### IN THE UNITED STATES CO URT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 13-068V Filed: September 15, 2014 (Not to be published)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 DAMAGES 1

Gowen , Special Master:
On January 28, 2013, Lori Simpson [“petiti oner”] filed a petiti on for compensation under the National Vaccine Injury Com pensation Program, 42 U.S.C. §300aa-10, et seq

. 2 [the “Vaccine Act” or “Progr am”]. The petition alleges that petitioner received the influenza vaccine on December 18, 2010, and t hereafter 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 [“Re spondent’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1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to post this ruling on the United States Court of Fede ral Claims' website, in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 Va ccine 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006).2 On August 29, 2014, respondent filed a pr offer on award of compensation, which indicated that petitioner agr eed 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, petit ioner’s agreement with the proposed compensation amount cont ained 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 ye ar after judgment ( $19,747.06), lost earnings ($581.76), pain and suffe ring ($140,272.93), and past unreimbursable expenses ($3,389.98).

2. An amount sufficient to purchase an annui ty contract described in Section II.B of the attached Proffer.

This amount represents compensation fo r 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 eac h 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-injur y related needs. For the purposes of this proffer, the term

“vaccine related” is as described in the res pondent’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: Item s of Compensation for Lori Simpson, attached

hereto as Tab A. 1 Respondent proffers that Lori Si mpson 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 pr ovided 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 eviden ce of record, Lori Simpson has suffered a

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

earnings as provided under the Vaccine Act, 42 U.S.C. § 30 0aa-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 Simps on should be awarded $140,272.93 in actual and

projected pain and suffering. This amount refl ects 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 petiti oner documents Lori Simpson’s expenditure of past

unreimbursable expenses related to her vaccin e-related injury. Respondent proffers that

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

Petitioner agrees.

II. Form of the Award

The parties recommend that the compensati on 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 Ma ster’s decision and the Court’ s judgment award the following: 2

A. A lump sum payment of $163,991.73, re presenting compensation for life care

expenses expected to be incurred during the fi rst 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 oppos e 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 company 4 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 di rectly to petitioner,

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

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

quarterly, annual or other installments. The “a nnual 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%) grow th rate should be appl ied 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 In surance Company must have on e 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 Cl aims-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 ch art at Tab A that are to be paid through annuity

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

judgment for non-medical items, and five per cent (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 aliv e 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 requ ired 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 purchas e the annuity contract described above in section II. B.

5 Petitioner authorizes the disclosure of certain docume nts 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 AAppendix 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 163,991.73 15,592.80 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.