Bartholomew v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1570V
UNPUBLISHED
KATHLEEN BARTHOLOMEW, Chief Special Master Corcoran
Petitioner, Filed: June 5, 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)
Joseph Pepper, Conway, Homer, P.C., Boston, MA, for petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 10, 2018, Kathleen Bartholomew 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 a left shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination that was
administered on October 3, 2016. Petition at 1-2. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
For the reasons set forth below, and as represented during the May 29, 2020
motions hearing,3 I find that Petitioner is entitled to an award of damages in the amount
$67,000.00, representing compensation for actual pain and suffering.
I. Relevant Procedural History
A year after the case was filed, Respondent filed his Rule 4(c) Report in October
2019 conceding that Ms. Bartholomew was entitled to compensation. Rule 4(c) Report
(ECF No. 21) at 4. In view of Respondent’s position, a ruling on entitlement was entered
finding that Petitioner was entitled to compensation for SIRVA. ECF No. 22. Thereafter,
the parties attempted to informally resolve the issue of damages but reached an impasse
on an appropriate award. ECF No. 26. I ultimately indicated to the parties that I would
resolve their dispute as to damages via a motions hearing, and held that hearing on May
29, 2020.4
The parties argued for damages based on briefing completed prior to the motions
hearing. Thus, on March 12, 2020, Petitioner filed a damages brief requesting that I award
$82,500.00 for past and future pain and suffering. Petitioner’s Memorandum in Support
of Damages at 12. ECF No. 31. Petitioner states that her course of treatment was difficult
and included a cortisone injection, an MRI, and 43 sessions of physical therapy. Id. at 9.
Further, Petitioner argues that her pain was immediate and intense and that her
symptoms interfered with her activities of daily living for eight months. Id.On April 13, 2020, Respondent filed a damages brief proposing a pain and
suffering award of no more than $60,000.00. Respondent’s Brief on Damages (“Res.
Brief”) at 1. ECF No. 34. Respondent argues that Petitioner’s medical records
demonstrate that her SIRVA injury was not severe, required only conservative treatment,
and that she has met all treatment goals. Res. Br. at 5.5
3
See Minute Entry dated May 29, 2020. The transcript of this hearing, which was not yet filed as of the
date of this Decision, is hereby incorporated into this Damages Decision by reference.
4
Order, issued Mar. 26, 2020 (ECF No. 32) at 1. On April 6, 2020, the parties indicated they could
participate in an expedited hearing on May 29, 2020. Joint Status Report, filed April 6, 2020 (ECF No.
33).
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Respondent also discusses several pain and suffering decisions arguing that the degree of severity of the
injuries in those cases, comparatively speaking, was similar to that of Petitioner’s and the awards were
approximately $60,000.00. In addition to discussing prior Vaccine Program Awards, Respondent also
asserts that “the Vaccine Program’s pain and suffering awards in cases primarily or only involving shoulder
injuries are substantially higher than what is typically awarded in the traditional tort system.” Res. Br. at 6.
2
II. Legal Standard
I discussed at length the legal standard to be considered in determining an
appropriate award of pain and suffering, as well as prior SIRVA compensation in SPU
cases in several recent decisions. I fully adopt and hereby incorporate my prior discussion
in sections V and VI of 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).
In sum, 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). 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).
III. Appropriate Compensation for Petitioner’s Pain and Suffering
Pain and suffering is the sole component requested for damages herein, so only
the legal standards bearing on its calculation are relevant. 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 this analysis, I review the record as a whole to include the
medical records and affidavit filed and all assertions made by the parties in written
documents and at the expedited hearing held on May 29, 2020. I have also considered
prior awards for pain and suffering in both SPU and non-SPU SIRVA cases and rely upon
my experience adjudicating these cases. However, I base my determination on the
specific circumstances of this case as set forth herein:
• Ms. Bartholomew received the flu vaccine alleged as causal on October 3,
2016. Exhibit 1 at 1. One week later, on October 10, 2016, Petitioner called her
primary care provider (“PCP””) to complain about soreness to her left arm
following her flu shot. Ex. 7 at 1.
• Petitioner presented to her PCP on November 14, 2016 to follow up on her
October 10, 2016 complaint of left arm soreness. Ex. 2 at 2. She rated her pain
as an eight on a ten-point scale. Id. The PCP noted that Petitioner
demonstrated passive range of motion with difficulty. Id.3
• On November 28, 2016, Petitioner presented to an orthopedist for an
evaluation of her left shoulder pain. Ex. 3 at 13. The orthopedist noted that
Petitioner’s pain was persistent and that she had trouble “using it overhead”
and sleeping at night. Id.• On December 13, 2016, Petitioner underwent an MRI of her left shoulder. Ex.
2 at 31; Ex. 3. At 44. Petitioner’s orthopedist determined that it revealed “some
mild tendinosis, no full-thickness rotator cuff tear . . . [and] some mild AC joint
arthropathy, no appreciable glenohumeral arthropathy.” Ex. 3 at 12.
• Between January 9 and June 6, 2017, Petitioner completed 43 sessions of
physical therapy. Ex. 4. The note documenting her initial evaluation indicates
that Petitioner experienced significant pain with limited movement in her left
shoulder. Id. at 110. Petitioner stated that her pain fluctuated from zero to eight
on a ten-point pain scale. Id.• Petitioner continued to see her orthopedist for her left shoulder. On January 30,
2017, the orthopedist noted that, “[o]verall, she is better.” Ex. 3 at 11. On March
6, 2017, he noted that while Petitioner’s condition had improved, “she still gets
a sharp pain through the anterolateral aspect of her shoulder.” Id. at 9. A steroid
injection was administered in her left shoulder. Id.• Petitioner underwent a physical therapy re-evaluation on April 5, 2017. Ex. 4 at
52. She “denie[d] pain most of the day with the exception of OH [overhead]
reaching, weightbearing into elbow, or forward reaching.” Id. Petitioner
indicated that her pain ranged from four to five on a ten-point scale. Id.• On May 8, 2017, Petitioner presented to her PCP and reported that her
shoulder “doesn’t hurt all the time” and that the cortisone injection helped. Ex.
2 at 1. Petitioner also presented to her orthopedist on this date. Ex. 3 at 2. The
orthopedist confirmed that the cortisone injection had improved her condition,
but noted that Petitioner continued to have “diffuse pain on the left side with
difficulty raising it overhead. She cannot lie comfortably at night.” Id.• Petitioner was discharged from PT on June 6, 2017. Ex. 4 at 1-2. Although she
continued to experience pain with overhead lifting, Petitioner had no functional
limitations. Id. She rated her pain as ranging from one to four on a ten-point
scale. Id.• In an affidavit, signed on October 8, 2018, Petitioner states that the range of
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motion in her left shoulder is “better” and that she is no longer taking
medication. Ex. 8 at 4. She further states that “[o]ccasionally, when I rest my
arm on my desk for too long, my shoulder becomes stiff and achy. This also
happens when I am resting overnight and not actively moving my left shoulder.”
Id.The case record overall establishes that while Petitioner’s pain was severe during
the period immediately following vaccination, her level of discomfort varied during the
subsequent eight months. Although Petitioner described her shoulder pain as an eight on
a ten-point scale during her initial appointment with her PCP on November 14, 2016, by
her January 9, 2017 PT evaluation, she described her pain as fluctuating between zero
and eight. Less than one month later, on January 30, 2017, Petitioner’s orthopedist
indicated she was better, overall.
In the month following Petitioner’s receipt of a cortisone injection on March 6, 2017,
she denied most pain. By June 6, 2017, approximately eight months post-vaccination,
Petitioner was found to have no functional limitations and she rated her pain as ranging
from one to four on a ten-point scale. Nevertheless, while the level of pain Petitioner
experienced was not consistently severe and there was no need for surgical intervention,
Petitioner has experienced some lingering problems. Further, her participation in 43
sessions of physical therapy is significant.
The above-described course is similar to the petitioner in Dagen v. Sec’y of Health
& Human Servs., No. 18-0442V, 2019 WL 7187335, at *10 (Fed. Cl. Spec. Mstr.
November 6, 2019)(awarding $65,000.00 for pain and suffering after finding that the
claimant’s “pain was fairly significant in the first two months post-vaccination, but
progressively eased in the ensuing period, with her movement impairment also largely
(though not totally) improved within seven months of vaccination”); see also Knauss v.
Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 at *7 (Fed. Cl. Spec.
Mstr. May 23, 2018)(awarding $60,000 for pain and suffering following a SIRVA wherein
petitioner sought treatment three months post-vaccination, underwent 15 physical
therapy sessions, received a steroid injection, and ultimately reported a 94 percent
recovery with a pain level at 1.5). I therefore find that a damages award comparable to
these two cases is most warranted, although perhaps slightly higher to account for the
additional PT sessions and slightly increased severity.
IV. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $67,000.00, for her actual pain and suffering in the form of
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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.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 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.
6