In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-0277V

UNPUBLISHED

AMY L. CATES,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: June 5, 2020

Special Processing Unit (SPU); 

Decision Awarding Damages; Pain 

and Suffering; Influenza (Flu) 

Vaccine; Shoulder Injury Related to 

Vaccine Administration (SIRVA)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On February 22, 2018, Amy L. Cates filed a petition for compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2(the 

“Vaccine Act”). Petitioner alleges that she suffered right shoulder injuries related to 

vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received 

on November 10, 2016. The case was assigned to the Special Processing Unit (“SPU”)

of the Office of Special Masters. 

For the reasons stated at the May 29, 2020 damages hearing and as set forth

below, I find that Petitioner is entitled to an award of damages in the amount $108,000.00,

all of which is for past pain and suffering (as Petitioner requests no other damage 

components).

 

1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it 

on the United States Court of Federal Claims' website 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. In accordance with 

Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the 

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the 

identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease 

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. 

§ 300aa (2012).
2

I. Relevant Procedural History

On June 5, 2019, Respondent filed a Rule 4(c) Report conceding that Petitioner’s 

injury was consistent with a SIRVA as defined on the Vaccine Injury Table (ECF No. 31). 

Thus, Respondent agreed that Petitioner was entitled to compensation. For 

approximately two months thereafter, the parties attempted to informally resolve the issue 

of damages. On August 19, 2019, however, Petitioner filed a status report indicating that 

the parties were in disagreement as to the amount of compensation to be awarded and 

would like to resolve this by briefing (ECF No. 37). 

On November 6, 2019, Petitioner filed a damages brief requesting $130,000.00 in 

damages for pain and suffering (ECF No. 43). Respondent filed a brief in response on 

December 11, 2019 proposing an award of $90,000.00 (ECF No. 44). I subsequently 

informed the parties that this matter was appropriate for an expedited hearing and ruling 

based upon all evidence filed to date, including the parties’ briefing. ECF No. 45. On 

March 19, 2020, the parties indicated in a joint status report they were amenable to an 

expedited hearing and ruling, and the case was scheduled to be heard on May 29, 2020. 

See Joint Status Report, filed Mar. 19, 2020, at *1 (ECF No. 46). 

On May 29, 2020, I held the scheduled damages hearing in this case by telephone. 

Counsel for each party received the opportunity to present arguments in support of their 

position. At the conclusion of the hearing, I announced that I had determined that the

award in this case would be $108,000.00. I informed the parties that a brief written 

decision would follow, summarizing my conclusions and oral decision. 3

II. Legal Standard

Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and 

projected pain and suffering and emotional distress from the vaccine-related injury, an 

award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover 

“actual unreimbursable expenses incurred before the date of judgment award such 

expenses which (i) resulted from the vaccine-related injury for which petitioner seeks 

compensation, (ii) were incurred by or on behalf of the person who suffered such injury, 

and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined 

to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof 

with respect to each element of compensation requested. Brewer v. Sec’y of Health & 

Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 

1996). 

 

3 Although the written transcript of the hearing has not yet been filed in this case, it is incorporated by 

reference herein.
3

There is no mathematic formula for assigning a monetary value to a person’s pain 

and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-

1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for 

emotional distress are inherently subjective and cannot be determined by using a 

mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V, 

1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and 

suffering is inherently a subjective evaluation”). Factors to be considered when 

determining an award for pain and suffering include: 1) awareness of the injury; 2) severity 

of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting 

McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. 

Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 

(Fed. Cir. 1995)). 

I may also consider prior pain and suffering awards to aid my resolution of the 

appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 

34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is 

nothing improper in the chief special master’s decision to refer to damages for pain and 

suffering awarded in other cases as an aid in determining the proper amount of damages 

in this case.”). And, of course, I may rely on my own experience (along with my 

predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of 

Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress 

contemplated the special masters would use their accumulated expertise in the field of 

vaccine injuries to judge the merits of individual claims).

Although pain and suffering in the past was often determined based on a 

continuum, as Respondent argues, that practice was cast into doubt by the Court several 

years ago. In Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013), Judge 

Merrow rejected a special master’s approach of awarding compensation for pain and 

suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap. Judge 

Merrow maintained that do so resulted in “the forcing of all suffering awards into a global 

comparative scale in which the individual petitioner’s suffering is compared to the most 

extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merrow assessed 

pain and suffering by looking to the record evidence, prior pain and suffering awards 

within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine 

Program. Id. at 595. Under this alternative approach, the statutory cap merely cuts off 

 

4 From July 2014 until September 2015, the 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 former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, 

the majority of SPU cases were reassigned to me as the current Chief Special Master. 
4

higher pain and suffering awards – it does not shrink the magnitude of all possible awards 

as falling within a spectrum that ends at the cap.

III. Appropriate Compensation for Petitioner’s Pain and Suffering

In this case, awareness of the injury is not disputed. The record reflects that at all 

times petitioner was a competent adult with no impairments that would impact her 

awareness of her injury. Therefore, I analyze principally the severity and duration of 

petitioner’s injury.

When performing the analysis necessary to render a decision on damages, I have 

reviewed the record as a whole, including the medical records and affidavits filed, plus all 

assertions made by the parties in written documents and at the May 29th expedited 

hearing. I have also considered prior awards for pain and suffering in both SPU and nonSPU SIRVA cases and rely upon my experience adjudicating these cases.

5 However, I 

base my ultimate determination on the specific circumstances of this case.

As the overall record establishes, Petitioner first sought treatment for her shoulder 

injury on November 21, 2016 – eleven days after receipt of the flu vaccine. Exs. 1 at 1, 2 

at 2-4. At this visit, she reported shoulder pain that started the same day as her flu shot, 

and causing pain significant enough to wake her at night. Ex. 2 at 2-4. A week later, on 

November 28, 2016, Petitioner received a steroid injection and was referred for 

occupational therapy. Id. at 7-9. The steroid injection provided only three days of pain 

relief. Id. at 15. Accordingly, there is persuasive and ample evidence that Petitioner’s 

injury was initially severe and noticeable.

Petitioner subsequently attended nine (9) occupational therapy sessions between 

November 29, 2016 and December 28, 2016. Ex. 3 at 25-43. An MRI she obtained in this 

period showed fluid in the subacromial bursa but no rotator cuff tear. Id. at 48. Then, in 

January 2017, Petitioner underwent right shoulder arthroscopic subacromial bursectomy 

and right shoulder arthroscopic subacromial decompression under general anesthesia. 

Ex. 2 at 28-29. Following surgery, Petitioner underwent an additional 19 occupational 

therapy sessions between January 23, 2017 and March 29, 2017. Ex. 3 at 66-103. 

 

5 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a 

brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of 

Health & Human Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. 

Sec’y of Health & Human Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); 

Smallwood v. Sec’y of Health & Human Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 

29, 2020). 
5

Petitioner thereafter continued to follow up with her orthopedic care provider after 

surgery, attending seven (7) appointments from February 1, 2017 to June 19, 2017. Ex.

2 at 31-68. Throughout this time, Petitioner maintains, the injury interfered with her sleep, 

negatively impacted her job as a real estate agent, and limited her ability to perform daily 

activities and recreational activities such as bowling and softball with her children, and 

that her injuries persist to some extent today. See generally Exs. 5 and 9.

As I informed the parties during the expedited hearing, there is agreement that 

Petitioner will receive an award for pain and suffering, leaving only the amount to be 

determined. Setting an award is more of an art than a science, and in arriving at a number 

I relied on my expertise and experience in the Vaccine Program, as well as prior reasoned 

decisions. Both parties presented rational grounds for their requested award amounts, 

setting a range of outcomes. Although it is tempting to split the difference and award the 

median between the parties’ positions, I have attempted to arrive at a just result based 

on the evidence presented (although I acknowledge that the range set by the parties 

correctly framed the possible appropriate outcomes herein).

During argument, Respondent asserted that pain and suffering awards outside the 

Program should be considered (and noted they tend to be lower in magnitude). However, 

I find that awards issued within the Program are most persuasive. It is important to bear 

in mind the policy purposes of the Program – that it is no-fault and is intended to be 

generous in many regards, resulting in a slightly different scale (that admittedly may 

produce higher award values than the non-Program comparables pointed to by 

Respondent). Thus, other reasoned decisions in the Vaccine Program provide the most 

useful guidance in reaching an award amount in this case.6

In this case, the record persuasively establishes that Petitioner sought medical 

assistance right away, and underwent surgical intervention fairly early – both points 

supporting a robust award. At the same time, however, this case is overall not as severe 

as others seen in SPU, and thus is not a case where a higher award is justified. The cases 

Petitioner cited (Dobbins, Knudson, and Collado)

7 are factually comparable, but all are a 

bit higher in total award than what is justified in this case. 

 

6 Respondent also cites the decision in Graves. Although Graves is not binding, I find it persuasively 

establishes that special masters should not look at the statutory cap on pain and suffering as a continuum,

and strive to fit all cases into that based on relative severity, but instead that they should evaluate in each 

case what the amount should be, based on the case’s merits, before applying the cap.

7 The pain and suffering award in Dobbins v. Sec’y of Health & Human Servs., No. 16-0854V, 2018 WL 

4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) was $125,000.00 for pain and suffering. In Knudson v. Sec’y 

of Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl. Spec. Mstr. Nov. 7, 2018), the pain 

and suffering award was $110,000.00. In Collado v. Sec’y of Health & Human Servs., No. 17-0225V, 2018 

WL 3433352 (Fed. Cl. Spec. Mstr. June 6, 2018) the pain and suffering award was $120,000.00. 
6

Rather, the case that is most comparable to this case (albeit on the low end) is 

Selling.

8

In Selling, Special Master Oler distinguished Knudson and Collado because the 

Petitioners in those cases had undergone open and invasive surgeries, while the 

Petitioner in Selling had not. Selling, 2019 WL 3425224, at *6. By contrast, the surgery in 

this case was more like that in Knudson and Collado. Thus, I find that the award in this 

case should be somewhat higher than Selling, but lower than Knudson and Collado. 

IV. Conclusion

For all of the reasons discussed above and based on consideration of the record 

as a whole, I find that $108,000.00 represents a fair and appropriate amount of 

compensation for Petitioner’s actual pain and suffering.

9

Accordingly, I award Petitioner a lump sum payment of $108,000.00 in the form 

of a check payable to Petitioner. This amount represents compensation for all damages 

that would be available under Section 15(a). 

The clerk of the court is directed to enter judgment in accordance with this 

decision.10

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

 

8 The pain and suffering award in Selling v. Sec’y of Health & Human Servs., No. 16-0588V, 2019 WL 

3425224 (Fed. Cl. Spec. Mstr. May 2, 2019) was $105,000.00. 

9 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to 

net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-0194V, 

1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human 

Servs., 32 F.3d 552 (Fed. Cir. 1994)).

10 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.