# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-1150V

Filed: June 11, 2015

Unpublished

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

BARBARA BUDGAKE, *

*

Petitioner, * Damages Decision Based on Proffer;

* Influenza Vaccine (“Flu”); Shoulder

* Injury Related to Vaccine Administration

SECRETARY OF HEALTH * (“SIRVA ”); Special Processing Unit

AND HUMAN SERVICES, * (“SPU”)

*

Respondent. *

*

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

Lawrence Disparti, Disparti Law Group, PA, Holiday, FL, for petitioner.

Justine Walters, U.S. D epartment of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Vowell , Chief Special Master:

On November 25, 2014, Barbara Budgake filed a petition for compensation under

the National Vaccine Injury Compens ation Program, 42 U.S.C. §300aa-10, et seq.

, 2 [the

“Vaccine Act” or “Progr am”]. Petitioner alleges that she suffered a left shoulder injury as

a result of an influenza [“flu”] vaccination on J anuary 11, 2013. Petition at 1-3. The case

was assigned to the Special Processing Unit of the Office of Special Masters.

On April 9, 2015, I issued a ruling on ent itlement, finding petitioner entitled to

compensation for a shoulder injury related to vaccine administration [“SIRVA”]. On

June 10, 2015, respondent filed a proffer on aw ard of compensation [“Proffer”] detailing

compensation in the amount of $920.85 for past lost earnings, $100,000.00 for actual

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend

to post it on the United States Court of Federal Clai ms' website, in accordance with the E-Government

Act of 2002, Pub. L. No. 107-347, § 205, 116 Sta t. 2899, 2913 (codified as amended at 44 U.S.C. § 3501

note (2006)). 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, I agree that the identified mate rial fits within this definition, I 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2006).2 and projected pain and suffering, and $1,537.85 for past un-reimbursable expenses for

a total of $102,458.70 . Proffer at 1-3.

Pursuant to the terms stat ed in the attached Proffer, I award petitioner a lump

sum payment of $102, 458.70 in the form of a check payable to petitioner, Barbara

Budgake. This amount represents compensati on for 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

s/Denise K. Vowell

Denise K. Vowell

Chief 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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

)

BARBARA BUDGAKE

, )

)

Petitioner, )

) No. 14

- 1150 V

v. ) Chief Special Master Vowell

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

For the purposes of this proffer, the term “vaccine

- related” is as described in

Respondent’s Rule 4(c) Report filed on April 7 , 2015

.

A. Future Unreimbursable Expenses

The parties agree that based upon the evidence of record, petitioner will not require future

care for h er vaccine

- related injury . Therefore, respondent proffers that petitioner should be

awarded no future unreimbursable expenses under 42 U.S.C. § 300aa

- 15(a)( 1)

.

Petitioner agree s

.

B. Lost Earnings

The parties agree that based upon the evidence of record, petitioner has suffered a past

loss of earnings of $920.85. She will , however, continue to be gainfully employed in the future.

Therefore, resp ondent proffers that petitioner should be awarded actual lost earnings , but no t

anticipated loss of earnings

, as provided under 42 U.S.C. § 300aa

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

proffers that the appropriate award for petitioner’s lost earnings is $920.85. Petitioner agree s

.- 2

- C. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 10 0 ,000.00 in actual and

projected pain and suffering. This amount reflects that the award for projected pain and

suffering has been reduced to net pre sent value. See 42 U.S.C. § 300aa

- 15(a)(4). Petitioner

agrees.

D. Past Unreimbursable Expenses

Evidence supplied by petitioner documents h er expenditure of past unreimbursable

expenses related to h er vaccine

- related injury. Respondent proffers that petiti oner should be

awarded past unreimbursable expenses in the amount of $ 1,537.85

. Petitioner agrees.

E. Medicaid Lien

Petitioner represents that there are no outstanding Medicaid liens against h er

.

II. Form of the Award

The parties recommend that compensation pr ovided to petitioner should be made through

lump sum payments as described below and request that the Chief Special Master’s decision and

the Court’s judgment award the following: 1

A. A lump sum payment of $920.85, representing compensation for actual lost ea rnings,

in the form of a check payable to petitioner;

B. A lump sum payment of $ 100 ,000.00

, representing compensation for pain and

suffering, in the form of a check payable to petitioner ; and

C. A lump sum payment of $ 1,537.85

, representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioner

.- 3

- III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner: $ 102,458.70

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assi stant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Tort Branch, Civil Division

GLENN A. MACLEOD

Senior Trial Counsel

Torts Branch, Ci vil Division

s/ Justine Walters

JUSTINE WALTERS

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Dated: June 10 , 2015 Telephone: (202) 307

- 6393

1 Should petitioner die prior t o 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.