Danielson v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1878V
UNPUBLISHED
MICHELLE DANIELSON, Chief Special Master Corcoran
Petitioner, Filed: December 29, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 6, 2018, Michelle Danielson 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”)
vaccine on October 10, 2017. Petition at 1, ¶¶ 1, 8. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $119,443.14, representing $110,000.00 for her past pain and
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).
suffering, $7,922.223 for her future pain and suffering, and $1,520.92 for her
unreimbursed out-of-pocket expenses.
I. Relevant Procedural History
After the case’s filing, from November 2019 through May 2020, the parties
attempted to reach an informal settlement in this case. After reaching an impasse,
Respondent agreed to concede entitlement so that I could determine the appropriate
amount of damages based upon written briefs and oral arguments at an expedited
“motions day” hearing. See Rule 4 Order, issued June 2, 2020, ECF No. 28. Thus, on
July 17, 2020, Respondent filed a Rule 4(c) Report conceding that Petitioner’s injury met
the Table definition for SIRVA (ECF No. 29), and I issued a Ruling on Entitlement finding
Petitioner entitled to compensation (ECF No. 30). The parties completed their briefing by
December 4, 2020. At the conclusion of the expedited hearing on December 11, 2020,4 I
orally informed the parties of my determination, which is more formally set forth herein.
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).
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
3
As required by the Vaccine Act, the amount I am awarding for Petitioner’s future pain and suffering, a
yearly award of $250 for the remainder of her life, has been reduced to its net present value. Section
15(f)(4)(A).
4
An official recording of the proceeding was taken by court reporter, and a link to instructions on the court’s
website detailing how to order a certified transcript or audio recording of the proceeding can be found in the
minute entries for this proceeding. Minute Entry, dated Dec. 11, 2020; see also
www.uscfc.uscourts.gov/trans (last visited Dec. 11, 2020).
2
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.5 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).
III. Appropriate Compensation for Petitioner’s Pain and Suffering
Petitioner requested $140,000.00 for her past pain and suffering, $1,694.80 for her
past out-of-pocket expenses,6 and $1,000.00 per year for her future pain and suffering.
Petitioner’s Brief on Damages (“Pet. Brief”) at 11. She alleges that she suffered intense
pain within hours of vaccination which continued at a level described as moderate to
severe for more than three years. Id. at 13-14. Describing the treatment she received,
Petitioner claims she obtained no “lasting relief” and has exhausted all treatment options.
Id. at 16.
5
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. In early October 2019, the majority of SPU cases were
reassigned to me as the current Chief Special Master.
6
At the expedited hearing, Petitioner sought to include an additional $150.00 from an expense recently
incurred. I instructed Petitioner to forward the documentation related to this expense to Respondent after
the hearing to determine if Respondent had any objection to this additional amount. On December 14, 2020,
Petitioner’s counsel informed me that the parties had been unable to reach an agreement regarding this
additional expense. See Informal Remark, dated Dec. 14, 2020. Petitioner’s counsel initially indicated she
would be filing the documentation related to this expense, along with an explanation of the parties’ positions.
Id. In a subsequent email, Petitioner’s counsel indicated Petitioner had decided to forego any compensation
for this expense. See Informal Remark, dated Dec. 29, 2020.
3
In reaction, Respondent maintained Petitioner should be awarded only
$100,000.00 for her past pain and suffering and $1,347.03 for her past out-of-pocket
expenses, with no future pain and suffering component. Respondent’s Brief on Damages
(“Res. Brief”). Id. at 1, 19. He also challenged chiropractic co-pays totaling $347.77, as
they were related to spinal adjustments received both prior to and after vaccination, rather
than Petitioner’s SIRVA. Id. at 1, 1 n.1, 19. To support his arguments, Respondent cited
the more than four months which passed before Petitioner sought treatment for her
SIRVA (though she mentioned her pain during an earlier chiropractic appointment, id. at
18 n.7), the lack of evidence showing Petitioner required prescription pain medication
other than for a limited time period during 2018, the fact that Petitioner attended only
limited physical therapy (“PT”) and most of her chiropractic appointments were for cervical
and thoracic
--(“CT”) pain, and the lack of evidence to support Petitioner’s claim that her
SIRVA has interfered with her employment as a nurse. Id. at 8-19.
The medical records in this case establish that Petitioner was seen by her
chiropractor for CT pain both prior to and after vaccination. See generally Exhibit 2. For
example, in this one-month timeframe before and after receipt of the relevant vaccine,
Petitioner was treated for this pain on nine occasions, but mentioned her left shoulder
pain only once during the second of five appointments attended post-vaccination. Id. at
14-33. Similarly, Petitioner failed to mention her left shoulder pain during a visit to her
primary care provider (“PCP”) for numerous other conditions, such as insomnia and
anxiety, on November 29, 2017, approximately one and a half months after vaccination.
Exhibit 3 at 4-5. Petitioner did not seek medical care for her SIRVA until seen by her PCP
on February 23, 2018, more than four months after vaccination. Id. at 6-7. Thus, while I
accept that Petitioner’s left shoulder pain began immediately (as noted by the social
media post she provided, Exhibit 12 at 1) for purposes of determining entitlement under
the Table, the evidence does not support her claims that this initial pain was especially
severe.
The medical records support Petitioner’s claim of more significant pain beginning
in early 2018, when she sought treatment from her PCP and then an orthopedist during
late March through early May 2018. Exhibits 3 at 6-7; 4 at 4-7. While treated by her
orthopedist, Petitioner received two injections and underwent an MRI which showed
evidence of bursitis and an injury to her bone as she claimed. Exhibit 4 at 4-12. For the
first time since late October 2017, Petitioner mentioned her left shoulder pain during a
July 2018 visit to her chiropractor. Exhibit 2 at 4-5. When first evaluated for PT in August
2018, she reported significant levels of pain, eight and nine out of ten, with rest and activity
respectively. Exhibit 5 at 3. Petitioner’s orthopedist described her condition as unchanged
during a September 17, 2018 visit. Exhibit 19.
4
From July through September 2019, Petitioner sought chiropractic care for her
back, neck, and left shoulder pain from another clinic. The records from those visits show
that she received some good pain relief which allowed her to engage in activities such as
mowing the yard and kayaking, followed by some “flare-ups” of pain. E.g., Exhibit 11 at
3-4. Petitioner attended 11 PT sessions during October through November 2019. Exhibit
16. At a session on November 12, 2019, Petitioner was reported to be happy with her
progress. Id. at 6. Nine days later, she reported pain and inquired about other treatments,
a nerve block. Id. at 8. Noted to be more independent with her home exercise program,
Petitioner was discharged from PT in May 2020. Id. at 16. She continued to complain of
left shoulder pain when visiting her chiropractor. Exhibit 17. And, during a visit with her
PCP on October 6, 2020, Petitioner reported her level of pain as five out of ten. Exhibit
18 at 1.
When seen by a second orthopedist in October and November 2018, Petitioner’s
pain level had improved to five to ten out of ten. Exhibit 13 at 4-6. A second MRI showed
continued bursitis, but no further evidence of the bone injury noted in her first MRI. Id. at
7-10. On November 1, 2018, Petitioner emailed her prior orthopedist, informing him that
she was “still dealing with a strong amount of pain and unable to carry out normal daily
routines.” Exhibit 10 at 8. She asked about further treatment, specifying mentioning
surgery to scrape out any inflamed tissue. Id. Comparing Petitioner’s two MRIs, the
orthopedist indicated he saw “slightly more soft tissue inflammation compared to the prior
MRI and slightly less bone irritation.” Id. at 7. Noting that he was not a surgeon, the
orthopedist encouraged her to continue her current treatment with the orthopedic surgeon
she was seeing and suggested that she pursue consultations at other clinics if unable to
obtain relief. He added that he had “exhausted conservative treatment options that have
helped past patients.” Id. (emphasis added).
After receiving a third injection on November 29, 2018, Petitioner appears to have
obtained additional relief. Exhibit 10 at 10. Her chiropractic records illustrate this
improvement, revealing continued complaints of both CT and left arm pain in November
2018 and a mention of CT pain only during a December 4, 2018 visit. Exhibit 14 at 1-5.
During a January 3, 2019 chiropractic visit, Petitioner states that her left shoulder pain
was improving until she experienced a difficult hysterectomy in late December 2019. Id.
at 6. Records from additional chiropractic visits in January through April show treatment
mainly for cervical and neck pain. Id. at 6-16. Petitioner does not specifically mention her
left shoulder pain again until May 31, 2019. Id. at 17. Complaining of CT, lower back, and
left shoulder pain, Petitioner described her shoulder pain as stabbing with certain
movements. She added that she obtained mild temporary relief “using ice, heat, analgesic
ribs, and self massag[e].” Id. Petitioner also complained of left shoulder pain to her PCP
on June 17, 2019, indicating “some type” of daily pain. Exhibit 10 at 3. However, she did
not describe the level of her pain.
5
Relying on the aforementioned record, Petitioner argues that her circumstances
closely resemble those experienced by the petitioner in Binette,7 who was awarded
$130,000.00 and $1,000.00 per year for past and future pain and suffering, respectively.
She further contends her experiences were more severe than those faced by the
petitioner in Cooper,8 who was awarded $110,000.00 for past pain and suffering. Pet.
Brief at 15-18. Respondent counters that the Binette petitioner received more consistent
orthopedic care, and provided more persuasive evidence of the permanency of her
condition. Res. Brief at 14-16.
I find that Petitioner’s SIRVA more closely resembles the injury suffered by the
Cooper petitioner – making the past pain and suffering award from that case the better
comparable herein. Ms. Danielson, like the Cooper petitioner, experienced prior and
continued pain in areas other than the left shoulder where she received her vaccination.
Cooper, 2018 WL 6288181, at *3. In contrast, the Petitioner in Binette had no reports of
pain prior to suffering her SIRVA injury. Additionally, the Binette petitioner received more
immediate and consistent treatment, suggesting a more pronounced injury. Binette, 2019
WL 1552620, at *3-8. And Petitioner received only three injections compared to the five
administered to the Binette petitioner. Id. at *4-8, 13. Petitioner correctly observes that
the petitioner in Cooper refused any injection, but fails to note that the Cooper petitioner
participated in nearly twice the number of PT sessions over a much long period of time,
two years. Cooper, 2018 WL 6288181, at *3-8.
There also are similarities between Petitioner’s case and the SIRVA Injury suffered
by the petitioner in Dhanoa,9 who was awarded only $85,000.00 for past pain and
suffering. However, I recognize the Dhanoa petitioner suffered more moderate levels pain
and showed greater improvement with treatment. 2018 WL 1221922, at *6. I thus find this
comparable case of less value in arriving at a pain and suffering award in this case.
Regarding Petitioner’s request for a future pain and suffering component, I find the
evidence Petitioner advances to show the continued effects of her SIRVA injury is not as
compelling as that offered by the Binette petitioner. In particular, the medical records
show that while followed by several setbacks, Petitioner obtained relief from treatment,
such as the third injection she received and chiropractic and PT sessions she attended.
As evidenced by the differences in Petitioner’s MRIs, her bone injury was improving.
7
Binette v. Sec’y of Health & Human Servs., No. 16-0731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. July
8, 2019).
8
Cooper v. Sec’y of Health & Human Servs., No. 16-1387, 2018 WL 6288181 (Fed. Cl. Spec. Mstr. Nov.
7, 2018).
9
Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb.
1, 2018).
6
However, while not as definitive as the statement provided to the petitioner in Binette,
Petitioner was told by a prior orthopedist in November 2018 that she had exhausted all
conservative treatment options. Additionally, Petitioner continued to report pain with
movement the following year, in 2019. Thus, I will award compensation for Petitioner’s
future pain and suffering, but at a lower amount than that requested - $250 per year,
rather than $1,000 per year. This sum will also be reduced to net present value, utilizing
the multi-pronged approached I employed in prior cases,10 based on a future life
expectancy of approximately 48 additional years.
Finally, there is the issue of calculating the amount of prior-incurred out-of-pocket
expenses. While the chiropractic care Petitioner received was more properly related to
the CT pain she experienced both before and after vaccination, she was also treated for
her left shoulder pain during some sessions as well – meaning that not all of these costs
are properly attributed to the SIRVA injury Petitioner experienced. Thus, I will compensate
Petitioner for approximately one-half of this amount, or $173.89.
IV. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $110,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past pain and suffering. I also find that Petitioner is
entitled to $1,520.92 for her past expenses. For her future pain and suffering, I find
that an award of $250 per year for life is a fair and appropriate amount of
compensation, for a total award of $12,000.00 - reduced to its net present value of
$7,922.22.
I thus award Petitioner a lump sum payment of $119,443.14, representing
$110,000.00 for her actual pain and suffering, $7,922.22 for her projected pain and
suffering, and $1,520.92 for her actual unreimbursable expenses in the form of a
check payable to Petitioner. This amount represents compensation for all damages that
would be available under Section 15(a).
10
A one percent discount rate is used for the first fifteen years, with a two percent discount rate used for
any additional years. Curri v. Sec’y of Health & Human Servs., No. 17-0432V, 2018 WL 6273562, at *7
(Fed. Cl. Spec. Mstr. Oct. 31, 2018). Using the life expectancy calculator found on the Social Security
Administration’s website, Petitioner is expected to live another 47.6 years. https://www.ssa.gov/cgi-
bin/longevity.cgi (last visited on Dec. 17, 2020). As in Curri, an online present value calculator was used to
perform the appropriate calculations. 2018 WL 6273562, at *7 n.4; see https://financial-
calculators.com/present-value-of-an-annuity-calculator (compounding annually) (last visited Dec. 27,
2020). Utilizing a one percent discount rate for years 1 through 15, the total of $3,750.00 ($250 multiplied
by 15) is reduced to a net present value of $3,466.26. Utilizing a two percent discount rate for years 16
through 48, the total amount of $8,250.00 ($250 multiplied by 33) is reduced to a net present value of
$4,455.96.
7
The clerk of the court is directed to enter judgment in accordance with this
decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11
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.
8