VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00012
Package ID: USCOURTS-cofc-1_21-vv-00012
Petitioner: Darcy Cyr
Filed: 2021-01-04
Decided: 2024-03-07
Vaccine: influenza
Vaccination date: 2018-10-30
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 77889

AI-assisted case summary:
Darcy Cyr filed a petition for compensation under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine administered on October 30, 2018. The respondent conceded that Petitioner's injury was consistent with SIRVA and that she had suffered residual effects for more than six months, leading to a ruling on entitlement in her favor. The parties were unable to agree on all damages components, necessitating a hearing. Petitioner sought compensation for pain and suffering, future pain and suffering, unreimbursable expenses, and lost wages. The respondent proposed an award for pain and suffering and unreimbursable expenses, but not for future pain and suffering or lost wages. The court awarded Darcy Cyr $75,000.00 for actual pain and suffering and $2,889.26 for past unreimbursable expenses, totaling $77,889.26. The claim for lost wages was denied as it would have resulted in a double payment. The court found that while Petitioner experienced a moderate SIRVA injury with significant initial pain and ongoing discomfort, the injury did not warrant compensation for future pain and suffering as she had not shown a permanent disability or other extenuating circumstances, and her most recent treatment was over three years prior to the decision.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00012-0
Date issued/filed: 2022-05-23
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/14/2022) regarding 27 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:21-vv-00012-UNJ Document 31 Filed 05/23/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0012V
UNPUBLISHED
DARCY CYR, Chief Special Master Corcoran
Petitioner, Filed: April 14, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Renee J. Gentry, The Law Office of Renee J. Gentry, Washington, DC, for Petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 4, 2021, Darcy Cyr 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine that was administered
to her on October 30, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 13, 2022, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Specifically, Respondent “has concluded that [P]etitioner’s alleged injury is consistent
with SIRVA as defined by the Vaccine Injury Table.” Id. at 4. Respondent further agrees
1 Because this unpublished Ruling 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 Ruling 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).

Case 1:21-vv-00012-UNJ Document 31 Filed 05/23/22 Page 2 of 2
that “[P]etitioner has suffered the residual effects of her condition for more than six
months.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-00012-1
Date issued/filed: 2024-03-07
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 02/06/2024) regarding 45 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:21-vv-00012-UNJ Document 51 Filed 03/07/24 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0012V
UNPUBLISHED
DARCY CYR, Chief Special Master Corcoran
Petitioner, Filed: February 6, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Renee Ja Gentry, The Law Office of Renee J. Gentry, Washington, DC, for Petitioner.
Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 4, 2021, Darcy Cyr 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on
October 30, 2018. Petition at 1. The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters. Although entitlement was conceded, the parties
could not agree on all damages components, so the matter was designated for SPU
“Motions Day,” and argument was heard on January 29, 2024.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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).

Case 1:21-vv-00012-UNJ Document 51 Filed 03/07/24 Page 2 of 10
For the reasons set forth below, and as represented during the hearing,3 I find that
Petitioner is entitled to compensation in the amount $77,889.26, representing
$75,000.00 for actual pain and suffering, plus $2,889.26 for past unreimbursed
expenses.
I. Relevant Procedural History
A little more than a year after the case was filed, Respondent filed his Rule 4(c)
Report in April 2022 conceding that Petitioner was entitled to compensation.
Respondent’s Report at 1. ECF No. 26. In view of Respondent’s position, a Ruling on
Entitlement was entered in Petitioner’s favor. ECF No. 27. Thereafter, the parties
attempted to informally resolve the issue of damages but reached an impasse on an
appropriate award. ECF No. 35. I indicated to the parties that I would resolve their dispute
as to damages via a hearing, which was held on January 29, 2024.4
The parties argued for damages based on briefing completed prior to the motions
hearing. Thus, on January 9, 2023, Petitioner filed a damages brief requesting that I
award (a) $90,000.00 for actual pain and suffering, (b) $500.00/year for future pain and
suffering, (c) $2,889.26 for unreimbursable expense; and (d) $2,327.13 in lost wages.
Petitioner’s Damages Brief (“Brief”) at 2, ECF No. 37.
On March 9, 2023, Respondent filed a damages brief proposing an award of
$70,000.00 for Petitioner’s actual pain and suffering, $2,889.26 for her unreimbursable
expenses (thus accepting Petitioner’s calculation of that component), and no award for
future pain and suffering or lost wages. Respondent’s Damages Brief (“Opp.”) at 1, 7-9.
ECF No. 38. Petitioner filed her reply on March 26, 2023. ECF No. 40.
II. Pain and Suffering
A. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include an award “[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 awarding
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
3 See Minute Entry dated January 29, 2024. 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 See Hearing Order, filed December 18, 2023 (Non-PDF).
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to be reasonably necessary.” Section 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 precise 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) (“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. 93-0172V, 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 in the resolution of the
appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own experience
adjudicating similar claims. Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961
(Fed. Cir. 1993) (noting that Congress contemplated that special masters would use their
accumulated 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 continuum. See Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 579 (2013).
B. 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 this analysis, I review the record as a whole, including the
medical records and affidavit, written briefs, and argument at the January 29th Motions
Day hearing. 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. Based
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upon the above, I note and find the following:
• Petitioner received the flu vaccine in her left deltoid on October 30, 2018 at the
Veterans’ Administration, where she was employed as an orthotist and prosthetist.
Ex. 1 at 21; Ex. 2 at 9; Ex. 5 at 9.
• An employee health record indicates that on November 1, 2018 (2 days post-
vaccination), Petitioner sought treatment from nurse practitioner Susan Burkart-
Jayez. Ex. 1 at 18-19. Petitioner reported that “at the time of vaccination, [the]
vaccine was administered forcefully & hurt immediately.” Id. at 18. Petitioner was
assessed with “[i]njection trauma to L[eft] deltoid” and was instructed to apply heat
to the affected area and to take a non-steroidal anti-inflammatory drug (“NSAID”)
of her choosing. Id. at 19.
• A November 5, 2018 employee health record indicates that Petitioner “[c]ontinue[d]
to have significant pain in [her] left shoulder such that she ke[pt] her elbow tucked
in. Some relief [from] heat to injection site.” Ex. 1 at 16. It was determined that
Petitioner was “able to work full duty.” Id.
• Petitioner underwent an MRI on November 6, 2018. Ex. 1 at 3-5. It was
unremarkable. Id.
• In response to Petitioner’s November 9, 2018 request for an orthopedic
consultation and subsequent “e-consult,” a four-week course of occupational
therapy was recommended. Ex. 1 at 16.
• A November 14, 2018 employee health record indicates that Petitioner continued
to experience significant pain despite a normal physical exam. Ex. 1 at 16.
• On November 16, 2018, Petitioner saw a chiropractor for her a general adjustment
and arm pain. Ex. 6 at 4, 15. The record documenting this visit indicates that
Petitioner rated her symptoms as a seven on a ten-point pain scale. Id.
• Petitioner returned for chiropractic treatment on November 20, 2018. Ex. 6 at 16.
The note documenting this visit indicates that she again rated her pain as a seven
on a ten-point pain scale. Id.
• On November 26, 2018, Petitioner was seen by Dr. Lee A. Kaback at OrthoNY in
relation to her worker’s compensation claim regarding her left shoulder pain. Ex. 2
at 3-5. In addition to noting that Petitioner’s pain had been present since her
October 30, 2018 vaccination, Dr. Kaback’s medical notes reflect that her pain was
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Case 1:21-vv-00012-UNJ Document 51 Filed 03/07/24 Page 5 of 10
“laterally based, exacerbated with overhead and behind-the-back activities.” Id.
Petitioner was assessed with left shoulder rotator cuff tendinitis. Id. at 4.
• On January 2, 2019, Petitioner returned to Dr. Kaback and reported continuing left
shoulder pain. Ex. 2 at 6-8. The medical notes documenting this visit indicate that
Petitioner “[was] not doing well.” Id. Formal therapy as well as the use of anti-
inflammatory medications were recommended. Id. at 7.
• Petitioner attended a physical therapy session at Community Care Physical
Therapy on January 15, 2019. Ex. 3 at 10-12. She rated her pain, at its best, as a
zero on a ten-point pain scale. Id. at 10. At its worst, Petitioner rated her pain as a
six on the same pain scale. Id. Petitioner was assessed with tendinitis of the left
shoulder. Id. at 11. She had five physical therapy sessions through January 31,
2019. Id. at 10-22.
• Petitioner attended a chiropractic appointment on January 28, 2019. Ex. 6 at 17.
The note documenting this appointment indicates that Petitioner felt “like her
humerous [sic] is jammed up in the shoulder socket” and that she experienced pain
with sudden motion. Id. Petitioner described her pain as achy, dull, sharp and stiff
and rated it as a seven on a ten-point scale. Id.
• Petition underwent a worker’s compensation consultation with Dr. Kyle R. Flik on
February 6, 2019. Ex. 2 at 9-10. His notes reflect that Petitioner “has been having
left arm pain since late October when she had a flu shot. She said it was [an]
incredibly painful shot and she had trouble moving her arm for quite some time.
She had night pain and difficulty rotating and turning her arm. She has tried
physical therapy, chiropractic massage, Kinesio taping, but has had ongoing pain
and discomfort.” Id. at 9. Dr. Flik concluded that Petitioner suffered from “loss of
passive range of motion with external rotation to only 45 degrees and 90 degrees
of abduction in her contralateral shoulder. Her rotator cuff is weak globally but
appears to be intact.” Id. Petitioner was diagnosed with adhesive capsulitis. Id. at
10.
• On February 11, 2019, Petitioner received chiropractic treatment. Ex. 6 at 18. The
note reflects that Petitioner had “a lot of pain sleeping” and that she rated this pain
as a seven on a ten-point scale. Id.
• Petitioner returned for chiropractic treatment on February 13, 2019. Ex. 6 at 19.
She reported that despite soreness after her last treatment, she gained some relief.
Id. Nevertheless, Petitioner also noted that her shoulder “continue[d] to be tight
and painful with limited mobility.” Id.
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• During a physical therapy session on February 26, 2019, Petitioner reported using
a TENS unit to help alleviate her symptoms and noted that “she is unable to sleep
due to pain.” Ex. 4 at 92-93. The notes documenting this session further indicate
that “[Petitioner] uses [her] right UE [upper extremity] to move the left when needed
and uses a wall to rest her left arm on if she needs to do her hair. [Petitioner]
reports left forearm aching, left shoulder pain.” Id. at 92. Between February 26
and September 18, 2019, Petitioner attended 40 sessions of physical therapy. Id.
at 6.
• On March 7, 2019, Petitioner informed her chiropractor that she was experiencing
left anterior shoulder pain. Ex. 6 at 20.
• Petitioner returned to Dr. Flik on April 9, 2019. Ex. 2 at 11-12. His notes reflect that
Petitioner “continu[ed] to work full duties” and “notic[ed] steady and progressive
improvement in her shoulder range of motion and level of pain.” Id. at 11. Dr. Flik
also noted that Petitioner continued to have pain at the end ranges of her motion
and again assessed Petitioner with adhesive capsulitis. Id.
• At a May 3, 2019 chiropractic appointment, Petitioner reported “some improvement
in the shoulder.” Ex. 6 at 21.
• On September 4, 2019, Petitioner informed Dr. Flik that while her left shoulder
continued to improve, she experienced ongoing pain “especially when reaching
out overhead, putting on a coat, etc.” Ex. 2 at 13. On physical exam, Dr. Flik noted
“[Petitioner’s] glenohumeral range of motion is improved with external rotation at
the side to 70 degrees but adduction is limited still to about 70 degrees. She has
significant weakness with supraspinatus testing.” Id.
• Petitioner underwent a second MRI on September 18, 2019. Ex. 2 at 15-16. The
results revealed mild supraspinatus and infraspinatus tendinopathy. Id. at 15.
• Petitioner returned to Dr. Flik on September 19, 2019. Ex. 2 at 17-18. The medical
record reflects that Petitioner continued to suffer from discomfort and stiffness. Id.
at 17. Dr. Flik further noted that “it is within a reasonable degree of medical
certainty that this flu shot was the inciting or initiating factor that led to her frozen
shoulder.” Id. Moreover, Dr. Flik indicated that Petitioner could continue to work
full duty with no restrictions and proceed with performing gentle stretching
exercises. Id. at 18.
• At an October 8, 2019 chiropractic visit, Petitioner reported clavicle pain as a result
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of compensating for her left shoulder. Ex. 6 at 22. Petitioner described her left
shoulder pain as achy, dull and stiff. Id.
• At a May 18, 2020 chiropractic appointment, Petitioner reported “[t]ightness in the
neck and traps, pain near the left clavicle, and limited [range of motion]/tightness
in the left shoulder.” Ex. 6 at 23.
• Petitioner again saw her chiropractor on August 21, 2020. Ex. 6 at 25. The note
documenting this visit indicated that Petitioner continued to suffer from left
shoulder pain that was achy, dull and stiff. Id.
• In an August 28, 2020 chiropractic noted, Petitioner’s left shoulder symptoms were
noted to have improved since her last visit. Ex. 6 at 24.
• On November 12, 2020, Petitioner sought treatment at Adirondack Rehabilitation
Medicine, reporting persistent left shoulder pain with decreased range of motion.
Ex. 20 at 3-4. Although her symptoms had receded over the past six months, she
continued to have pain with reaching and at night. Id. at 3. The medical note
reflects that the “[p]hysical examination [was] reassuring, however, [Petitioner] still
has pain and mildly decreased range of motion in the left shoulder.” Id. at 4.
• In a December 28, 2020 affidavit, Petitioner states that she “had to tie a string to
my care door in order to close it with my right hand” and that she had to discontinue
driving at night due to an inability to control her car’s high beams. Ex. 14 at 2.
Petitioner further states that she was unable to perform other activities of daily
living without pain such as showering, folding clothes and doing her own hair. Id.
at 3.
• Petitioner also maintains that her chiropractor and physical therapist will be a
critical part of her life going forward, and that she has suffered “forever injuries that
take forever treatments.” Ex. 14 at 3.
• Petitioner visited her chiropractor on January 27, 2021. Ex. 19 at 3. The note
documenting this visit indicates that Petitioner’s right arm and shoulder had been
sore for a couple of weeks. Id. There is no indication that Petitioner complained of
left shoulder pain at this time, however.
The case record overall establishes that Petitioner experienced a moderate SIRVA
injury that only required conservative treatment. Indeed, Petitioner never underwent
surgery, did not receive any cortisone injections, and was able to continue working on a
full-time basis. Further, although Petitioner asserts that she continues to suffer from the
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residual effects of her injury, the most recent treatment record filed in this case is from
November 2020 (over three years ago). Ex. 20 at 3-4. At that time, it was determined that
despite Petitioner’s report of some pain and mildly decreased range of motion, her
symptoms had mostly (albeit not completely) receded. Id.
Nevertheless, Petitioner did seek treatment for her shoulder injury only two days
post-vaccination, which signals that her initial pain was significant. And even by February
11, 2019 (approximately three months post-vaccination), Petitioner rated her pain as a
seven on a ten-point scale. I have also considered Petitioner’s extensive participation in
physical therapy: Between January and September 2019, Petitioner completed 45
sessions.
Another factor relevant to the magnitude of a pain and suffering award is the effect
that a petitioner’s shoulder injury had on his or her personal life. In this case, Petitioner
has credibly explained that during the height of her injury, her ability to operate a vehicle
was impaired, and that she was unable to painlessly perform other activities of daily living.
Ex. 14 at 2-3. I give some weight to these contentions while comparing them to the overall
record (which corroborate a SIRVA requiring limited treatment).
Despite the demonstrated impact that Petitioner’s injury had on her daily routine, I
find that the $90,000.00 sum requested by Petitioner to be a bit high. Among the cases
cited in her brief are Black and Miller –where $75,000.00 was awarded for actual pain
and suffering. Black v. Sec’y of Health and Human Servs., 20-0777V, 2022 WL 3335594
(Fed. Cl. Spec. Mstr. July 12, 2022); Miller v. Sec’y of Health & Human Servs., No. 20-
0604V, 2022 WL 3641716 (Fed. Cl. Spec. Mstr. July 22, 2022). Respondent cited a
comparable case - Niemi v. Sec’y of Human Health & Servs., No. 19-1535V, 2022 WL
3135258 (Fed. Cl. Spec. Mstr. July 5, 2022) - in which $75,000 was awarded for actual
pain and suffering, although he maintains an award of $70,000.00 is appropriate.
Although the facts of these cases present slightly varied courses of treatment, the Black,
Miller and Niemi petitioners (like Ms. Cyr) each suffered mild-to-moderate SIRVA injuries
and withstood relatively conservative treatment. Black, 2022 WL 3335594, at *5; Miller,
2022 WL 3641716, at *5; Niemi, 2022 WL 3135258, at *6.
Accordingly, balancing the severity and overall course of Petitioner’s moderate
SIRVA injury against the personal hardships that she experienced as a result, and
considering the arguments presented by both parties at the hearing, a review of the
relevant caselaw and the written record, I find that $75,000.00 for actual pain and suffering
is reasonable in this case.
My award does not, however, include a future component of pain and suffering. As
I have previously stated, I reserve that component in SIRVA matters “where a strong
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showing is made that the claimant has suffered a permanent disability, or there are other
extenuating circumstances that justify inclusion of a future component.” Accetta v. Sec’y
of Health & Human Servs., No. 17-1731V, 2021 WL 1718202, at *5 (Fed. Cl. Spec. Mstr.
Mar. 31, 2021). In this case, Petitioner has not preponderantly established that she has
received treatment in more than three years, and the sequelae she might otherwise still
experience do not sufficiently rise to the level warranting a future award (but can instead
be factored into the actual award I am issuing).
III. Lost Wages
A. Legal Standard
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections,”
where the injured party's “earning capacity is or has been impaired by reason of such
person's vaccine-related injury.” Section 15(a)(3)(A). Compensation awarded for a
petitioner’s anticipated loss of earnings may not be based on speculation. J.T. v. Sec'y of
Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed. Cl. Sept. 17, 2015)
(indicating Section 15(a)(3)(A) “does not envision that ‘anticipated loss of earnings’
includes speculation” and denying to calculate lost wages on a planned business
venture); Dillenbeck v. Sec'y of Health & Hum. Servs., 147 Fed. Cl. 131, 139 (2020) (citing
J.T., 2015 WL 5954352, at *7). The United States Court of Federal Claims has
“recognize[d] that the determination of compensation for lost earnings ‘in accordance with
generally recognized actuarial principles and projections’ would likely require expert
opinion evidence.” Dillenbeck,147 Fed. Cl. at 139.
B. Lost Wages Determination
Petitioner, a general scale (“GS”) employee for the U.S. Government, requests
$2,327.13 in past lost wages. She asserts that this amount represents reimbursement for
55.25 hours of sick leave relating to treatment of her shoulder injury. Brief at 10; See also
Ex. 21 at 24-27. Petitioner reasons that “[i]n order to buy back that time and maintain her
benefits,” she would be required to pay this amount. Id.
I have noted in other cases that it is reasonable to reimburse a claimant for lost
paid time off (“PTO”), where a company’s policy is to pay employees for days not taken
as either vacation or sick leave (and hence the Program reimburses the individual for
having to forego this compensation). See, e.g., Gross v. Sec'y of Health & Human Servs.,
No. 19-0835V, 2021 WL 2666685, at *6 (Fed. Cl. Spec. Mstr. March 11, 2021), mot. for
review den'd, 154 Fed. Cl. 109 (2021). In that context, utilization of a sick day means the
petitioner “loses” a paid vacation day – and hence it is reasonable to compensate the
claimant for that loss.
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Here, however, Petitioner has neither argued nor established that she would have
been offered a cash award for unused sick time. Indeed, since government employees
are allotted sick leave as a category separate from general/vacation leave, they are not
obligated to make up for sick leave expended (except in the uncommon circumstances
that the sick leave utilized exceeds what the individual had accrued). Thus, because sick
leave is a paid absence from duty, an award for lost wages in this case would result in a
double payment. And Petitioner has not otherwise established liability for this expenditure
of sick leave. Therefore, based on the above, Petitioner’s claim for lost wages is denied.
IV. Award for Past Unreimbursable Expenses
Petitioner also requests $2,889.26 in past unreimbursable expenses. Brief at 2.
Respondent does not dispute this sum. Opp. at 7. Therefore, Petitioner is awarded this
amount without adjustment.
Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $77,889.26, (representing $75,000.00 for Petitioner’s actual
pain and suffering, and $2,889.26 for past unreimbursable medical expenses) in the form
of a check payable to Petitioner, Darcy Cyr. 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.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 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.
10