# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12

- 475 V

Filed: November 8, 2018

Not for Publication

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

KIMBERLY S. THOMPSON

, *

*

Petitioner, *

*

v. *

*

*

SECRETARY OF HE ALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Clifford J. Shoemaker

, Vienna, VA , for petitioner.

Voris E. Johnson , Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES 1

O n July 27, 2012, pe titioner filed a petition under the National Childhood Vaccine Injury

Act, 42 U.S.C. § 300aa

- 10

- 34 (2012), alleging that influenza (“flu”) vaccine administered on

September 15, 2009 caused her neurologic injury. Pet. at ¶¶ 5, 6. Petit ioner also received H 1 N 1 influenza vaccine on October 23, 2009, which is not covered under the Vaccine Act during the

2009

- 2010 flu season.

On N ovember 8, 2018

, respondent filed Respondent’s P roffer on Award of Compensation.

1 Because this unpublished decision contains a reasoned exp lanation for the special master’ s action in this

case, the special master intends to post this unpublished decision on the United States Court of Federal

Claims’ website, in accordance with the E

- Go vernment Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899,

2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made

available to the public unless they contain trade secrets or commercial or financial informati on that is

privileged and confidential, or medical or similar information whose disclosure would constitute a clearly

unwarranted invasion of privacy. This means the decision wil l be available to anyone with access to

the Internet. When such a decision is filed, petitioner has 14 days to identify and move to delete such

information pr ior to the document ’ s disclosure. If the special master, upon review, agrees that the

identified material fits within the banned categories listed above, the special master shall delete such

material from public access. Damages decision based on

proffer ; influenza (“flu ”) vaccine;

H 1 N 1 vaccine; peripheral

neurological injury2

The unde rsigned finds the terms of the p roffer to be reasonable. Based on the recor d as a whole,

the undersigned finds that petitioner is entitled to the award as stated in the p roffer. Pursuant to

the terms stated in the attached proffer, the court awards:

a. a lump sum of $ 6 53,890.05 , in the form of a check payable to petitioner representing

compensation for life care expenses expected to be incurred during the first year after

judgment ($53,747.93), lost earning s ($345,526.82), pain and suffering ($235,000.0 0),

and past unreimbursable expenses ($19,615.30) ;

b. a lump sum of $ 5 4,462.87 , representing compensation for satisfaction of the State of

Maryland Medicaid lien, payable jointly to petitioner and:

M D

- DHMH

Maryland Department of Health

Division of Recoveries and Financial Services

P.O. Box 13045

Baltimore, Maryland 21203

Re: Kimberly Payne, MA#: 46

- 904281

- 100

Attn: Sylvia Rose, Recoveries Officer

Petitioner agree s to endorse this payment to MD

- DHMH ; and

c. an amount sufficient to purchase an annuity contract.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: November 8, 2018 s/ Laura D. Millman

Laura D. Millman

Special Master

2 Pursuant to Vaccine Rule 11(a), e ntry of judgment can be expedited by each party , either separately or

jointly, filing a notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________ )

KIMBERLY S. THOMPSON, )

)

Petitioner, )

) No. 12

- 475V (ECF)

v. ) Special Master Millman

)

SECRETA RY OF HEALTH )

AND HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

On October 4, 2017, the Special Master issued a Ruling on Entitlement finding petitioner,

K imberly S. Thompson, entitled to compensation under the National Childhood Vaccine Injury

Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

- 34, as amended (“Vaccine Act” or “Act”). Respondent,

the Secretary of Health and Human Services, now pro ffers that petitioner r eceive a compensation

award consisting of the following , which represents compensation for all elements of

compensation under 42 U.S.C. § 300aa

- 15(a) to which petitioner is entitled :

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner L inda Curtis

, RN, MS, CCM, CNLCP

, and

petitioner engaged Kay Hairston, BSN, RN, CCM, CLCP, to provide an estimation of Kimberly

S. Thompson ’s future needs arising from her vaccine

- related injury

. For the purposes of this

proffer, the term “v accine

- related injury ” is as described in the Special Master’s Ruling on

Entitlement

, filed October 4 , 2017

. All items of compensation identified in the life care plan are

supported by the evidence, and are illustrated by the chart entitled Appendix A: It ems of- 2

- Compensation for Kimberly S. Thompson , attached hereto as Tab A. 1 Respondent proffers

that Kimberly S. Thompson 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. Lost Earnings

The parties agree that based upon the evidence of record, Kimberly S. Thompson has

suffered past loss of earnings and will suffer a loss of earnings in the future as a result of her

vaccine

- related injury . Therefore, responden t proffers that Kimberly S. Thompson should be

awarded l ost earnings as provided under the Vaccine A ct, 42 U.S.C. § 300aa

- 15(a)(3)( A ).

Respondent proffers that the appropriate award for Kimberly S. Thompson ’s lost earnings is

$ 345,526.82 . Petitioner agre es.

C. Pain and Suffering

Respondent proffers that Kimberly S. Thompson should be awarded $ 235,000.00 in

actual and projected pain and suffering for her vaccine

- related injury . This amount reflects that

the award for projected pain and suffering has b een 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 Kimberly S. Thompson ’s expenditure of past

unreimbursable expenses related to h er vaccine

- re lated injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $1 9,615.30

.

E. Maryland Medicaid Lien

Respondent proffers that Kimberly S. Thompson should be awarded funds to satisfy a

State of Maryland lien in the amount of $ 54,462.87 , which represents full satisfaction of any

1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual

benefit years run from the da te 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.- 3

- right of subrogation, assignment, claim, lien, or cause of action that the State of Maryland may

have against any individual as a re sult of any Medicaid payments the State of Maryland h as

made to

, or on behalf of

, Kimberly S. Thompson

, from the date of her eligibility for benefits

through the date of judgment in this case

, as a result of her vaccine

- related injury suffered on or

about September 15, 2009 , under Title XIX of the Social Security Act.

II. Form of the Award 2

The parties recommend that the compensation provided to Kimberly S. Thompson should

be made through a combination of lump sum payments and future annuity payments a s describ ed

below, and request that the Special M aster’s decision and the Court’ s judgment award the

following: 3

A. A lump sum payment of $ 653,890.05

, representing compensation for life care

expenses expected to be incurred during the first year after ju dgment ( $ 53,747.93 )

, lost earnings

( $ 345,526.82 )

, and pain and suffering ($ 2 35 ,000.00 )

, in the form of a check payable to

petitioner, Kimberly S. Thompson

.

B . A lump sum payment of $ 54,462.87 , representing compe nsation for satisfact ion of the

State of Maryland Medicaid lien, payable jointly to petitioner and:

MD

- DHMH

Maryland Department of Health

Division of Recoveries and Financial Services

P.O. Box 13045

Baltimore, Maryland 21203

Re: Kimberly Payne, MA#: 46

- 904281

- 100

Attn: Sylvia Rose, Recov er ies Officer

2 The parties have no objection to the proffered award of damages. However, respondent

reserves h is right, pursu ant to 42 U.S.C. § 300aa

- 12(f), to seek review of the Special Master’s

October 4, 2017 , decision finding petitioner entitled to an award under the Vaccine Act.

3 Should petitioner die prior to entry of judgment, the parties reserve the right to move th e Court

for appropriate relief. In particular, respondent would oppose any award for future medical

expenses, future lost earnings, and future pain and suffering

.- 4

- Petitioner agrees to endorse this payment to MD

- DHMH.

c

. An amount sufficient to purchase an annuity contract, 4 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 5 from

which the annuity will be purchased. 6 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, w hich annuity shall make payments directly to petitioner,

Kimberly S. Thompson , only so long as Kimberly S. Thompson 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 i n monthly, quarterly, annu al 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.

4 In respondent’s discretion, respondent may purchase one or more annuity contracts from o ne

or more life insurance companies.

5 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.

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

consistent with the Privacy Act and t he routine uses described in the National Vaccine Injury

Compensation Program System of Records, No. 09

- 15

- 0056.- 5

- 1. Growth Rate

Re spondent proffers that a four percent ( 4 %) growth rate should be applied to all non

medical life care items, and a five percent (5%) growth rate should be applied to all medical life

care items. Thus, the benefits illustrated in the chart at Tab A that ar e 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 s he

, Kimberly S. Thompson , 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 Kimberly S. Thompson ’s death.

3. Guardianship

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

III. Summary of R ecommended Payments Following Judgment

A. Lump Sum paid to petitioner, Kimberly S. Thompson : $ 653,890.05

B. Maryland Medicaid lien: $ 54,462.87

C

. An amount sufficient to purchase the annuity contract described

above in section II. C

.

Respectfully submitted,

JOSEPH H. HUNT

Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division- 6

- CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

ALEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

s/Voris E. Johnson, Jr.

VORIS E. JOHNSON, JR

. Senior Trial Attorney

Torts Branch, Civil Division

U. S. Department of Justice

P.O. Box l46, Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Direct d ial: (202) 616

- 4136

Dated: November 8 , 2018Appendix A: Items of Compensation for Kimberly S. ThompsonPage 1 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-5CompensationYear 6CompensationYear 7CompensationYears 8-10CompensationYear 112018 2019 2020 2021-2022 2023 2024 2025-2027 2028Medicare Part B Premium5% M 1,608.001,608.001,608.001,608.001,608.001,608.001,608.001,608.00Medicare Advantage Premium5% M 936.00936.00936.00936.00936.00936.00936.00936.00Medicare Advantage MOP5% 10,000.0010,000.0010,000.0010,000.0010,000.0010,000.0010,000.0010,000.00OOP Drug Costs5% M 1,080.181,080.181,080.181,080.181,080.181,080.181,080.181,080.18Primary Care5% *Mileage: PCP4% 7.567.567.567.567.567.567.567.56Neurologist5% *Mileage: Neurolgist4% 116.10116.10116.10116.10116.10116.10116.10116.10Diagnostic/ Serum Studies5% *Mileage: Diag./Serum Studies4% 3.023.023.023.023.023.023.023.02PM&R4% *Mileage: PM&R4% 0.400.400.400.400.400.400.400.40Urology5% *Mileage: Urology4% 4.684.684.684.684.684.684.684.68Surgery5% *Mileage: Surgery4% 3.901.951.951.951.951.951.951.95Surgical Infuse-a-port5% *Mileage: Surgical Infuse-a-port4% 1.440.410.410.410.410.410.410.41Opthalmology5% *Mileage: Opthalmology4% 1.261.261.261.261.261.261.261.26Podiatry4% 200.00200.00200.00200.00200.00200.00200.00200.00Mileage: Podiatry4% 5.985.985.985.985.985.985.985.98ER5% *Ambulance5% *Hospitalization5% *Counseling4% *Mileage: Counseling4% 81.87Mileage: Suport Group4% 4.974.974.974.974.974.974.974.97Care Mngt4% M 6,000.006,000.006,000.006,000.006,000.006,000.006,000.006,000.00Metoprolol5% *Ibuprofen5% *Appendix A: Items of Compensation for Kimberly S. ThompsonPage 2 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-5CompensationYear 6CompensationYear 7CompensationYears 8-10CompensationYear 112018 2019 2020 2021-2022 2023 2024 2025-2027 2028Tizanidine5% *Omeprazole5% *C-Pilocarpine5% 165.00165.00165.00165.00165.00165.00165.00165.00Supplies for B-12 Inj4% *Incontinence Pads4% 93.0893.0893.0893.0893.0893.0893.0893.08Compression Stockings4% 179.18179.18179.18179.18179.18179.18179.18179.18Prescription Glasses4% 582.50291.25291.25291.25291.25291.25291.25291.25IVIG5% *Mileage: IVIG4% 22.6422.6422.6422.6422.6422.6422.6422.64Supplies for IVIG5% *Power Scooter4% 1,743.00249.00249.00249.00249.00249.00249.00249.00Battery4% 214.29214.29214.29214.29214.29214.29214.29214.29Scooter Car Carrier4% 654.50654.50Callapsible Manual WC4% *Sit to Stand Recliner4% 612.00612.00Shower Transfer Chair4% 132.39132.39132.39Bedside Commode4% 155.64155.64155.64Perching Stool4% 141.00141.00Assist Pole4% 175.12175.12Reachers4% 50.1050.1050.10AFOs4% *Orthopedic Shoe4% 69.5634.7834.7834.7834.7834.7834.7834.78Pers. Emergency Resp. System4% 515.40515.40515.40515.40515.40515.40515.40515.40PT Eval4% *Mileage: PT Eval4% 1.691.691.691.691.691.691.691.69OT Eval4% *Mileage: OT Eval4% 1.691.691.691.691.691.691.691.69PT4% *Mileage: PT4% 40.6140.6120.3020.306.776.776.776.77OT4% *Mileage: OT4% 20.3020.3020.306.776.776.776.776.77Appendix A: Items of Compensation for Kimberly S. ThompsonPage 3 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-5CompensationYear 6CompensationYear 7CompensationYears 8-10CompensationYear 112018 2019 2020 2021-2022 2023 2024 2025-2027 2028Home OT Assess4% 300.00Assistive Tech Clinic4% *Mileage: Assistive Tech Clinic4% 44.648.938.938.938.938.938.938.93Seating & Equip Clinic4% *Mileage: Seating & Equip Clinic4% 44.648.938.938.938.938.938.938.93Fitness/ Aquatic Program4% M 612.00612.00612.00612.00612.00612.00612.00612.00Mileage: Fitness/Aquatic Program4% 57.6057.6057.6057.6057.6057.6057.6057.60Personal Care Attendant4% M 18,304.0018,304.0018,304.0018,304.0018,304.0018,304.0024,024.0024,024.00Cleaning Services4% M 1,260.001,260.001,260.001,260.001,260.001,260.001,260.001,260.00Home Mods0% 7,500.00Lost Earnings345,526.82Pain and Suffering235,000.00Past Unreimbursable Expenses19,615.30Medicaid Lien54,462.87Annual Totals708,352.9242,050.8842,030.5742,017.0442,341.6442,003.5147,723.5149,644.26Note: 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 careexpenses ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unreimbursableexpenses ($19,615.30): $653,890.05.As soon as practicable after entry of judgment, respondent shall make the following payment jointly topetitioner and the Maryland Medical Assistance Program, as reimbursement of the state's Medicaid lien: $54,462.87.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.Appendix A: Items of Compensation for Kimberly S. ThompsonPage 4 of 6ITEMS OF COMPENSATION G.R. * MMedicare Part B Premium5% MMedicare Advantage Premium5% MMedicare Advantage MOP5%OOP Drug Costs5% MPrimary Care5% *Mileage: PCP4%Neurologist5% *Mileage: Neurolgist4%Diagnostic/ Serum Studies5% *Mileage: Diag./Serum Studies4%PM&R4% *Mileage: PM&R4%Urology5% *Mileage: Urology4%Surgery5% *Mileage: Surgery4%Surgical Infuse-a-port5% *Mileage: Surgical Infuse-a-port4%Opthalmology5% *Mileage: Opthalmology4%Podiatry4%Mileage: Podiatry4%ER5% *Ambulance5% *Hospitalization5% *Counseling4% *Mileage: Counseling4%Mileage: Suport Group4%Care Mngt4% MMetoprolol5% *Ibuprofen5% *CompensationYear 12CompensationYears 13-20CompensationYears 21-Life2029 2030-2037 2038-Life1,608.00936.00936.00936.0010,000.0010,000.0010,000.001,080.181,080.181,080.187.567.567.56116.10116.10116.103.023.023.020.400.400.404.684.684.681.951.951.950.410.410.411.261.261.26200.00200.00200.005.985.985.984.974.974.976,000.006,000.006,000.00Appendix A: Items of Compensation for Kimberly S. ThompsonPage 5 of 6ITEMS OF COMPENSATION G.R. * MTizanidine5% *Omeprazole5% *C-Pilocarpine5%Supplies for B-12 Inj4% *Incontinence Pads4%Compression Stockings4%Prescription Glasses4%IVIG5% *Mileage: IVIG4%Supplies for IVIG5% *Power Scooter4%Battery4%Scooter Car Carrier4%Callapsible Manual WC4% *Sit to Stand Recliner4%Shower Transfer Chair4%Bedside Commode4%Perching Stool4%Assist Pole4%Reachers4%AFOs4% *Orthopedic Shoe4%Pers. Emergency Resp. System4%PT Eval4% *Mileage: PT Eval4%OT Eval4% *Mileage: OT Eval4%PT4% *Mileage: PT4%OT4% *Mileage: OT4%CompensationYear 12CompensationYears 13-20CompensationYears 21-Life2029 2030-2037 2038-Life165.00165.00165.0093.0893.0893.08179.18179.18179.18291.25291.25291.2522.6422.6422.64249.00249.00249.00214.29214.29214.2965.4565.4565.4561.2061.2061.2026.4826.4826.4831.1331.1331.1314.1014.1014.1017.5117.5117.5110.0210.0210.0234.7834.7834.78515.40515.40515.401.691.691.691.691.691.696.776.776.776.776.776.77Appendix A: Items of Compensation for Kimberly S. ThompsonPage 6 of 6ITEMS OF COMPENSATION G.R. * MHome OT Assess4%Assistive Tech Clinic4% *Mileage: Assistive Tech Clinic4%Seating & Equip Clinic4% *Mileage: Seating & Equip Clinic4%Fitness/ Aquatic Program4% MMileage: Fitness/Aquatic Program4%Personal Care Attendant4% MCleaning Services4% MHome Mods0%Lost EarningsPain and SufferingPast Unreimbursable ExpensesMedicaid LienAnnual TotalsCompensationYear 12CompensationYears 13-20CompensationYears 21-Life2029 2030-2037 2038-Life8.938.938.938.938.938.93612.00612.0057.6057.6024,024.0027,456.0027,456.001,260.001,260.0047,949.4049,773.4047,843.80Note: 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 careexpenses ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unreimbursableexpenses ($19,615.30): $653,890.05.As soon as practicable after entry of judgment, respondent shall make the following payment jointly topetitioner and the Maryland Medical Assistance Program, as reimbursement of the state's Medicaid lien: $54,462.87.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.