# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 0103 V UNPUBLISHED

M .A.

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: July 28, 2020 Refiled as Redacted : August 21, 2020

Special Processing Unit (SPU); Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Jane Ann Morrow, Otorowski, Johnston, et. al, Bainbridge Island, WA , for petitioner.

Linda Sara Renzi

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

DECISION AWARDING DAMAGES 1

On January 22, 2018

, M .A. 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 he suffered shoulder injuries caused in fact by the influenza vaccination he received on October 4, 2016 . Petition at 1, ¶ 2

. Petitioner further alleges that he received the vaccination in the United States, continues to suffer the residual effects of his injuries, and that neither he nor any other party has filed a civil action or received compensation for his injuries alleged a s vaccine caused. Id. at ¶¶ 2, 7, 11

- 12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On March 1, 2019

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for his shoulder injuries . On July 27, 2020

, R espondent filed a p roffer on

a ward of compensation (“Proffer”) indicating P etitioner should be awarded the following:

1 When this decision was originally filed

, I advised my inten t 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). In accordance with Vaccine Rule 18(b),
P etitioner filed a timely motion to redact certain information. This decision is being posted with Petitioner ’ s name redacted to reflect his in i ti als only

. Except for those changes and this footnote, no other substantive changes have been made. This decision will be posted on the court’s website with no further opportunity to move for redaction

.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S.C. § 300aa (2012 ).2

A. A ll items of compensation identified in the joint life care plan entitled Appendix A which is attached to the Proffer as Tab A ;

B. The amount of $ 9 5,000.00 , representing compensation for P etitioner’s actual and projected 3 pain and suffering; and

C. The amount of $ 4,706.00 , representing compensation for P etitioner’s actual unreimbursable expenses

.

Pr offer at 1

- 2

. In the Proffer, R espondent represented that P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find that P etitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award the following:

A. A lump sum in the amount of $ 105,906.00 , representing compensation in the amounts of $6,200.00 for life care expenses in the first year after judgment, $95,000.00 for actual pain and projected pain and suffering, and $4,706.00 for actual unreimburseable expenses in the form of a check payable P etitioner; and

B. An amount sufficient to purchase the annuity contract as described in Section II.B. of the Proffer

.

Th ese amount s represent compensation for all damages that w ould be available under §
15 (a)

.

The clerk of the 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 The Proffer states that the portion of this award representing Petitioner’s projected pain and suffering has been reduced to the net present value. Proffer at 2; s ee § 15(f)(4)(A) (requiring a reduction to net present value for future compensation being cu rrently paid).

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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

M A

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. No. 18-103V Chief Special Master Corcoran
ECF

RESPONDENT ’ S PROFFER ON AWARD OF COMPENSATION

On January 22, 2018, M A (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), a lleging that he suffered shoulder injuries following administration of

an influenza vaccine he received on October 4, 2016. Petition at 1. On March 1, 2019, the

Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating tha t

this case is appropriate for compensation under the terms of the Act for a Shoulder Injury

Resulting from Vaccine Administration ( SIRVA ) Table injury, and on March 1, 2019, the Court

issued a Ruling on Entitlement finding petitioner entitled to compensat ion. ECF No. 27; ECF

No. 28.

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner L inda Curtis , RN MS, CN LCP

, CCM, and

petitioner engaged Cloie B. Johnson, M.Ed., ABVE, CCM

, to provide an estimation of

petitioner ’s future vaccine

- injury related needs. For the purposes of this proffer, the term2 “vaccine related” is as described in the respondent’s Rule 4(c) Report. All items of

compensation identified in the life care plan are supported by the evidence, and are illustrate d by

the chart entitled Appendix A: Items of Compensation for M A , attached hereto as

Tab A. 1 Respondent proffers that petitioner should be awarded all items of compensation set

forth in the life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.

B. Pain and Suffering

Respondent proffers that petitioner should be awarded $95,000.00 in actual and projected

pain and suffering. This amount reflects that any award for projected pain and suffering has

been reduced t o net present value. See 42 U.S.C. § 300aa- 15(a)(4). Petitioner agrees.

C. Past Unreimbursable Expenses

Evidence supplied by petitioner documents his expenditure of past unreimbursable

expenses related to his vaccine -related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $4,706.00. Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a combination of lump sum payments and future annuity payments as described below,

and request that the Special Master’s decision and the Court’s judgment award the following: 2

A. A lump sum payment of $105,906.00, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($6,200.00), pain and

1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment.

2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering.3 suffering ($95,000.00), and past unreimbursable expenses ($ 4,706.00), in the form of a check

payable to petitioner, M A

.

B. An amount sufficient to purchase an annuity contra ct, 3 subject to the conditions

described below, that will provide payments for the life care items contained in the life care plan,

as illustrated by the chart at Tab A , attached hereto, paid to the life insurance company 4 from

which the annuity will be pu rchased. 5 Compensation for Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent years shall be provided through

respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,

M A only so long as petitioner is alive at the time a particular pa yment is due. At the

Secretary’ s sole discretion, the periodic payments may be provided to petitioner in monthly,

quarterly, annual or other installments. The “annual amounts” set forth in the chart at Tab A

describe only the total yearly sum to be paid to petitioner and do not require that the payment be

made in one annual installment.

3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.

4 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

c. Standar d and Poor's Corporation Insurer Claims- Paying Ability Rating: AA -, AA, AA+, or AAA;

d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA

- , AA, AA+, or AAA.5 Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Direc tor Torts Branch, Civil Division

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK
Assistant Director Torts Branch, Civil Division

s/ Linda S. Renzi
LINDA S. RENZI
Senior Tr ial Counsel Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4133

Dated: July 27, 2020Appendix A: Items of Compensation for M A Page 1 of 1

ITEMS OF COMPENSATION G.R. * M Lump Sum Compensation

Year 1 Compensation

Years 2-5 Compensation

Years 6-9 Compensation

Years 10-Life

2020 2021-2024 2025-2028 2029-Life

Insurance MOP 5% 3,500.00 3,500. 00
Medicare Supp F 5% M 2,925.00
Psych Eval 5% * 120.00
Physiatry Eval 4% * 240.00

PT Eval 4% * 180.00
Massage Therapy 4% *
Acupuncture 4% *

SPECT CT Scan 5% *

EMG/NCS 5% *

Ultrasound & EMG Guidance 5% *
Therapeutic Ultrasound 5% *
Microcurrent Electro-therapy 5% *
Axillary Nerve Block 5% *
Ancillary Services 4% M 2,700.00 2,700. 00 2,700. 00 2,700. 00
Pain and Suffering 95,000.00
Past Unreimbursable Expenses 4,706.00

Annual Totals 105,906.00 6,200.00 3,240. 00 5,625. 00

Note: Compensation Year 1 consists of the 12 month period following the date of judgment. Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care expenses ($6,200.00), pain and suffering ($95,000.00), and past unreimbursable expenses ($4,706.00): $105,906.00. Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment. Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment Items denoted with an asterisk (*) covered by health insurance and/or Medicare. Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.