IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

OFFICE OF SPECIAL MASTERS 

No. 13-068V 

Filed: September 15, 2014 

(Not to be published) 

* * * * * * * * * * * * * * * * * * * * * * * * * 

LORI SIMPSON, * 

 * 

 Petitioner, * Decision on Damages based on Proffer; 

 v. * Influenza; Shoulder Injury Related to 

 * Vaccine Administration [“SIRVA”] 

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

* * * * * * * * * * * * * * * * * * * * * * * * * 

John C. Theisen, Esq., Theisen, Bowers & Associates, Fort Wayne, IN for petitioner. 

Lynn Ricciardella, Esq., U.S. Dept. of Justice, Washington, DC for respondent. 

DECISION ON DAMAGES1

Gowen, Special Master: 

 On January 28, 2013, Lori Simpson [“petitioner”] filed a petition for compensation 

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et 

seq.

2

 [the “Vaccine Act” or “Program”]. The petition alleges that petitioner received the 

influenza vaccine on December 18, 2010, and thereafter suffered a shoulder injury 

which was caused-in-fact by the influenza vaccine. Petition at 1, 14. On May 8, 2013, 

respondent filed her Rule 4(c) report [“Respondent’s Report”], in which she concedes 

that petitioner is entitled to compensation in this case. Respondent’s Report at 1. 

Special Master Vowell issued a Ruling on Entitlement on May 9, 2013. I was 

reassigned this case on March 6, 2014. 

 

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to 

post this ruling on the United States Court of Federal Claims' website, in accordance with the EGovernment Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 

U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and 

move to delete 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 

delete 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. 

§ 300aa (2006). 
2

 On August 29, 2014, respondent filed a proffer on award of compensation, which 

indicated that petitioner agreed to the compensation amount. Additionally, petitioner’s 

counsel was contacted by my chambers on September 2, 2014, and he subsequently 

confirmed on September 15, 2014, petitioner’s agreement with the proposed 

compensation amount contained within the filed Proffer. Pursuant to the terms stated in 

the attached Proffer, I award petitioner:

1. A lump sum payment of $163,991.73 in the form of a check payable to 

petitioner, Lori Simpson, representing compensation for life care expenses 

expected to be incurred during the first year after judgment ($19,747.06), lost 

earnings ($581.76), pain and suffering ($140,272.93), and past 

unreimbursable expenses ($3,389.98). 

2. An amount sufficient to purchase an annuity contract described in Section II.B 

of the attached Proffer. 

This amount represents compensation for all damages that would be available 

under § 300aa-15(a). 

 The clerk of the court is directed to enter judgment in accordance with this 

decision.3

 

IT IS SO ORDERED. 

 s/Thomas L. Gowen 

 Thomas L. Gowen 

 Special Master 

 

 

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice 

renouncing the right to seek review.
-1- 

 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

 OFFICE OF SPECIAL MASTERS 

_______________________________________ 

 ) 

LORI SIMPSON, ) 

 ) 

 Petitioner, ) 

 ) 

v. ) No. 13-068V 

 ) Special Master Gowan 

SECRETARY OF HEALTH AND HUMAN ) 

SERVICES, ) 

 ) 

 Respondent. ) 

 ) 

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION 

I. Items of Compensation 

A. Life Care Items 

 Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and 

petitioner engaged Dr. Carol A. White, RN, ANPC, GNPC, CNCLP, to provide an estimation of 

Lori Simpson’s future vaccine-injury related needs. For the purposes of this proffer, the term 

“vaccine related” is as described in the respondent’s Rule 4(c) Report filed May 8, 2013. All 

items of compensation identified in the life care plan are supported by the evidence, and are 

illustrated by the chart entitled Appendix A: Items of Compensation for Lori Simpson, attached 

hereto as Tab A.1

 Respondent proffers that Lori Simpson 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. 

 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- 

 B. Lost Earnings 

 The parties agree that based upon the evidence of record, Lori Simpson has suffered a 

past loss of earnings. Therefore, respondent proffers that Lori Simpson should be awarded lost 

earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent 

proffers that the appropriate award for Lori Simpson’s lost earnings is $581.76. Petitioner 

agrees. 

 C. Pain and Suffering 

 Respondent proffers that Lori Simpson should be awarded $140,272.93 in actual and 

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

suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner 

agrees. 

D. Past Unreimbursable Expenses 

 Evidence supplied by petitioner documents Lori Simpson’s expenditure of past 

unreimbursable expenses related to her vaccine-related injury. Respondent proffers that 

petitioner should be awarded past unreimbursable expenses in the amount of $3,389.98. 

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 $163,991.73, representing compensation for life care 

expenses expected to be incurred during the first year after judgment ($19,747.06), lost earnings 

 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- 

($581.76), pain and suffering ($140,272.93), and past unreimbursable expenses ($3,389.98), in 

the form of a check payable to petitioner, Lori Simpson. 

B. An amount sufficient to purchase an annuity contract,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 company4 from 

which the annuity will be purchased.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, 

Lori Simpson, only so long as she is alive at the time a particular payment 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. 

 1. Growth Rate 

 Respondent proffers that a four percent (4%) growth rate should be applied to all nonmedical life care items, and a five percent (5%) growth rate should be applied to all medical life 

 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. Standard 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. 
-4- 

care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity 

payments should grow as follows: four percent (4%) compounded annually from the date of 

judgment for non-medical items, and five percent (5%) compounded annually from the date of 

judgment for medical items. Petitioner agrees. 

 2. Life-contingent annuity 

 Petitioner will continue to receive the annuity payments from the Life Insurance 

Company only so long as she, Lori Simpson, is alive at the time that a particular payment is due. 

Written notice shall be provided to the Secretary of Health and Human Services and the Life 

Insurance Company within twenty (20) days of Lori Simpson’s death. 

 3. Guardianship 

 Petitioner is a competent adult. Evidence of guardianship is not required in this case. 

III. Summary of Recommended Payments Following Judgment

 A. Lump Sum paid to petitioner, Lori Simpson: $163,991.73 

B. An amount sufficient to purchase the annuity contract described 

 above in section II. B. 

 5

 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent 

with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program (con’t) 

System of Records, No. 09-15-0056. 
-5- 

 Respectfully submitted, 

 STUART F. DELERY 

 Assistant Attorney General 

 

 RUPA BHATTACHARYYA 

 Director 

 Torts Branch, Civil Division 

 VINCENT J. MATANOSKI 

 Deputy Director 

 Torts Branch, Civil Division 

 

 Linda S. Renzi 

 Senior Trial Counsel 

 Torts Branch, Civil Division 

 s/ Lynn E. Ricciardella 

 Lynn E. Ricciardella 

 Senior Trial Attorney 

 Torts Branch, Civil Division 

 U.S. Department of Justice 

 P.O. Box 146 

 Benjamin Franklin Station 

Washington, D.C. 20044-0146 

 Telephone: (202) 616-4356 

Dated: August 29, 2014. 
TAB A 
Appendix A: Items of Compensation for Lori Simpson Page 1 of 1

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Years 2-3

Compensation 

Years 4-5

Compensation 

Years 6-20

Compensation 

Years 21-Life

2014 2015-2016 2017-2018 2019-2033 2034-Life

BCBS Deductible 5% 350.00 350.00 350.00 350.00 

Medicare Part A Deductible 5% 1,216.00

Medicare Part B Deductible 5% 147.00

Medicare Part D 5% M 1,554.01 

Orthopedics 5% * 90.00 90.00 90.00 

Pain Mngt 5% * 270.00 120.00 60.00 60.00 61.20 

MRI Right Shoulder 5% * 319.20 

MRI Interp. 5% * 59.40 

X-ray of Right Shoulder 5% * 68.85 

X-ray Interp. 5% * 25.20 

Lunesta 5% * M 1,554.84 1,554.84 1,554.84 1,554.84 

Robaxin 5% * M 32.76 32.76 32.76 32.76 

Flexeril 5% * M 8.76 8.76 8.76 8.76 

Prednisone Inj 5% * 90.00 90.00 90.00 

Transdermal Medication Cream 5% M 10,494.00 10,494.00 

Ultram 5% * M 21.60 21.60 21.60 21.60 

OT Eval 4% * 30.00 

OT 4% * 720.00 

Psychotherapy 4% * 720.00 

Hand Held Shower 4% 25.10 5.02 5.02 5.02 5.02 

Long Handled Bath Sponge 4% 4.69 4.69 4.69 4.69 4.69 

Bed 4% 649.98 43.33 43.33 43.33 43.33 

TENS 4% 129.00 25.80 25.80 25.80 25.80 

Batteries for TENS 4% 12.00 12.00 12.00 12.00 12.00 

Mowing Service 4% 70.00 70.00 70.00 70.00 70.00 

Snow Removal 4% 70.00 70.00 70.00 70.00 70.00 

Housekeeping 4% M 2,600.00 2,600.00 2,600.00 2,600.00 2,600.00 

Physician Charge for Scope 5% * 291.60 

Anesthesia for Scope 5% * 112.63 

Facility Charge for Scope 5% * 300.00 

Shoulder Scope 5% * 627.45 

Lost Earnings 581.76

Pain and Suffering 140,272.93

Past Unreimbursable Expenses 3,389.98

Annual Totals 15,592.80 163,991.73 5,038.80 4,858.80 5,809.05 

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 ($19,747.06), lost earnings ($581.76), pain and suffering ($140,272.93), and past unreimbursable 

expenses ($3,389.98): $163,991.73.

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 summing to the annual amount indicated.