In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 14-1220V

Filed: June 24, 2016

UNPUBLISHED

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

BRANDY ROJAS, *

*

Petitioner, * Damages Decision Based on Proffer;

v. * Influenza;

* Shoulder Injury (“SIRVA”);

SECRETARY OF HEALTH * Special Processing Unit (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Samantha Travis, Bryan & Travis, PLLP, Kalispell, MT, for petitioner.

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

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On December 22, 2014, 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”). Petitioner alleged that as a result of receiving a trivalent influenza (“flu”) 

vaccination on October 29, 2013, petitioner suffered cause-in-fact injuries to her left 

shoulder including Complex Regional Pain Syndrome (“CRPS”) and Myofasical Pain 

Syndrome. Petition at 1. The case was assigned to the Special Processing Unit of the 

Office of Special Masters.

On March 10, 2015, a ruling on entitlement was issued, finding petitioner entitled 

to compensation for a Shoulder Injury Related to Vaccine Administration (“SIRVA”). On 

June 24, 2016, respondent filed a proffer on award of compensation (“Proffer”)

 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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), petitioner has 14 days to 

identify and move to redact medical or other information, the disclosure of which would constitute an 

unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits 

within this definition, the undersigned will redact 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 (2012).
2

accompanied by Appendix A: Items of Compensation for Brandy Rojas. The Proffer 

indicates that petitioner should be awarded the following: 

• $175,000.00 in actual and projected pain and suffering; and

• $1,511.34 for past unreimbursable medical expenses; and

• $10,696.65 to satisfy a lien for services rendered for her vaccine-related injury by 

Professional Therapy Associates/Kalispell Rehabilitation Associates, Inc., P.C. 

(“PTA/KRA”) from December 17, 2013 to April 21, 2014; and

• $14,358.00 for life care expenses expected to be incurred during the first year 

after judgment; and

• An amount sufficient to purchase an annuity as described in paragraph II(C) of 

the proffer that will provide payments for the life care items contained in the life 

care plan for the second year after judgment and all subsequent years. 

Proffer at 2-3. In the Proffer, respondent represented that petitioner agrees with the 

proffered award. Based on the record as a whole, the undersigned finds that petitioner 

is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards 

the following:

• A lump sum payment of $190,869.34, representing compensation for life 

care expenses expected to be incurred during the first year after 

judgment ($14,358.00), pain and suffering ($175,000.00), and past 

unreimbursable expenses ($1,511.34), in the form of a check

payable to petitioner, Brandy Rojas;

• A lump sum payment of $10,696.65, representing compensation for 

satisfaction of the outstanding PTA/KRA lien against petitioner, payable 

jointly to petitioner and

PTA/KRA

1234 Whitefish Stage Road

Kalispell, Montana 59901

ID# 93143;

• An amount sufficient to purchase the annuity contract described in the 

Proffer Section II.C. This amount represents all remaining elements of 

compensation to which petitioner would be entitled under § 300aa-15(a). 

.

 3 Petitioner agrees to endorse this payment to PTA/KRA.
3

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

decision.4

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 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.
-1-

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

_______________________________________

BRANDY ROJAS, )

 )

Petitioner, )

 )

v. ) No. 14-1220V

 ) Chief Special Master Dorsey

SECRETARY OF HEALTH AND HUMAN ) ECF

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 Liz Kattman, MS, to provide an estimation of Brandy Rojas’s future vaccineinjury related needs. For the purposes of this proffer, the term “vaccine related” is as described 

in the respondent’s Rule 4(c) Report, filed March 6, 2015. 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 Brandy Rojas, attached hereto as Tab A.1 Respondent 

proffers that Brandy Rojas 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, Brandy Rojas has not suffered a 

past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent 

proffers that Brandy Rojas should not be awarded lost earnings as provided under the Vaccine 

Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

C. Pain and Suffering

Respondent proffers that Brandy Rojas should be awarded $175,000.00 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 her 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 $1,511.34. Petitioner agrees.

Evidence supplied by petitioner documents an outstanding lien claimed against her for 

services rendered for her vaccine-related injury by Professional Therapy Associates/Kalispell 

Rehabilitation Associates, Inc., P.C. (“PTA/KRA”) from December 17, 2013 to April 21, 2014.

Respondent proffers that petitioner should be awarded past unreimbursable expenses in the 

amount of $10,696.65 in order to satisfy the PTA/KRA lien, which amount shall be payable 

jointly to petitioner and PTA/KRA. Petitioner agrees.

E. Medicaid Lien

Petitioner represents that there are no outstanding Medicaid liens against her. 
-3-

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 Chief Special Master’s decision and the Court’s judgment award the 

following:2

A. A lump sum payment of $190,869.34, representing compensation for life care 

expenses expected to be incurred during the first year after judgment ($14,358.00), pain and 

suffering ($175,000.00), and past unreimbursable expenses ($1,511.34), in the form of a check 

payable to petitioner, Brandy Rojas.

B. A lump sum payment of $10,696.65, representing compensation for satisfaction of the 

outstanding PTA/KRA lien against petitioner, payable jointly to petitioner and 

PTA/KRA

1234 Whitefish Stage Road

Kalispell, Montana 59901

ID# 9314

Petitioner agrees to endorse this payment to PTA/KRA.

C. 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

 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

 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;
-4-

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, 

Brandy Rojas, 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 

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, Brandy Rojas, 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 Brandy Rojas’s death.

 

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. 

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 System 

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

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, Brandy Rojas: $190,869.34

B. PTA/KRA lien payable jointly to petitioner and PTA/KRA: $ 10,696.65

C. An amount sufficient to purchase the annuity contract described

above in section II. C.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Acting Deputy Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN

Senior Trial Attorney

Torts Branch, Civil Division

S/Alexis B. Babcock 

Alexis B. Babcock

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) 616-7678 

Dated: June 24, 2016
Appendix A: Items of Compensation for Brandy Rojas Page 1 of 1

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Years 2-13

Compensation 

Years 14-28

Compensation 

Years 29-33

Compensation 

Years 34-Life

2016 2017-2028 2029-2043 2044-2048 2049-Life

Insurance MOP 5% 1,250.00 1,250.00 1,250.00 

Prescription Deductible 5% 200.00 200.00 200.00 

Medicare Part B Deductible 5% *

Medigap F 5% M 2,226.00 2,226.00 

Medicare Part D 5% M 441.72 441.72 

Pain Mngt 5% *

Stellate Ganglion Block 5% *

Calmare Treatment 5% 1,500.00 

Clonazepam 5% * 120.00 120.00 120.00 

Nortriptyline 5% * 120.00 120.00 120.00 

Compound Topical Solution 5% * 840.00 840.00 840.00 

Personal Assistance 4% M 7,644.00 7,644.00 12,012.00 12,012.00 15,288.00 

Ancillary Services 4% 798.00 798.00 798.00 798.00 798.00 

Counseling 4% *

Case Mngt 4% 1,284.00 1,284.00 1,284.00 1,284.00 1,284.00 

PT Eval 4% *

PT 4% *

Gym 4% 552.00 492.00 492.00 492.00 492.00 

Symptom Mngt Supplies 4% 50.00 50.00 50.00 50.00 50.00 

TENS 4% *

Pain and Suffering 175,000.00

Past Unreimbursable Expenses 1,511.34

PTA/KRA Lien 10,696.65

Annual Totals 12,798.00 201,565.99 17,166.00 17,303.72 20,579.72 

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 ($14,358.00), pain and suffering ($175,000.00), and past unreimbursable expenses ($1,511.34): $190,869.34.

As soon as practicable after entry of judgment, respondent shall make the following payment jointly to 

petitioner and the PTA/KRA, as reimbursement of the provider's lien: $10,696.65.

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.

In respondent's discretion, items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.