VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00840
Package ID: USCOURTS-cofc-1_22-vv-00840
Petitioner: Janine Etchebarren-Scholes
Filed: 2022-08-02
Decided: 2025-06-10
Vaccine: influenza
Vaccination date: 2020-09-17
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 115000

AI-assisted case summary:
On August 2, 2022, Janine Etchebarren-Scholes filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) or complex regional pain syndrome (CRPS) as a result of an influenza vaccine she received on September 17, 2020, in her right shoulder. She further alleged that her symptoms persisted for more than six months. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that the petitioner was entitled to compensation. The respondent stated that the petitioner's alleged injury was consistent with SIRVA as defined by the Vaccine Injury Table, noting that she had no prior history of pain, inflammation, or dysfunction of her right shoulder that would explain the findings, that pain occurred within 48 hours after receipt of the vaccination, that the pain was limited to the shoulder in which the vaccine was administered, and that no other condition or abnormality was identified to explain the shoulder pain. The respondent also agreed that the petitioner suffered residual effects of her condition for more than six months, satisfying the legal prerequisites for compensation. On November 8, 2023, Chief Special Master Brian H. Corcoran issued a ruling on entitlement in favor of Ms. Etchebarren-Scholes. Following a dispute over damages, the parties briefed the issue, and a damages hearing was held on April 30, 2025. Ms. Etchebarren-Scholes was 54 years old at the time of vaccination. Her past medical history included bilateral shoulder x-rays three years prior due to pain and some complaints of bilateral shoulder pain in March 2020, though the respondent did not argue these contributed to her SIRVA injury. Eleven days after vaccination, she presented with right arm pain, decreased range of motion, and was diagnosed with bursitis, for which she was prescribed Prednisone. She experienced increasing pain and limited mobility, prompting her to seek further treatment. She received a right subacromial cortisone injection on November 4, 2020, which provided some mobility but not pain relief. She consulted her neurologist, Dr. Justin Cho, concerned about CRPS or brachial neuritis, but he was less suspicious of CRPS based on her exam and noted brachial neuritis would be unusual from a local injection. An MRI on December 16, 2020, revealed a rotator cuff tear and bursitis. She underwent a right shoulder arthroscopy with rotator cuff repair on May 10, 2022, approximately 22 months post-vaccination. She also received a second cortisone injection on January 17, 2021, and experienced pain related to her rotator cuff tear. She saw orthopedic surgeon Dr. Sarah Lewis, who noted a "CRPS like response" and referred her to a pain management program. She also received treatment for carpal tunnel syndrome and cervical spondylosis. Another orthopedic surgeon, Dr. Michael Charles, recommended surgery, which she underwent on May 10, 2022. Post-surgery, she underwent physical therapy and reported significant improvement in pain and range of motion by October 2022. She also underwent surgery for cubital tunnel and carpal tunnel syndrome in October 2022. In a declaration dated December 5, 2024, Ms. Etchebarren-Scholes described daily pain, inability to take pain medication due to stomach issues, and limitations in activities such as archery, swimming, and showering. She also reported a decline in mental health and impact on her job as a caretaker, having missed 123 days of work. Petitioner argued for $137,000 for pain and suffering, citing cases with similar or higher awards, emphasizing the 26-month duration of her injury and treatment. Respondent argued for a lower award, citing the case of Felland v. Sec’y of Health & Human Servs., which awarded $100,000, and contended that Petitioner's comorbidities, such as cervical spondylosis and carpal tunnel syndrome, were not related to her SIRVA injury and should not be considered in the damages calculation. Chief Special Master Corcoran found that while the Felland case was a useful comparison, it was insufficient given the 26-month duration of Ms. Etchebarren-Scholes's injury and treatment. He also noted that while Petitioner cited cases with higher awards, those claimants often received more physical therapy and did not have the same comorbidities. Considering the length of injury, the severity, and the comorbidities, Chief Special Master Corcoran awarded Ms. Etchebarren-Scholes a lump sum of $115,000.00 for her actual pain and suffering on June 10, 2025. Petitioner was represented by Paul R. Brazil of Muller Brazil, LLP, and Respondent was represented by Emily H. Manoso and later Mary Novakovic of the U.S. Department of Justice. The decision was issued by Chief Special Master Brian H. Corcoran.

Theory of causation field:
Petitioner Janine Etchebarren-Scholes, age 54, received an influenza vaccine on September 17, 2020. She alleged a shoulder injury related to vaccine administration (SIRVA) or complex regional pain syndrome (CRPS). Respondent conceded that the injury was consistent with SIRVA as defined by the Vaccine Injury Table, noting pain onset within 48 hours, localized to the injection site, and no prior shoulder issues. Petitioner's symptoms persisted for more than six months. The Special Master found entitlement based on Respondent's concession and the evidence. Damages were litigated, with Petitioner seeking $137,000 and Respondent arguing for $100,000 based on comparable cases and comorbidities. Petitioner's medical history included prior shoulder pain, bursitis, a rotator cuff tear diagnosed via MRI, and CRPS-like symptoms. She underwent two cortisone injections, physical therapy, and shoulder surgery approximately 22 months post-vaccination. Her treatment duration was 26 months. The Special Master awarded $115,000 for pain and suffering, considering the duration of injury, severity, and comorbidities like cervical spondylosis and carpal tunnel syndrome, which were deemed unrelated to the SIRVA injury. Petitioner was represented by Paul R. Brazil (Muller Brazil, LLP) and Respondent by Emily H. Manoso/Mary Novakovic (DOJ). Chief Special Master Brian H. Corcoran issued the entitlement ruling on November 8, 2023, and the damages decision on June 10, 2025.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00840-0
Date issued/filed: 2023-12-08
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/08/2023) regarding 26 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:22-vv-00840-UNJ Document 28 Filed 12/08/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0840V
JANINE ETCHEBARREN-SCHOLES,
Chief Special Master Corcoran
Petitioner,
v.
Filed: November 8, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Emily H. Manoso, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On August 2, 2022, Janine Etchenbarren-Scholes 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 Table shoulder injury related to
vaccine administration (“SIRVA”) or complex regional pain syndrome (“CRPS”) as the
result of an influenza (“flu”) vaccination she received on September 17, 2020, in her right
deltoid. Petition at 1. Petitioner further alleges that her symptoms persisted for more than
six months. Petition at 3. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On November 7, 2023, 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 Because this Ruling 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 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 (2018).

Case 1:22-vv-00840-UNJ Document 28 Filed 12/08/23 Page 2 of 2
1. Specifically, Respondent states that “petitioner’s alleged injury is consistent with SIRVA
as defined by the Vaccine Injury Table. Specifically, petitioner had no history of pain,
inflammation, or dysfunction of her right shoulder prior to vaccination that would explain
the findings; pain occurred within 48 hours after receipt of an intramuscular vaccination;
pain was limited to the shoulder in which the vaccine was administered; and no other
condition or abnormality has been identified to explain petitioner’s shoulder pain.” Id. at
6. Respondent further agrees that Petitioner suffered the residual effects of her condition
for more than six months and therefore has satisfied all legal prerequisites for
compensation under the Vaccine Act. 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_22-vv-00840-1
Date issued/filed: 2025-06-10
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 05/02/2025) regarding 44 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-0840V
JANINE ETCHEBARREN-SCHOLES,
Chief Special Master Corcoran
Petitioner,
v.
Filed: May 2, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 2, 2022, Janine Etchebarren-Scholes 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 Table shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received
to her right shoulder on September 17, 2020. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
Although Petitioner has been found entitled to compensation, the parties could not
agree on the damages to be awarded, and therefore the matter was scheduled for a
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 (2018).

Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 2 of 8
“Motions Day” proceeding. For the reasons discussed below, and after hearing argument
from the parties, I find that Petitioner is entitled to compensation in the amount of
$115,000.00 for her actual pain and suffering.
I. Procedural History
On November 8, 2023, I issued a ruling on entitlement in favor of Petitioner. ECF
No. 26. But the parties were unable to agree on damages, and therefore agreed to brief
the issue. ECF No. 35. On December 5, 2024, Petitioner filed her brief in support of
damages (“Mot.”), and Respondent filed a Response on January 29, 2025 (“Opp.”).
Petitioner did not file a reply. ECF Nos. 40-41. I heard arguments from both parties during
a Motions’ Day Damages hearing held on April 30, 2025.
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, declarations, the
parties’ respective pre-hearing filings, and in Respondent’s Rule 4(c) Report.
In brief summary, Ms. Etchebarren-Scholes was 54 years old at the time she
received the flu vaccine in her right shoulder at a Kaiser Permanente medical facility on
September 17, 2020. Ex. 1 at 11. Her past medical history showed that three years prior
to this vaccination, she underwent bilateral shoulder x-rays due to pain, and there is a
medical record indicating some complaints of bilateral shoulder pain in March 2020. Ex.
2 at 755-786. However, Respondent has not argued that any of these complaints
contributed to Petitioner’s SIRVA injury.
On September 28, 2020 (11 days after vaccination), Petitioner went to urgent care
for complaints of “right arm pain after receiving flu shot 09/17/2020.” Ex. 2 at 1180. She
reported that her “[p]ain started after she was given the flu shot in her right deltoid muscle.
Did have some redness and swelling initially but those symptoms have resolved but the
pain is increasing.” Id. On exam, Petitioner had decreased range of motion (“ROM”) with
increased pain with abduction of shoulder and tenderness. Id. She was diagnosed with
bursitis of the right shoulder and prescribed Prednisone. Id. at 1181.
On October 6, 2020, Petitioner emailed her primary care provider (“PCP”) stating,
“day after flu shot I could not use my arm, arm has more mobility now but pain with
movement.” Id. at 1204. Petitioner emailed her PCP again five days later, writing, “[m]y
arm is so messed up I can’t do any range of motion exercise cause my arm won’t move
to do it. My jobs r (sic) threatened and I’m in so much pain from this. Id. at 1205. See Ex.
2 at 1205, 1210, 1217-19, 1223, 1231.
2

Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 3 of 8
On November 4, 2020, Petitioner’s received a right subacromial cortisone injection.
Ex. 2 at 1250. Although the injection helped her gain some mobility, Petitioner still
complained of pain and requested a stronger pain medication. Ex. 2 at 1267; Ex. 7 at 828.
On December 1, 2020, Petitioner contacted her neurologist, Justin Cho, M.D.,
whom Petitioner previously saw for vertigo and headaches. Ex. 2 at 1288-1290. Petitioner
was concerned that her right shoulder pain might reflect CRPS or brachial neuritis. Id. Dr.
Cho responded advising, “[s]o CRPs can occur after minor injuries but is not very common
and has certain features on exam.” Id. at 1290. He also responded that, “[b]rachial neuritis
also is not quite common and would be strange to occur from a local injection since the
nerves in the brachial plexus are deep in the shoulder area.” Id.
On December 16, 2020, Petitioner underwent an MRI of her right shoulder which
revealed a 1.4cm full-thickness tear of the anterior aspect of the supraspinatus tendon
footprint, and mild-to-moderate subacromial/subdeltoid bursal fluid/bursitis. Ex. 2 at 1308-
09.
Petitioner returned to Dr. Cho on December 17, 2020. Ex. 2 at 1322-25. Petitioner
related her pain to her flu vaccination, but Dr. Cho was unclear if there was a causal
relationship. Id. at 1326. Dr. Cho was less suspicious of CRPS given Petitioner’s exam.
Id. He recommended a trial of a different prescription pain medication. Id.
On December 23, 2020, Petitioner reviewed the results of the MRI with a treater.
Ex. 2 at 1345. Surgery was discussed, but Petitioner wanted to consider her options. Id.
at 1345. Later that day, Petitioner decided to proceed with surgery. Id. at 1352. However,
due to COVID restrictions, the surgery was postponed. Id. Petitioner underwent a cervical
MRI on January 6, 2021, which showed “[m]ild to moderate cervical spondylosis.” Id. at
1329; Ex. 7 at 874. On January 17, 2021, Petitioner received a second right subacromial
cortisone injection. Id. at 1381. At another treater visit in March 2020, it was proposed
that some of Petitioner’s pain was from her right rotator cuff tear. Id. at 1380-81.
Thereafter, Petitioner saw several other orthopedic providers for opinions on her
right shoulder pain. See, e.g., Ex. 4 at 30, 83-89; Ex. 7 at 952. On May 18, 2021, Petitioner
saw orthopedist Sarah Lewis, M.D. Ex. 4 at 83. Petitioner stated that her pain began after
her flu vaccine and that treatment measures thus far had not provided relief. Id. Dr. Lewis
noted that petitioner had a “CRPS like response.” Id. at 89.
Petitioner continued to see Dr. Lewis for her right shoulder pain, as well as for
treatment of her carpal tunnel syndrome. See, e.g, Ex. 4 at 141-44, 366. Dr. Lewis also
referred Petitioner to an integrated pain management program, through which Petitioner
attended some cognitive behavioral therapy classes and physical/occupational therapy
(“PT/OT”). See, e.g., id. at 133, 177, 189, 230, 250-257, 326, 341, 366, 372, 395, 401.
3

Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 4 of 8
On December 15, 2021, about 15 months after her vaccination, Petitioner saw a
new orthopedic surgeon, Michael Charles, M.D. Ex. 7 at 1434. Petitioner reported her
right shoulder pain as very severe, up to 10/10. Id. She also reported an improvement to
her range of motion following injections and physical therapy, but no pain relief. Id. Dr.
Charles recommended nightly gabapentin, a compounded topical ointment, and surgery.
Id. at 1440.
On May 10, 2022, approximately 22 months post-vaccination, Petitioner
underwent a right shoulder arthroscopy with rotator cuff repair. Ex. 7 at 2132; Ex. 8 at 8.
Following shoulder surgery, Petitioner began physical therapy for her right shoulder. See
id. at 1595-97, 1614-15, 1638, 1649, 1675-76, 1689, 1709, 1730-39. Petitioner saw Dr.
Charles for right shoulder post-operative appointments. Id. at 1658-62, 1780-86; Ex. 8 at
21.
By June 22, 2022, Petitioner reported “feel[ing] much less pain in [her] R[ight]
shoulder.” Ex. 7 at 1675. On October 5, 2022, Petitioner reported that she was “doing
excellent for A[ctive] ROM[,]” had “improving strength[,]” and was “[a]ble to finish all
exercises without any complain[t]s of increase in pain to the affected area.” Id. at 1858.
Petitioner had another appointment with Dr. Lewis on September 7, 2022. Ex. 7 at
1767-69. She reported that her right shoulder pain improved post-surgery. Id. Dr. Lewis
was “happy to see [that] patient[’]s right shoulder pain ha[d] improved.” Id.
On October 20, 2022, Dr. Lewis performed a right cubital tunnel decompression
and subcutaneous anterior transposition and right revision carpal tunnel release surgery.
See Ex. 8 at 37. Petitioner continued to see Dr. Lewis for post-operative appointments
and attended at least one occupational therapy appointment for her right hand. See, e.g.,
Ex. 8 at 70-71, 78.
Petitioner’s last right shoulder pain appointment was on November 21, 2022, when
she followed up with Dr. Charles. Ex. 8 at 28. Though Petitioner reported persistent pain
at the initial vaccination site, she “seemed to have full recovery” of her shoulder function.
Id.
In her most recent declaration (dated December 5, 2024), Ms. Etchebarren-
Scholes explained the impact of her injury on her personal life: “I have been in pain daily.
I cannot take pain medication due to stomach issues, so I endure as best I can. When I
move my shoulder, you can hear it crackle.” Ex. 12 at 1. Petitioner also explained that her
sleep has been negatively impacted and she cannot share the same bed as her husband
due to pain and discomfort. Id. She stated that she cannot ride her motorcycle, practice
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Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 5 of 8
archery, go target shooting, throw darts, shoot pool, go kayaking, or swim. Id. Petitioner
explained that she could not take showers because she was unable to raise her arms
long enough to wash herself before the hot water ran out. Id. Petitioner also explained
that her mental health declined because of her injury. She stated that her injury affected
her relationship with her husband and children. Id. In addition, she explained that her
injury affected her job as a caretaker of adults with mental disabilities. Id. at 1-2. Petitioner
explained that her job as a caretaker is physically demanding and sometimes requires
that she restrain patients. Id. at 2. She stated that she has missed 123 days of work and
has exhausted her paid leave. Id.
III. The Parties’ Arguments
a. Petitioner
Ms. Etchebarren-Scholes maintains that the pain and suffering from her SIRVA
injury has been very severe. Mot. at 6. She rated her pain at 10/10 more than one-year
post vaccination. Id. Petitioner stated that she tried to schedule shoulder surgery just a
few months after her vaccination, but Covid restrictions caused the surgery to be
postponed. Id.
Petitioner stated that she saw a neurologist, occupational therapist, and two
orthopedic surgeons to treat her injury. Mot. at 6. She received two cortisone injections,
neither of which were very helpful, which led to her decision to pursue surgery. Id. at 7.
Petitioner states that despite her best intentions, she suffered severe pain and
dysfunction for a long time. Id. She stated that in the cases she cites in support of her
claim, “none of them come close to [her] duration of suffering.” Id. She stated that her
duration of pain was high for the entire duration of her injury, 26 months. Id.
Petitioner cited to five cases in support of her claim for past pain and suffering: (1)
Cosden v. Sec’y of Health & Human Servs., No. 20-1783V, 2023 WL 2469255 at *4 (Fed.
Cl. Spec. Mstr. Feb. 9, 2023), (2) Kestner v. Sec’y of Health & Human Servs., No. 20-
0025V, 2023 WL 2447499, at *7 (Fed. Cl. Spec. Mstr. Feb. 3, 2023), Moore v. Sec’y of
Health & Human Servs., No. 19-1850V, 2022 WL 962524, at *5, (Fed. Cl. Spec. Mstr.
Feb. 25, 2022), Smith v. Sec’y of Health & Human Servs., No. 19-745V, 2021 WL
2652688, at *5 (Fed. Cl. Spec. Mstr. May 28, 2021), and (3) Brantley-Karaskinkski v.
Sec’y of Health & Human Servs., No. 20-1058V, 2023 WL 7160919, *6 (Fed. Cl. Spec.
Mstr. Sept. 28, 2023). Petitioners were awarded $ 110,000.00, $115,000.00,
$115,000.00, $125,000.00, and $125,000.00, respectively, for their past pain and
suffering in those cases.
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Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 6 of 8
b. Respondent
Respondent has argued that the cases cited by Petitioner to support her request
of $137,000.00 in pain and suffering “are not analogous to petitioner’s situation,” and thus
a lower damages amount is justified. Opp. at 11. Respondent noted that Petitioner was
seen just 11 days post vaccination for her shoulder pain, and she completed 12 sessions
of PT (not the 28 claimed by Petitioner). He further noted that Petitioner received two
steroid injections, was prescribed pain medications, and underwent shoulder surgery. Id.
at 9. However, Respondent also noted that by November 21, 2022, Petitioner’s orthopedic
surgeon noted that Petitioner “seem[ed] to have full recovery of [her] shoulder” and that
she had “[f]ull activity [within] 4-6 months[.]” Id.
Respondent also contends that Petitioner had significant comorbidities, including
her cervical spondylosis and her recurrent carpal tunnel syndrome. Opp. at 9. While
Petitioner’s underlying carpal tunnel syndrome may have initial complicated her shoulder
condition, Respondent noted that after Petitioner underwent shoulder surgery, she
regained full shoulder function, although she continued to have persistent neurologic pain.
Id. Respondent has argued that “there is no evidence that her carpal tunnel syndrome,
cervical spondylosis, alleged CRPS injury, or any of her other conditions are related to
her SIRVA injury, and any care or treatment for those conditions should not be considered
in the calculation of petitioner’s SIRVA damages award.” Id. at 10.
Respondent has argued that the pain and suffering award in the case he cites,
Felland v. Sec’y of Health & Human Servs., No. 20-0406, 2022 WL 10724100, at *7 (Fed.
Cl. Spec. Mstr. Sept. 6, 2022), is the more appropriate comparable case, and that
Petitioner should be awarded a sum for pain and suffering equal to the amount awarded
in this case, $100,000.00. Opp. at 10.
IV. 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 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). 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).
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Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 7 of 8
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)).
A special master 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 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 the 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).
V. Appropriate Compensation in this SIRVA Case
Neither party disputes that that Ms. Etchebarren-Scholes had full awareness of her
suffering, and I find that fact is supported by the record evidence.
As I noted during the hearing, Ms. Etchebarren-Scholes’s SIRVA did require
surgical intervention. Thus, a six-figure award for her pain and suffering is likely
appropriate, absent extraordinary circumstances. The amount awarded in the case cited
by Respondent, Felland, 2022 WL 10724100 (Fed. Cl. Spec. Mstr. Sept. 6, 2022), is still
a bit too low despite its utility as a comparable decision, especially given the length of
time Ms. Etchebarren-Scholes was treated for her injury and its demonstrated severe
nature. The Felland petitioner, like Ms. Etchebarren-Scholes, underwent surgery, had two
steroid injections, and participated in 12 PT sessions total. Opp. at 10. However, that
individual otherwise suffered a mild SIRVA injury, with lower pain levels, and slightly
limited ROM, for approximately one year. In contrast, there is no dispute among the
parties that Ms. Etchebarren-Scholes’s injury and treatment lasted for 26 months – more
than twice the length of time the Felland petitioner suffered her injury.
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Case 1:22-vv-00840-UNJ Document 50 Filed 06/10/25 Page 8 of 8
However, the claimants in most of the cases cited by Ms. Etchebarren-Scholes
received much more physical therapy (in most cases double the physical therapy) and
did not have the same comorbidities affecting treatment evident in this case. While Ms.
Etchebarren-Scholes claims in her brief that she had 28 PT sessions, a number of these
sessions were related to her carpal tunnel release surgery, and there is no indication of
shoulder treatment at these sessions. Thus, the number of PT sessions is closer the 12
claimed by Respondent. In addition, the treatment Ms. Etchebarren-Scholes received for
her underlying comorbid conditions are separate and unrelated to her SIRVA injury. There
is no indication that her carpal tunnel syndrome, cervical spondylosis, alleged CRPS
injury, are related to her SIRVA injury, and any care or treatment for those conditions will
not be considered in the calculation of her pain and suffering award.
That said, the cases cited by Petitioner that are closer to the lower end of the range
($110,000.00 to $115,000.00) seem to be good comparable cases. When considering the
length of Petitioner’s injury and the circumstances of her comorbidities and related
treatment, the Cosden, Kestner, and Smith cases are more comparable cases and more
persuasive. Based on all of the circumstances and evidence submitted, I find that her past
pain and suffering warrants an award of $115,000.00.
CONCLUSION
Based on my consideration of the complete record as a whole and for the reasons
discussed in my oral ruling, pursuant to Section 12(d)(3)(A), I find that $115,000.00
represents a fair and appropriate amount of compensation for Petitioner’s actual
pain and suffering.3 Accordingly, I award Petitioner a lump sum payment of
$115,000.00, 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
Court is directed to enter judgment in accordance with this Decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
4 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