# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14

- 1220 V

Filed: June 24, 2016

UNPUBLISHED

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

BRANDY ROJAS

, *

*

Petitioner, * Damages Decision B ased on Proffer;

v. * I nfluenza ;

* S houlder Injury ( “ SIRVA ” ) ;

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

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Samantha Travis, Bry an & Travis , PLLP, Kalispell, MT

, for petitioner.

Alexis Babcock , U

. S

. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey

, Chief Special Master:

On December 22, 2014

, p etitioner 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”)

vacc ination on October 29, 2013, petitioner suffered cause

- in

- fact injuries to her left

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

Syndrome

. Petit ion 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 S houlder I njury R elated to V accine A dministration ( “ SIRVA ” )

. On

June 24, 2016 , respondent filed a p roffer on a ward of compensation (“Proffer”)

1 Because this unpublished decision contains a reasoned explanatio n for the action in this case, the

undersigned intend s 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 agree s that the ident ified 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 Va ccine 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 un reimbursable medical expenses ; and

• $10,696.65 to satisfy a lien for se rvices rendered for her vaccine

- related injury by

Profession al 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

• A n amount su fficient 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 award s

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

paya ble 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# 9314 3 ;

• An amou nt sufficient to purchase the annuity contract described in the

Proffer Section II. C

. This amount represents all remaining elements of

compensation to which p etitioner 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. 1 4

- 1220 V

) Chief Special Master Dorsey

SECRETARY OF HEALTH AND HUMAN ) ECF

SERVICES, )

)

Respondent. )

)

RESPONDENT'S PROFFER ON AWARD OF COMPEN SATION

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 vaccine

injury related needs. For th e purposes of this proffer, the term “vaccine related” is as described

in the respondent’s Rul e 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 en titled

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. Petiti oner 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 anniver sary 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 shoul d 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 $ 1 75,000.00 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 outstandi ng 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 outst anding 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 pa yments as describ ed below,

and request that the Chief Special M aster’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 $ 10,69 6 .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 company 4 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 Compa ny: 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

- wh ich 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 t o petitioner,

Brandy Rojas , only so long as she 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 in monthly,

quarterly, annu al or other installments. The “annual amo unts” 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 app lied 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 are to be paid through annuity

payments should grow as follows: four p ercent ( 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

- C ontingent A nnuity

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

Company only so long as s he

, 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 withi n 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 C ompany 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 Co mpensation 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 s um paid to petitioner, Brandy Roja s : $ 190,869.34

B. PTA/KRA l ien 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

Princi pal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

CATHARIN E E. REEVES

Acting Deputy Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN

Senior Tri al 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 Statio n

Washington, D.C. 20044

- 0146

Telephone: (202) 616

- 7678

Dated: June 24

, 201 6Appendix 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 201,565.99 12,798.00 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), an d past unreimbursable expenses ($1,511.34): $190,869.34.

As soon as practicable after entry of judgment, re spondent 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 co lumn 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 indicat ed.