersigned issued an order finding petitioner likely entitled to some amount of lost wages , but additional documentation was required to determine this amount. Order dated Feb. 12, 2020, at 6 (ECF No 76). The Court directed petitioner to file additional documentation and noted that w ithout such additional proof, petitioner would not be entitled to past nor future lost wages. Id. at 6

- 7.

On March 13, 2020, in response to the Court’s February 12, 2020 Order, “petitioner [] reported that the directors and office personnel she reported to are no longer with the Low

4 The parties have agreed to re imbursement in the amount of $269.32 in past unreimbursed expenses. See Pet. Memorandum in Support of Damages (“Pet. Mem.”), filed Dec. 9, 2019, at 8 (ECF No. 74) ; Respondent’s Memorandum Regarding Damages (“Resp. Mem.”), filed Jan. 23, 2020, at 5 (ECF No . 75)

. Petitioner is not seeking damages for lost wages. See Pet. Status Rep ort , filed Mar. 13, 2020, at ¶ 3 (ECF No. 77). Entitlement issued on January 31, 2019, in which the unde rsigned found tha t petitione r was entitled to compensation. Ruling on Entitlement (“Ruling”) dated Jan. 31, 2019 (ECF No. 48). The pa rties now see k a Decisi on awarding d amages to petitioner.

After c onsideration of a ll of the e vidence, a nd for the reasons described below, the undersigned finds that petitioner is entitled to an award of $ 70,000.00 for a ctual pain and suffering a nd $269.32 for a ctual unreimbursable expenses. 4 Petitioner is not entitled to damages for futur e p ain and suffering.3

The matter is now ripe for adjudication.

II. FACTUAL HISTORY

A. Factual Background Set Forth in the Ruling 5

Ms. Sherbine was 65 years old when she received the flu vaccine in her left arm at a Rite Aid pharmacy on October 30, 2015

. Pet. Ex. 1 at 1

- 2. She was in good health and had no prior h istory of pain or injury in either shoulder. See Transcript (“ Tr. ”) 6

- 7; see generally Pet

. Ex. 7 at ¶¶ 1, 9

- 10, 15

- 16. Petitioner averred in her affidavit that the injection “immediately hurt,” and that the pharmacist told her it would be sore for a couple of days. Pet. Ex. 7 at ¶ 4. Petitioner stated that the pain worsened in November 2015 and by January 2016
, the range of motion in her left shoulder had declined. Id. at ¶¶ 6

- 7. During this time, she used ice packs throughout the day. Id. I n February 2016, she was still in pain and realized it was not going to go away on its

own. Id. at ¶ 8.

On March 22, 2016, petitioner returned to Rite Aid to seek advic e. Pet. Ex. 7 at ¶ 9. A Vaccine Adverse Event Reporting System (“VAERS”) report was filed in petitioner’s name by Tim Lisberg of Rite Aid . Pet. Ex. 6. The VAERS report stated that petitioner had “pain in upper arm, ‘debilitating’ according to patient. Pain still present as of 3/22/16, when vaccine given 10/30/15.” Id. at 1. Petitioner testified that initially she went to Rite Aid rather than a doctor “[t]o ask for advice. I thought this is where it started, maybe they can direct me, maybe they can tell me what I need to do or tell me if this has happened before to others . . . just to get advice.” Tr. 19 . Petitioner testified that at Rite Aid she was told her VAERS report would be filed and she was informed of the Program. Id.

On April 6, 2016, petitioner presented to orthopedist Jane Tan, M.D. Pet. Ex. 3 at 1. Petitioner reporte d that she had a flu shot in October 2015 and afterward had swelling and redness. Id. She reported that since then
, she had difficulty with overhead reaching and dropping objects. Id. On examination, she exhibited positive impingement signs under the N eer and Hawkins tests and tenderness over the bicipital groove. Id. Her left arm demonstrated reduced external rotation of 45°
, compared to 60° on her uninjured right side. Id. X

- rays were taken and found to be normal. Id. Dr. Tan diagnosed petitioner with left rotator cuff syndrome and left biceps tendinitis
, administered a cortisone injection to the left subacromial space , and provide d petitioner with a physical therapy prescri ption for use as needed. Id. at 1

- 2.

5 This history is largely taken the factual history set forth in the Ruling, modified to focus on the issues here. See Ruling dated Jan. 31, 2019, at 3

- 6 (ECF No. 48)

. Income Home Energy As sistance P rogram (‘LIHEAP’) a nd, therefore, such e vidence as required in the a forementioned Order would be unobtainable.” Pet. Status Report, filed Mar. 13, 2020, at ¶ 2 (E CF No. 77). Therefore, petitione r “rescind[ed] he r claim for past and future lost wa ges .” Id. at ¶ 3.4

6 The record states, “Right AROM [Active Range of Motion] .” Pet. Ex. 4 at 16. However, the reference to the right shoulder appears to be a typo. The rest of physical therapist Wheeler’s initial evaluation record indicates that the evaluation concerned petitioner’s left shoulder. See, e.g. , i d. ( “TTP [tender to palpation] along L upper arm

. ” ); i d. at 17 ( “Patient presents with signs and symptoms that are consistent with: L arm pain

. ” ) ; i d. at 15 ( noting a diagnosis of “M79.622 Pain in left upper arm ” and “ M25.512 Pain in left shoulder” )

.

7 Petitioner did not see an orthopedist after this visit. On May 25, 2016, petitioner was seen by nurs e pr actitioner (“NP”) Ka re n Richard

Reynolds at Eagle s Landing F amily P ractice. Pet. Ex . 2 at 1. Petitioner re ported that she received a flu shot at Rite Aid in October 2015 and had “severe and constant” pain in her left arm. Id. NP Richard-Reynolds diagnosed petitioner with left upper arm pain and provided her with a physical therapy referral. Id. at 2.

On June 1, 2016, petitioner reported to physical therapist S tevi Wheeler of Benchmark Physical Therapy fo r an initial evaluation. Pet. Ex. 4 at 15. Petitioner reported that she received a flu shot in her left arm and felt som ething rip in he r arm. Id. Petitioner reported that she

“ ha[d] been very inhi bited for se veral months, and ha d ‘ dealt with it ’ for s everal months unti l April ” when she went t o see a n orthopedist a nd received a ste roid injection with no changes. I d. Petitione r reported moderate to severe loss of function, severe sti ffness, pain, and weakness, and moderate to severe p roblems with driving. Id. On examination, physical therapist Wheeler found that petitioner’s active ra nge of motion wa s limited to 85° in flexion and 70° in abduction and sta ted a goal of 180 ° for both. Id. at 16. 6

On June 2, 2016, petitioner reported to physical therapist Wheeler for a s econd physical therapy se ssion. Pet. Ex. 4 a t 13. Petitioner reported a pa in level of 5/10 and that her arm was better but remained sore when trying to sleep. Id. On J une 6, 2016, petitioner returned for another ph ysical therapy session. Id. at 10. She re ported a pa in level of 5/10, her pain was better, and she h ad not had an episode of pain reaching 10/10 recently. Id. On June 8, 2016, petitioner attended a fourth physical therapy se ssion. Id. at 7. She re ported a pa in level of 5/10 and that she wa s slowly getting be tter. Id. On June 30, 2016, after four sessions, petitioner was discharged from physical ther apy a t her request for financial reasons. Id. at 4 -6.

On June 9, 2016, petitioner was seen by ph ysicia n assistant (“PA”) Miranda S tone at Eagle s Landing F amily P ractice. Pet. Ex. 2 at 4. Petitioner reported pain in her left arm for the past eight months following a flu vaccination on October 30, 2015. Id. Petitioner believed she was injected in a n erve and had experienced sharp a nd stabbing p ain with constant throbbing. Id. She state d that physical therapy ha d not resolved her pain. Id. PA Stone d iagnose d petitioner with left shoulder stra in, directed petitioner to stop physical therapy fo r two weeks, a nd referred her f or an orthope dic consultation. 7 Id.

Ms. Sherbine filed an affidavit dated February 8, 2017 in which she stated that prior to the October 30, 2015 vaccination, she was in “good health,” wa lked three miles a da y , and did5

I was a very healthy person. I never had any injuries, [took] no medications, very self

- sufficient, very independent woman. I cut grass, four acres of grass every weekend, cut tree limbs down, cleaned my house, did interi or decorating for people, previously had worked in the construction industry
, . . . did water aerobics, exercising, walking two, three miles a day, sometimes twice a day, just very active.

Tr. 6

- 7.

Petitioner testified that she “experienced pain immediately [after vaccination] . . .

. [I] t’s still sore right here.” Tr. 12. She testified that at the time of vaccination she had “n o insurance other than Medicare ” and h er sole sources of income were Social S ecurity and income from a seasonal job where she formerly worked for approximately three to five months per year. Tr. 15

- 16

. S he explained that she considered going to the emergency room due to her shoulder pain but “[o]nly having Medicare, I knew that I would have to pay at least [a] 20 percent copay and it was the money factor.” Tr. 20. For this reason, she opted to see an orthopedic specialist rather than going to the emergency room. Id.

She testified that the “cortisone shot [administered by orthopedist Dr. Tan] really didn’t do anything that I could tell.” Tr. 22. She explained that after four physical therapy sessions and two primary care visits, she had ceased seeking formal treatmen t for her shoulder because “[n]o one seemed to understand about the pain. . . . T hey wanted to mask it with pain pills

. . . . I did not want to take pain pills. I was wanting to know what was wrong and what we could do to water a erobics. Pet. Ex. 7 at ¶ 1. She a verred that the flu vaccine a dministered on October 30, 2015 “immediately hu rt.” Id. at ¶ 4. The mornin g a fter the vaccine administration, the injection site “ was puffy and more re d than the pr evious da y. The area w as very sor e to the touch.” Id. at ¶ 5. She described that in November 2015, “the pain i n my left arm at the i njection site increased to a throbbing pain. . . . It be came difficult to sleep. . . . Due to the pa in tha t accompanied trying to find a c omfortable pos ition to slee p, I was up and down throughout the night.” Id. at ¶ 6. By January 2016, “the ra nge of motion of my left arm de clined. I f I moved my arm towa rds my backside or trie d to ra ise it ove r my head to put on clothe s, I had excruciating pa in. I t was as if a knife we re stabbin g int o my flesh.” Id. at ¶ 7.

Petitioner further averred that “[ s]ince my flu vaccination
, I a m unable to use my left arm to dress myself. I cannot use my left arm to he lp wa sh my back or lift it hig h enough to wa sh my hair. ” Pet. Ex. 7 at ¶ 15. “ Simply op ening or closing my car door, or lat ching a s eatbelt wit h my left arm leads to severe p ain. As a whole
, I h ave had to adjust my daily rou tine in order to avoid the excruciating p ain .” Id. “ My entire li fe changed after the flu vaccine.” Id. a t ¶ 16.

At the hearing, petitioner testified about her pr e-vaccination health status. She testifi ed that before th e va ccination she never had problems with either shoul der. Tr. 7. She fur ther testified that prior to he r vaccination,6 B. Medical Records Filed After the Ruling

After the Ruling issued , petitioner filed update d medical records from Somerset Family Practice (“Somerset”) , which cover her medical care after she moved to Pennsylvania
, from 2017 to 2019 . Pet. Ex. 12. Generally, these records establish that petitioner has been diagnosed and treated with Barrett’s e sophagus, thrombocytopenia, elevated liver function tests, and prediabetes. Id. at 2.

Relevant to her shoulder injury, p etitioner was seen at Somerset on December 15, 2017, for complaints of sore throat, cough, and congestion. Pet. Ex. 12 at 13. At that visit, there is no reference to shoulder or arm pain. Id. at 13

- 14. She was next seen October 2, 2018, for a new patie nt visit. Id. at 8. At that visit, Dr. Mark Yaros charted, “no overwhelming ly concern ing joint pains, severe musculoskeletal symptoms , debility, or increased weakness.” Id. Of note, p etitioner refused recommended vaccines. Id. at 9. Dr. Yaros noted, “she has [ sic ] a prolonged L arm pain after her last Flu vaccine

- 2014. She will not accept another vaccine for fear of the prolonge [ d ] arm pain had in the past.” Id. There is no reference to current shoulder or arm pain. See id. at 8

- 9

. The last visit was November 23, 2018, for a checkup

. Id. at 3. There is no mention of shoulder or arm pain at that visit. Id. at 3

- 4.

Records from petitioner’s gastroenterologist, Dr. M. Javad Saddat, for care and treatment in 2017 and 2018 are incl uded in the Somerset records. Dr. Saddat’s records show that petitioner has been diagnosed with mild gastritis, upper esophageal stricture, and Barrett’s esophagus. Pet. Ex. 12 at 34

- 35. Petitioner has undergone a balloon dilation of her upper esophagus , EGD with biopsy, and colonoscopy

. Id. at 33, 35. Dr. Saddat’s records do not document any complaints by petitioner of shoulder or arm pain.

T he records also include an emergency room note dated August 24, 2017, describing petitioner’s complaint of vertigo. Pet. Ex. 12 at 36. A review of systems documented by Dr. Christine Pluto states “no history of significant joint pain, weakness of muscles, or stiffness.” Id

.

III. PARTIES ’ POSITIONS AS TO PAIN AND SUFFERING

Petitioner seeks damages in the amount of $90,000 .00 for past and future pain and suffering. Pet. Mem. at 14. She asserts that this amount is warranted based on the severity and make it be tter, and they could no t give me that answer.” T r. 23. She e xplained that physical therapy ha d helped some, but she stopp ed going be cause she ran out of money for c opays and felt the last visit ma y ha ve re injured her shoulder

. Id.

At the hearing on July 17 , 2018, petitioner testified that while her shoulde r was “somewhat better,” she continued to have pa in. Tr. 25. She oc casionally t akes ibuprofen for throbbing pa in. Id. Petitioner is still una ble to sleep on the side of he r injured shoulder. Tr. 26. Also, she had to be careful about picking up items to avoid dropping them. Id.7

8 Petitioner writes in her memorandum that she attended five physical therapy sessions, but the records indicate she attended only four. Compare Pet. Mem. at 10, with Pet. Ex. 4 at 5.

9 Marino v. Sec’y of Health & Human Servs. , No. 16

- 0622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018).

10 Dirksen v. Sec’y of Health & Human Servs. , No. 16

- 1461V, 2018 WL 6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018).

11 Bruegging v. Sec’y of Health & Human Servs. , No. 17

- 0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May 13, 2019). duration of he r pain as well a s the degree of treatment necessary to treat he r shoulder injury related to vacc ine administration (“ SIRVA ”) . Id. a t 10-14. She a ttende d four 8 physical therapy sessions, had an X-ray of he r left shoulder
, a c ortisone inj ection, and one appointment with an orthopedic specialist. Id. at 10. Prior to her inj ury, petitioner was very active a nd performed indoor and outdoor chores, including ya rd work, cutting four a cres o f grass, cleaning tre e li mbs, and house c leaning. Id. a t 10-11. She e specially e njoyed walking and socia l activities. Id. at 11. As a re sult of her shoulder injury, she ha d difficulty slee ping, became inactive, a nd gained weight. Id.

Petitioner provides a summary o f cases where p etitioners did not undergo shoulder surgery a nd were a warded pain and suffering damages ranging f rom $60,000.00 to $110,000.00. See Pet. Mem. at 12-13. Of the cases cited, petitioner suggests that he r case is m ost comparable
to Marino, 9 Dirksen
, 1 0 a nd Bruegging. 11 Id. at 14. Petitioner states that in Marino, the Court awarded $75,000.00 to a petitione r who had intense pa in for se ven months, saw a n orthopedist twice, and received one c ortisone injection. Id. a t 12. In Dirksen, the petitioner received $85,000.00, where th e inj ury was described a s mild to moderate, but the pe titioner ha d significant pain for eig ht months and sequelae fo r four yea rs. Id. at 13. And in Bruegging, $90,000.00 was awarde d to petitioner who require d physical therapy and two steroid injections, and improved after ten months. Id.

I n contrast, respondent asserts that petitioner had a re latively mi ld clinical course, as evidenced by th e fa ct that she did not se ek treatment for more than five mont hs, she had three evaluations, attende d four physical therapy s essions, had one ster oid injection, and took prescription medication through September 2016. Re sp. Mem. at 7-8. Respondent also points out that petitioner did not se ek treatment after J une 2016, and that she did not re port continued shoulder pain to her physicians in 2017 or 2018 . Id. at 8. Based on these f acts, respondent argues that $40,500.00 is a re asonable awa rd for p ain and suffering. Id.8

IV. VACCINE ACT REQUIREMENTS FOR AWARD OF 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.” § 15(a)(4). Additionally, petition er may recover “actual unreimbursable expenses incurred before the date of judgment ,” including those that “ (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 S ervs. , 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

- 0172 V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“ [T] he 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 ground s , 70 F.3d 1240 (Fed. Cir. 1995)).
The undersigned may also look to prior pain and suffering awards to aid in 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

12 Knauss v. Sec’y of Health & Human Servs. , No. 16

- 1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018). Respondent cites the Knauss 12 case a s the most sim ilar to petitioner’s case

. Resp. Mem. at 8. The pe titioner in Knauss was awarded $60,000.00 in pain and suffering da mages. Knauss, 2018 WL 3432906, at *1. As respondent summarized, the Knauss petitioner did not se ek treatment until thre e mon ths after va ccination, attended more ph ysical therapy than Ms. Sherbine, and had one ster oid injecti on. Resp. Mem. at 8. Respondent disagrees tha t Marino, Dirksen, a nd Bruegging are sim ilar to petiti oner’s c ase, arguing that the petitioners in those c ases all ha d more tre atment or c ompelling c ircumstantial evidence wa rranting la rge r awa rds for pa in and suffering

. Id. a t 8- 9. In Ms. Sherbine’s case, respondent argues that there is “lack of objective e vidence” o r “corroborating testimony ” t o support the award which petitioner seeks. Id. at 9.9

13 From July 2014 until September 2015, t he Special Processing Unit (“ SPU ”) was overseen by former Chief Special Master Vowell. For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were assigned to undersigned.

14 Prior decisions awarding da mages, including those resolved by settlement or proffer, are made public and can be searched on the U.S. Court of Federal Claims ’ website by keyword and/or by special master. On the C ourt’s main page, click on “Opinions/Orders” to access the database. A ll figures included in this Decision are derived from a review of the decisions awarding damages within SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited are approximat ions

.

15 Additionally, 41 claims all eging SIRVA have been dismissed within the SPU.

16 There have been 21 prior cases in which petitioner was found to be entitled to compensation, but where damages were resolved via a stipulated agreement by the parties rather than government proffer. awarded in other cases as a n aid in determining the prope r amount of damages in this case”)

. And, of c ourse , the undersigned may also rely on her own experience a djudicating sim ilar claims. 13 Hodges v. Sec’y of Healt h & Huma n Servs. , 9 F.3d 958, 961 (Fe d. Cir. 1993) (noting that Congre ss contemplated the special masters would use their a ccumulated expertise in the field of vaccine injuries to judge the merits of individual claims). Importantly, however, it must also be stressed that pain and suffering is not determined based on a c ontinuum. See Graves v. Sec’y of Health & Human Servs. , 109 Fed. Cl. 579 (2013).

I n Graves , Judge Me rrow re jected the spe cial master’s approach of awarding compensation for pa in and suffering ba sed on a sp ectrum from $0.00 to the statutory $250,000.00 cap. Judge Merrow noted that this constituted “the forcing of a l l suffering a wards into a g lobal comparative sc ale in which the individual petitioner’s suffering is compared to the most e xtreme cases and reduce d accordingly.” Graves, 109 Fed. Cl. at 589-90. Instead, Judge Merr ow assessed pa in and suffering b y looki ng to the re cord evidence, prior pain and suffering awards within the P rogram, and a surve y o f similar inj ury claims outsi de of the P rogram. Id. at 595.
Although this case was removed f rom the Special P rocessing Unit (“ SPU ”) on September 30, 2019, the undersigned finds statistical data fr om SIRVA c ases resolved in SPU to be informative, as they ha ve a n extensive hist ory of informal resolution within the S PU. 14 As of January 1, 2020, 1,405 SIRVA cases have info rmally r esolved 15 within the SPU since it s inception in July 2014. Of those cases, 817 resolved via the government’s prof fer on award of compensation, following a prior rulin g that petitioner is entitled to compensation. 1 6 Additionally, 567 SPU SIRVA cases resolved via stipulated agreement of the parties without a prior ruling on entitlement.10

17 Typical range refers to cases within the second and third quartiles. Add itional outlier awards also exist. The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 21 SPU SIRVA cases resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00 with a median awar d of $115,772.83. For these awards, the first and third quartiles range from $90,000.00 to $160,502.39.

18 Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist. The full range of awards spans from $5, 000.00 to $509,552.31. Additionally, two stipulated awards were limited to annuities, the exact amounts of which were not determined at the time of judgment.

19 These cases are: Dagen v. Sec’y of Health & Human Servs. , No. 18

- 0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6, 2019) (awarding $65,000.00 for actual pain and suffering and $2,080.14 for actual unreimbursable expenses); Goring v. Sec’y of Health & Human Servs.
, No. 16

- 1458V, 2019 WL 6049009 (Fed. Cl. Spec. Mstr. Aug. 28, 2019) (awarding $75,0 00.00 for actual pain and suffering and $200.00 for actual unreimbursable expenses); Lucarelli v. Sec’y of Health & Human Servs. , No. 16

- 1721V, 2019 WL 5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (awarding $80,000.00 for actual pain and suffering and $380 .54 for actual unreimbursable expenses); Kent v. Sec’y of Health & Human Servs. , No. 17

- 0073V, 2019 WL 5579493 (Fed. Cl. Spec. Mstr. Aug. 7, 2019) (awarding $80,000.00 for actual pain and suffering and $2,564.78 to satisfy petitioner’s Medicaid lien); Capa sso v. Sec’y Health & Human Servs. , No. 17

- 0014V, 2019 WL 5290524 (Fed. Cl. Spec. Mstr. July 10, 2019) (awarding $75,000.00 for actual pain and (. . . continued) Among the SPU SIRVA cases resolved via government proffer, awards have t ypically ranged from $75,044.86 to $122,038.99, 17 with the median awa rd at $95,000.00. Formerly, these awards were pre se nted by the parties as a tot a l agreed upon dollar figure wi thout se parately li sted amounts for e xpenses, lost wages, or pa in and suffering. Since late 2017, the g overnment’s proffer has included subtotals for e ach type of compensation awarded.

Among S PU SIRVA cases resolved via sti pulation, awards have t ypically ranged from $50,000.00 to $92,500.00, 18 with the media n award at $70,000.00. In most instances, the parties continue to present the st ipulated awa rd as a tot a l agreed upon dollar figure without se parately listed amounts for e xpenses, lost wages, or pa in and suffering. Unlike the proffered awards, which purportedly r epresent full c ompensation for a ll of petitioner’s damages, stipulated awards also typically r epresent some de gree of litigative risk negotiated by the parties.
Additionally, since the inception of S PU in July 2 014, there ha ve be e n a nu mber of reasoned decisions awarding da mages in SPU SIRVA c ases where the parties were una ble to informally r esolve damages. Typically, the primary poin t of dispute ha s been the appropriate amount of compensati on for pa in and suffering.
In seventeen prior S PU cases, petitioners were awarded compensation for pain and suffering be low the a mount of the media n proffer discusse d above. These awa rds for a ctual pain and suffering ranged from $60,000.00 to $90,000.00. 1 9 These c ases included injuries with a11

suffering and $190.00 for actual unreimbursable expenses); Schandel v. Sec’y of Health & Human Servs. , No. 16

- 0225V, 2019 WL 5260368 (Fed. Cl. Spec. Mstr. July 8, 2019) (awarding $85,000.00 for actual pain and suffering and $920.03 for actual unreimbursabl e expenses); Bruegging
, 2019 WL 2620957 (awarding $90,000.00 for actual pain and suffering and $1,163.89 for actual unreimbursable expenses); Pruett v. Sec’y of Health & Human Servs. , No. 17

- 0561V, 2019 WL 3297083 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) (awar ding $75,000.00 for actual pain and suffering and $944.63 for actual unreimbursable expenses); Bordelon v. Sec’y of Health & Human Servs. , No. 17

- 1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (awarding $75,000.00 for actual pain and suffering ); Weber v. Sec’y of Health & Human Servs.
, No. 17

- 0399V, 2019 WL 2521540 (Fed. Cl. Spec. Mstr. Apr. 9, 2019) (awarding $85,000.00 for actual pain and suffering and $1,027.83 for actual unreimbursable expenses); Garrett v. Sec’y of Health & Human Servs. , N o. 18

- 0490V, 2019 WL 2462953 (Fed. Cl. Spec. Mstr. Apr. 8, 2019) (awarding $70,000.00 for actual pain and suffering); Attig v. Sec’y of Health & Human Servs.
, No. 17

- 1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19, 2019) (awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable medical expenses); Dirksen , 2018 WL 6293201 (awarding $85,000.00 for pain and suffering and $1,784.56 in unreimbursable medical expenses); Kim v. Sec’y of Health & Human Servs. , No. 17

- 0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable medical expenses); Knauss , 2018 WL 3432906 (awarding $60,000.00 for pain

an d suffering and $170.00 in unreimbursa ble medical expenses); Marino , 2018 WL 2224736 (awarding $75,000.00 for pain and suffering and $88.88 in unreimbursable medical expenses); Desrosiers v. Sec’y of Health & Human Servs. , No. 16

- 0224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept. 19, 2017) (aw arding $85,000.00 for pain and suffering and $336.20 in past unreimbursable medical expenses). “good” pro gnosis, a lbeit in some inst ances with some residual pain. Petitioners in these c ases had mild to moderate limitations in range o f motion and MRI im aging li kewise showe d evidence of mild to moderate pathology suc h as tendinosis and bursitis. The duration of injury ranged from six to twenty-nine months and, on average
, these pe titioners experienced approximately fourteen months of pain.
Significant pain was reported in these c ases for up to eight months. However, in approximately ha lf of th e c ases, these p etitioners subjectively rated their pain as six or below on

a ten -point sc ale. Petitioners who reported pain in the upper end of the ten -point sc ale generally suffered pain at this level for thre e mont hs or le ss. Slightly less than one-half were administered one to two cortisone injections. Most of these pe titioners pursued physical ther apy for t wo months or less and none had any sur gery. The p etitioners in Schandel, Garrett, a nd Weber attende d physical therapy from almost four to five months, but most of the physical therapy in Weber focused on c onditions unrelated to the pe titioner’s SIRVA. Severa l of these c ases (Goring
, Lucarelli, Kent
, Knauss, Marino, Kim, an d Dirksen) inc luded a de lay in seeking treatment. These d elay s ranged from abo ut forty-two days in Kim to over s ix mon ths i n Marino.
Additionally, in eight prior SPU cases, the petitioner wa s awarded compensation limited to past pain and suffering above the median proffered SIRVA a ward. These a wards have ranged12

20 These cases are: Nute v. Sec’y of Health & Human Servs. , No. 18

- 0140V, 2019 WL 6125008 (Fed. Cl. Spec. Mstr. Sept. 6, 2019) (awarding $125,000.00 for pain and suffering); Kelley v. Sec’y of Health & Human Servs. , No. 17

- 2054V, 2019 WL 5555648 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (awarding $120,000.00 for pain and suffering and $4,289.05 in unreimbursable medical expenses); Wallace v. Sec’y of Health & Human Servs

. , No. 16

- 1472V, 2019 WL 4458393 (Fed. Cl. Spec. Mstr. June 27, 2019) (awarding $125,000.00 for pain and suffering and $1,219.47 in unreimbursable medical expenses); Reed v. Sec’y of Health & Human Servs. , No. 16

- 1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr . Feb. 1, 2019) (awarding $160,000.00 for pain and suffering and $4,931.06 in unreimbursable medical expenses); Knudson v. Sec’y of Health & Human Servs. , No. 17

- 1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $305.07 in unreimbursable medical expenses); Cooper v. Sec’y of Health & Human Servs. , No. 16

- 1387V, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $3,642.33 in unreimbursable medical expe nses); Dobbins v. Sec’y of Health & Human Servs. , No. 16

- 0854V, 2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for pain and suffering and $3,143.80 in unreimbursable medical expenses); Collado v. Sec’y of Health & Human Servs.
, No. 17

- 0225V, 2018 WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and suffering and $772.53 in unreimbursable medical expenses).

21 In Reed , MRI showed edema in the infraspintaus tendon of the right shoulder with a possible tendon tear and a small bone bruise of the posterior humeral head. In Dobbins , MRI showed a full

- thickness partial tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial thickness tear of the tendon, tear of t he posterior aspects of the inferior glenohumeral ligament, and moderate sized joint effusion with synovitis and possible small loose bodies. In Collado , MRI showed a partial bursal surface tear of the infraspinatus and of the supraspinatus. In Knudson , MRI showed mild longitudinally oriented partial

- thickness tear of the infraspinatus tendon, mild supraspinatus and infraspinatus tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the posterior

- superior

- lateral aspec t of the humeral head adjacent to the infraspinatus tendon insertion site, and minimal subacromial

- subdeltoid bursitis. from $110,000.00 to $160,000.00. 2 0 Like those in the pre ceding group, pro gnosis was “good.” However, as compared to those petitioners receiving a b elow-media n award, these c ases were characterized either by a longer duration of inj ury or by the nee d for sur gical repair. Seven out of eight underwent some for m of shoulder sur gery while the fif th (Cooper) experienced two full years of p ain and suffering, eight months of w hich were considered significant, while se eking extended conservative tr eatment. On the w hole, MRI im aging in these c ases also showed more significant findings. In seven out of eight case s, MRI im aging showe d possible evidence of partial tearing. 21 No MRI study wa s performed in the Cooper case.
During tr eatment, each of these pe titioners subjectively r ated their p ain within the uppe r half of a ten -point pa in scale a nd all e xperience d moderate to severe li mitations in range o f motion. Moreover, these pe titioners tended to seek treatment of their inj uries more im mediately. Time to first treatment range d from five d ays to forty-five days. Duration of physical therapy ranged from one to twenty-eight months and six out of the e ight had cortisone inj ections.13

V. APPROPRIATE COMPENSATION IN THIS SIRVA CASE

In this case, awar eness 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 h er awareness of h er injury. Therefore, the undersigned’s analysis will focus principally on the severity and duration of petitioner’s injury.

T he medical records establish that petitioner had immediate pain on receipt of the vaccine on October 30, 2015
, and that she had p ain at night, difficulty sleeping
, and weakness. Her pain worsened in November and in January 2016, she had decreased range of motion. On March 22, 2016, she reported debilitating pain. When she saw Dr. Tan on April 6, 2016, petitioner reported difficul ty reaching overhead, limited range of motion, and she demonstrated impingement symptoms . She required a cortisone injection for treatment. On May 25, 2016, petitioner described her pain as “severe and constant.” When seen by a physical therapist on Jun e 1, 2016, petitioner had moderate to severe loss of function, severe stiffness, pain, weakness, and difficulty driving. Her range of motion was significantly reduced. She had severe difficulties with activities of daily living. One of the barriers to p rogress noted by the physical therapist was the severity of petitioner’s pain. Petitioner attended four physical therapy sessions. On June 6, 2016, she reported pain 5/10, with an episode of severe pain at 10/10. On June 9, 2016, petitioner reported “sh arp and stabbing” pain with “constant throbbing.” She was unable to continue physical therapy due to financial concerns and the costs of copays.

Petitioner did not seek medical treatment for her shoulder after June 2016. Over two years later, on Octob er 2, 2018, Dr. Yaros documented that petitioner refused recommended vaccines because of prolonged arm pain she had experienced after her previous flu vaccine. Other than Dr. Yaros’ note , th ere was no reference to shoulder pain in petitioner’s 2017 and 2018 medical records

.

22 These cases are: Dhanoa v. Sec’y of Health & Human Servs

. , No. 15

- 1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y of Health & Human Servs. , No. 16

- 0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 2 0, 2019) (awarding $130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for projected pain and suffering, and $7,101.98 for past unreimbursable medical expenses); Hooper v. Sec’y of Health & Human Servs. , No. 17

- 0 012V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding $185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years for projected pain and suffering, $37,921.48 for lost wages). In three prio r SPU SIRVA cases, the petitioner was awarded compensation for both past and future pain and suffering. 2 2 In two of those c ases (Hooper a nd Binette ), petitioners experienced moderate to severe li mitations in range of motion and moderate to severe pa in. The petitioner in Hooper underwent surgery while the petitione r in Binette wa s dee med to not be a candidate fo r surgery foll owing a n arthrogram. Despite sig nificant physical therapy (a nd surgery in Hooper), medical opinions indi cated that their disability would be pe rmanent.14

The medic al rec ords establish that petitioner suff ered a mode rately se vere SIRVA inj ury for a pproximately eig ht months, with moderate pain tha t wa s severe with certa in movements and significantly de creased range o f motion. Other tha n petitioner’s testimony
, there is no e vidence that she c ontinued to experience se vere lev els of pain beyond June 2016. As previously h eld by the Federal Circuit, it is appropriate for a spe c ial master to give greater w eight to evidence contained in medical records created closer in time to the vaccination. Curcuras v. Sec’y of Health & Human Servs.
, 993 F.2d 1525, 1528 (Fed. Cir. 1993)

. Medical records are the most reliable evidence about a petitioner’s medical condition and the e ffect it has on daily li fe. Shapiro v. Sec’y o f Health & Huma n Servs., 101 Fed. Cl. 532, 537- 38 (2011) (“ There is little doubt that the de cisional law in the vaccine area f avors medical records created contemporaneously with the events they de scribe over subsequent recollections.”) The pa ucity of relevant medical records in this case lea ves the valuation of p etitioner’ s pain and suffering challenging. See, e.g., Marino, 2018 WL 2224736 , a t *8.

The unde rsigned has reviewed all of the cases cited by both petitioner a nd respondent to support their re spective p ositions on the appropriate amount of an awa rd for pain and suffering. Each case is very fact specific a nd no single decision or award of compensation necessarily accounts for th e spe cific circumstances in this case. The Knauss
, Garrett, a nd Marino cases provide a fr ame of reference for d amages here.
For example, t he se verity a nd duration of pe titioner’s pain and suffering is similar to that suffered by the petitioner in Garrett, who was awarded $70,000.00 for p a in and suffering. Garrett, 2019 WL 24629 53, *1. I n Garrett, the medica l rec ords established that petitioner had a moderately se vere S IRVA for six mont hs, wit h sharp and stabbing pa in that worsened with movement. Id. at *8. However, in Garrett , petitioner’s pain at rest was mild or non -existent, while Ms. Sherbine descr ibed a pe riod of consta nt pain. Also, Ms. Sherbine had extreme pain,

ra ted 10/10, while in Garrett, the petitioner ’s records documented pain at the mi lder e nd of the pain scale. Further, in Garrett, the petitioner ha d good range of motion throughout his injury, but due to his SIRVA, he was unable to play b asketball most , if not all, of his j unior year of high

sc hool. Id. at *8. The f

act that he was unable to play hi gh school basketball was a fa ctor that increased the value of his pain and suffering a ward. Id. at *8, *10.

Ms. Sherbine ’s pain somewhat resembles that of the pe titioner in Marino
, who was awarded $75,000.00, but there is a significant difference in the du ration of p ain. Marino, 2018 WL 2224 736, at *8-9. In Marino, the petitioner had documented pain and limitations that continued for two years after vacc ination. Id. a t *8. Here, there are no medical records to substantiate that petitioner ha d severe pa in after June 2016.

There are othe r factors that make thi s case sim ila r to Knauss, where pe titioner was awarded $60,000.00. Knauss, 2018 WL 3432906, a t *1. Like Ms. Sherbine, the petitioner in Knauss delayed seeking t reatme nt for his injury, but then he ha d three mont hs of continuous treatment and attende d twenty-three ph ysical therapy sessions. Additionally, Mr. Knauss had a cortisone injection approximately one yea r after vaccination. Id. a t *4. M s . Sherbine’s pain levels exceeded those experienced by Mr. Knauss, who cited pain levels of 1/10. Also, Ms. Sherbine’s range of motion limitations we re more pron ounced.15

VI. CONCLUSION

In light of all of the above, and in view of the submitted evidence, including the medical records, affidavits, credible witness testimony, and R uling
, the undersigned finds that $70,000 .00 represents an appropriate amount of compensation for petitioner’s actual pain and suffering.

In addition, the undersigned finds that petitioner is entitled to compensation for $269.32 in past unreimbursed medical expenses.

The undersigned awards petitioner a lump sum payment of $70,269.32 in the form of a check made payable to petitioner , Teresa Sherbine. This amount represents compensation for all damages that are available under §15(a).

The clerk of court is directed to enter judgment in accordance with this decision. 23

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

23 Pursuant to Vaccine Rule 11 (a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. The e vidence here does not support a c laim for fut ure pa in and suffering. While a t the time of the hearing, petitioner testified that she is unable to sleep on her injured a rm, and must be careful in picking up items to avoid dropping the m, she did not c omplain of ongoing p ain. Further, petitioner’s medical records do not evidence tre atment since J une 2016, a nd no health

care p rovider has opine d that the petitioner has a p ermanent injury.
A petitioner who seeks more medic a l care ha s not necessarily experience d a g reater degree o f suffering than one who seeks le ss care

. Individuals have diff ering lev els of pain tolerance and different thresholds for se eking m edical care a nd treatment. However, the undersigned is required to decide this c ase ba se d on the evidence in the re cord. A petitioner who has sought more medic a l care will ha ve more contemporaneous medical records documenting his or her pa in and suffering. In this case, there is little c ontemporaneous documentation demonstrating the condition of petitioner’s shoulder over time, the level of pain that she experienced, and the e ffect the pa in and symptoms had on her daily li fe. Ne vertheless, the undersigned recognizes that petitioner suffered a painful injury that affected her life in many aspects and caused suffering a nd distress.

Based on a re view of the entire re cord a nd consideration of the facts and circumstances presented here
, and the other c ases cited by the parties, the undersigned finds that $70,000.00 is an appropriate award fo r petitioner’s actual pain and suffering.