In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 12-475V

Filed: November 8, 2018

Not for Publication

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

KIMBERLY S. THOMPSON, *

*

Petitioner, * 

 * 

v. *

 *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

 *

 Respondent. *

*

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

Clifford J. Shoemaker, Vienna, VA, for petitioner.

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

MILLMAN, Special Master

DECISION AWARDING DAMAGES1

On July 27, 2012, petitioner 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. Petitioner also received H1N1

influenza vaccine on October 23, 2009, which is not covered under the Vaccine Act during the 

2009-2010 flu season. 

On November 8, 2018, respondent filed Respondent’s Proffer on Award of Compensation. 

 

1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this 

case, the special master intends to post this unpublished decision on the United States Court of Federal 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-Government 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 information that is 

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

unwarranted invasion of privacy. This means the decision will 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 prior 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; 

H1N1 vaccine; peripheral 

neurological injury
2

The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole, 

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

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

a. a lump sum of $653,890.05, 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 earnings ($345,526.82), pain and suffering ($235,000.00), 

and past unreimbursable expenses ($19,615.30);

b. a lump sum of $54,462.87, representing compensation for satisfaction 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, Recoveries Officer 

Petitioner agrees to endorse this payment to MD-DHMH; and

c. an amount sufficient to purchase an annuity contract. 

In 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), entry 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 

)

SECRETARY 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, 

Kimberly 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 proffers that petitioner receive 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 Linda 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 “vaccine-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: Items 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, respondent proffers that Kimberly S. Thompson 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 Kimberly S. Thompson’s lost earnings is 

$345,526.82. Petitioner agrees.

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 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 Kimberly S. Thompson’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 $19,615.30. 

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 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.
-3-

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

have against any individual as a result of any Medicaid payments the State of Maryland has 

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 Award2

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 as described 

below, and request that the Special Master’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 judgment ($53,747.93), lost earnings

($345,526.82), and pain and suffering ($235,000.00), in the form of a check payable to 

petitioner, Kimberly S. Thompson.

B. A lump sum payment of $54,462.87, representing compensation for satisfaction 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, Recoveries Officer

 2

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

reserves his right, pursuant 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 the 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 company5 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, which annuity shall make payments directly to petitioner, 

Kimberly S. Thompson, only so long as Kimberly S. Thompson 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.

 4

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

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 the routine uses described in the National Vaccine Injury 

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

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 

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, 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 Recommended 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 dial: (202) 616-4136

Dated: November 8, 2018
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Year 3

Compensation 

Years 4-5

Compensation 

Year 6

Compensati

Year 7

2018 2019 2020 2021-2022 2023 2024 

Medicare Part B Premium 5% M 1,608.00 1,608.00 1,608.00 1,608.00 1,608.00 1,608.0

 

Medicare Advantage Premium 5% M 936.00 936.00 936.00 936.00 936.00 936.0

 

Medicare Advantage MOP 5% 10,000.00 10,000.00 10,000.00 10,000.00 10,000.00 10,000.0

 

OOP Drug Costs 5% M 1,080.18 1,080.18 1,080.18 1,080.18 1,080.18 1,080.

 

Primary Care 5% *Mileage: PCP 4% 7.56 7.56 7.56 7.56 7.56 7.5

 

Neurologist 5% *Mileage: Neurolgist 4% 116.10 116.10 116.10 116.10 116.10 116.

 

Diagnostic/ Serum Studies 5% *Mileage: Diag./Serum Studies 4% 3.02 3.02 3.02 3.02 3.02 3.0

 

PM&R 4% *Mileage: PM&R 4% 0.40 0.40 0.40 0.40 0.40 0.4

 

Urology 5% *Mileage: Urology 4% 4.68 4.68 4.68 4.68 4.68 4.6

 

Surgery 5% *Mileage: Surgery 4% 3.90 1.95 1.95 1.95 1.95 1.9

 

Surgical Infuse-a-port 5% *Mileage: Surgical Infuse-a-port 4% 1.44 0.41 0.41 0.41 0.41 0.4

 

Opthalmology 5% *Mileage: Opthalmology 4% 1.26 1.26 1.26 1.26 1.26 1.2

 

Podiatry 4% 200.00 200.00 200.00 200.00 200.00 200.0

 

Mileage: Podiatry 4% 5.98 5.98 5.98 5.98 5.98 5.9

 

ER 5% *Ambulance 5% *Hospitalization 5% *Counseling 4% *Mileage: Counseling 4% 81.87

Mileage: Suport Group 4% 4.97 4.97 4.97 4.97 4.97 4.9

 

Care Mngt 4% M 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.0

 

Metoprolol 5% *Ibuprofen 5% *
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Year 3

Compensation 

Years 4-5

Compensation 

Year 6

Compensati

Year 7

2018 2019 2020 2021-2022 2023 2024 

Tizanidine 5% *Omeprazole 5% *C-Pilocarpine 5% 165.00 165.00 165.00 165.00 165.00 165.0

 

Supplies for B-12 Inj 4% *Incontinence Pads 4% 93.08 93.08 93.08 93.08 93.08 93.0

 

Compression Stockings 4% 179.18 179.18 179.18 179.18 179.18 179.

 

Prescription Glasses 4% 582.50 291.25 291.25 291.25 291.25 291.2

 

IVIG 5% *Mileage: IVIG 4% 22.64 22.64 22.64 22.64 22.64 22.6

 

Supplies for IVIG 5% *Power Scooter 4% 1,743.00 249.00 249.00 249.00 249.00 249.0

 

Battery 4% 214.29 214.29 214.29 214.29 214.29 214.2

 

Scooter Car Carrier 4% 654.50 

Callapsible Manual WC 4% *Sit to Stand Recliner 4% 612.00 

Shower Transfer Chair 4% 132.39 132.39 

Bedside Commode 4% 155.64 155.64 

Perching Stool 4% 141.00 

Assist Pole 4% 175.12 

Reachers 4% 50.10 50.10 

AFOs 4% *Orthopedic Shoe 4% 69.56 34.78 34.78 34.78 34.78 34.7

 

Pers. Emergency Resp. System 4% 515.40 515.40 515.40 515.40 515.40 515.4

 

PT Eval 4% *Mileage: PT Eval 4% 1.69 1.69 1.69 1.69 1.69 1.6

 

OT Eval 4% *Mileage: OT Eval 4% 1.69 1.69 1.69 1.69 1.69 1.6

 

PT 4% *Mileage: PT 4% 40.61 40.61 20.30 20.30 6.77 6.7

 

OT 4% *Mileage: OT 4% 20.30 20.30 20.30 6.77 6.77 6.7

 
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Year 3

Compensation 

Years 4-5

Compensation 

Year 6

Compensati

Year 7

2018 2019 2020 2021-2022 2023 2024 

Home OT Assess 4% 300.00

Assistive Tech Clinic 4% *Mileage: Assistive Tech Clinic 4% 44.64 8.93 8.93 8.93 8.93 8.9

 

Seating & Equip Clinic 4% *Mileage: Seating & Equip Clinic 4% 44.64 8.93 8.93 8.93 8.93 8.9

 

Fitness/ Aquatic Program 4% M 612.00 612.00 612.00 612.00 612.00 612.0

 

Mileage: Fitness/Aquatic Program 4% 57.60 57.60 57.60 57.60 57.60 57.6

 

Personal Care Attendant 4% M 18,304.00 18,304.00 18,304.00 18,304.00 18,304.00 18,304.0

 

Cleaning Services 4% M 1,260.00 1,260.00 1,260.00 1,260.00 1,260.00 1,260.0

 

Home Mods 0% 7,500.00

Lost Earnings 345,526.82

Pain and Suffering 235,000.00

Past Unreimbursable Expenses 19,615.30

Medicaid Lien 54,462.87

Annual Totals 42,050.88 708,352.92 42,030.57 42,017.04 42,341.64 42,003.5

 

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 As soon as practicable after entry of judgment, respondent shall make the following payment to pexpenses ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unexpenses ($19,615.30): $653,890.05.As soon as practicable after entry of judgment, respondent shall make the following payment joinpetitioner and the Maryland Medical Assistance Program, as reimbursement of the state's MedicaiAnnual amounts payable through an annuity for future Compensation Years follow the anniversarAnnual amounts shall increase at the rates indicated above in column G.R., compounded annually 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 ind
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Medicare Part B Premium 5% MMedicare Advantage Premium 5% MMedicare Advantage MOP 5%OOP Drug Costs 5% MPrimary Care 5% *Mileage: PCP 4%Neurologist 5% *Mileage: Neurolgist 4%Diagnostic/ Serum Studies 5% *Mileage: Diag./Serum Studies 4%PM&R 4% *Mileage: PM&R 4%Urology 5% *Mileage: Urology 4%Surgery 5% *Mileage: Surgery 4%Surgical Infuse-a-port 5% *Mileage: Surgical Infuse-a-port 4%Opthalmology 5% *Mileage: Opthalmology 4%Podiatry 4%Mileage: Podiatry 4%ER 5% *Ambulance 5% *Hospitalization 5% *Counseling 4% *Mileage: Counseling 4%Mileage: Suport Group 4%Care Mngt 4% MMetoprolol 5% *Ibuprofen 5% *

Compensation 

Year 12

Compensation 

Years 13-20

Compensation 

Years 21-Life

2029 2030-2037 2038-Life

1,608.00

 936.00 936.00 936.00

 10,000.00 10,000.00 10,000.00 1,080.18 1,080.18 1,080.18

 7.56 7.56 7.56

 116.10 116.10 116.10

 3.02 3.02 3.02

 0.40 0.40 0.40

 4.68 4.68 4.68

 1.95 1.95 1.95

 0.41 0.41 0.41

 1.26 1.26 1.26

 200.00 200.00 200.00

 5.98 5.98 5.98

 4.97 4.97 4.97 6,000.00 6,000.00 6,000.00
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Tizanidine 5% *Omeprazole 5% *C-Pilocarpine 5%Supplies for B-12 Inj 4% *Incontinence Pads 4%Compression Stockings 4%Prescription Glasses 4%IVIG 5% *Mileage: IVIG 4%Supplies for IVIG 5% *Power Scooter 4%Battery 4%Scooter Car Carrier 4%Callapsible Manual WC 4% *Sit to Stand Recliner 4%Shower Transfer Chair 4%Bedside Commode 4%Perching Stool 4%Assist Pole 4%Reachers 4%AFOs 4% *Orthopedic Shoe 4%Pers. Emergency Resp. System 4%PT Eval 4% *Mileage: PT Eval 4%OT Eval 4% *Mileage: OT Eval 4%PT 4% *Mileage: PT 4%OT 4% *Mileage: OT 4%

Compensation 

Year 12

Compensation 

Years 13-20

Compensation 

Years 21-Life

2029 2030-2037 2038-Life

 165.00 165.00 165.00

 93.08 93.08 93.08

 179.18 179.18 179.18

 291.25 291.25 291.25

 22.64 22.64 22.64

 249.00 249.00 249.00

 214.29 214.29 214.29

 65.45 65.45 65.45

 61.20 61.20 61.20

 26.48 26.48 26.48

 31.13 31.13 31.13

 14.10 14.10 14.10

 17.51 17.51 17.51

 10.02 10.02 10.02

 34.78 34.78 34.78

 515.40 515.40 515.40

 1.69 1.69 1.69

 1.69 1.69 1.69

 6.77 6.77 6.77

 6.77 6.77 6.77
Appendix A: Items of Compensation for Kimberly S. Thompson 

ITEMS OF COMPENSATION G.R. * M

Home OT Assess 4%Assistive Tech Clinic 4% *Mileage: Assistive Tech Clinic 4%Seating & Equip Clinic 4% *Mileage: Seating & Equip Clinic 4%Fitness/ Aquatic Program 4% MMileage: Fitness/Aquatic Program 4%Personal Care Attendant 4% MCleaning Services 4% MHome Mods 0%Lost EarningsPain and SufferingPast Unreimbursable ExpensesMedicaid LienAnnual Totals

Compensation 

Year 12

Compensation 

Years 13-20

Compensation 

Years 21-Life

2029 2030-2037 2038-Life

 8.93 8.93 8.93

 8.93 8.93 8.93

 612.00 612.00

 57.60 57.60 27,456.00 24,024.00 27,456.00 1,260.00 1,260.00 49,773.40 47,949.40 47,843.80

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 As soon as practicable after entry of judgment, respondent shall make the following payment to pexpenses ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unexpenses ($19,615.30): $653,890.05.As soon as practicable after entry of judgment, respondent shall make the following payment joinpetitioner and the Maryland Medical Assistance Program, as reimbursement of the state's MedicaiAnnual amounts payable through an annuity for future Compensation Years follow the anniversarAnnual amounts shall increase at the rates indicated above in column G.R., compounded annually 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 ind