# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 18 - 930 V UNPUBLISHED

DONNA CARMI CHAEL ,

Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran
Filed: September 10, 2020 Special Processing Unit (SPU); Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Guillain

Barre Syndrome (GBS)

Randall G. Knutson , Knutson & Casey Law Firm, Mankat o , MN , for petitioner. Linda Sara Renzi

, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1 On June 28, 20 18 , Donna Carmichael 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 alleges that s he suffered Guill ain Barre Syndrome (GBS) after receiving an infl uenza vacc ination on O c tober 16, 2016

. Petition at 1

. Petitioner further alleges she received the vaccination in the Uni ted States, experience d sym ptoms of GBS more than three days after, and within six weeks of vaccination, she suffered the residual effects or complications of her i llness for mo re tha n six months . Petition at 1, 3

. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 10, 20 19 , a ruling on entitlement was issued , finding P etitioner entitled to compensation for GBS . On September 3, 20 20 , R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded all items of compensation set forth in the life care plan and illustrated by the chart attached at Tab A

.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the decision will be available to anyone with access to the internet. 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 material 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 Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

Proffer at 1

- 2

. In the Proffer, R espondent represented that P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find that P etitioner is entitled to an award as stated in the Proffer

. Proffer at 1

- 2

. In the Proffer, R espondent represented that P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find that P etitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award P etitioner the following compensation:
1. A lump sum payment of $ 539,812.21 , representing compensation for life care expenses expected to be incurred during the first year after judgment ($ 7,201.51 ), lost earnings ($ 338,447.64 ), pain and suffering ($ 1 50,000.00), and past unreimbursable expenses ($ 44,163.06 ), in the form of a check payable to P etitioner , Donna Carmichael

. 2. A lump sum payment of $ 59,595.99 , representing compensation for sati sfaction of a Texas Medicaid & Healthcare Partnership Medicaid lien , payable jointly to Petitioner and TMHP - Me dicaid , and mailed to:
TMHP TPL

- Tort Department Attn: Tort Receivables P.O. Box 202948 Austin, TX 78720

- 2948 Client ID: 513541157 TMHP Case Number: 223082946280818
3. An amount sufficient to pur chase an annuity contract, subject to the conditions described in the P roffer, that will provide payments for the life care items contained in the life care plan, as illustrated by the chart at Tab A, beginning with compensation for Year Two (on the first anniversary of the date of the judgment) and all subsequent years, paid to the life insurance company from which the annuity will be purchased.
This amount represents compensation for all damages that w ould be available under § 15 (a)

. The clerk of the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 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

DONNA CARMICHAEL , Petitioner,

v. S ECRETARY OF HEALTH AND HUMAN SERVICES,
R espondent. No. 18-930V (ECF) Chief Special Master Corc oran

RE SPONDENT ’ S PROFFER ON AWARD OF COMPENSATION
On June 28, 2018, Donna Carmichael (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleg ing that s he suffered Guillain

- Barré Syndrome (“GBS”) as a result of an influenza (“flu”) vaccine s he received on October 17, 2016. Petition at 1. On May 17, 2019 , the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c) Report

conce ding that petitioner suffered the Table injury of GBS following a flu vaccine within the Table time period , and is entitled to compensation. On Ju ne 10, 2019, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF 22 ; E C F 24. I. Items of Compensation

A. Life Care Items
R espondent engaged life care planner Laura E. Fox, MSN, BSN, RN, CLCP, and petitioner engaged Amy MacKenzie, PhD, RN, CLCP, to provide an estimation of petitioner ’s
future vaccine- injury related need s. For the purposes of this proffer, the term “vaccine related” is as described in the respondent’s Rule 4(c) Report. All items of compensation identified in the2 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. life care plan a re supported b y t he evidence, and are illustrated b y t he chart ent itled Appe ndix A :
Items of C ompensation for Donna Carmichael, at tached h ereto as T ab A

. 1 Respondent pr offers that petitioner should be a warded all i tems of c ompensation set f orth in the life c are pl an and
illustrated b y t he chart

at tached at

T ab A

. Petitioner

a grees.
B

. Lost E arnings
The pa rties a gree t hat ba sed upon the e vidence of record, Donna C armichael ha s s uffered past l oss of e arnings a nd will s uffer a l oss of earnings i n the f uture. Therefore, respondent proffers t hat pe titioner s hould be a warded lost e arnings a s pr ovided under t he V accine A ct, 42 U.S.C. § 300aa- 15(a)(3)(A). Respondent pr offers that t he appropriate a ward for D onna Carmichael ’s l ost e arnings i s $338,447.64. Petitioner a grees. C. Pain and Suffering Respondent pr offers t hat petitioner should be a warded $150,000.00 in actual a nd projected pai n and suffering. This a mount r eflects t hat a ny award for p rojected pai n and suffering ha s b een reduced to net pr esent v alue. See 42 U.S.C. § 300aa- 15(a)(4). Petitioner

agrees.
D. Past U nreimbur sable Expenses
Evidence s upplied by pe titioner doc uments he r expenditure of pa st unr eimbursable

expenses r elated t o he r vaccine -related injury. Respondent pr offers t hat pe titioner s hould be awarded past unr eimbursable e xpenses i n the a mount of $44,163.06. Petitioner a grees.3 II. Form of the Award The parties recommend that the compensation provided to petitioner s hould b e 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: 2 A. A lump sum payment of $539,812.21, representing compensation for life care expenses expected to be incurred during the first year after judgment ($7,201.51), lost earnings ($338,447.64), pain and suffering ($150,000.00), and past unreimbursable expenses ($ 44,163.06), in the form of a check payable to petitioner, D onna Carmichael

. B. A lump sum payment of $59,595.99, representing compensation for satisfaction of a Texas Medicaid & Healthcare Partnership Medicaid lien, payable jointly to petitioner and
T MHP

- Medicaid , and mailed to:

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. E. Medicaid L ien Respondent pr offers t hat petitioner s hould be a warded funds t o satisfy a l ien in the

amount of $59,595.99, w hich represents f ull s atisfaction of a ny r ight of s ubrogation, assignment, claim, l ien, or

caus e of a ctio n the Texas M edicaid & H ealthcare Partnership may h ave against

any i ndividual a s a r esult of a ny M edicaid payments t he Texas M edicaid & Healthcare Partnership has m ade t o or on behalf o f pe titioner f rom t he da te of h er eligibility f or be nefits through the date of

j udgment i n t his cas e as a result of he r va ccine relate d injury s uffered on or about October 17, 2016, under T itle XIX o f t he Social S ecurity A ct.4 Pe titioner agrees to endorse this payment to TMHP

- Medicaid

. C. A n 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 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,
Donna Carmichael , only so long as petition er 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,

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. Mood y's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. St andard 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. TMHP TP L

- Tort

D epartment Attn: T ort

R eceivables P.O. Box 202948 Austin, TX 78720- 2948 Client ID: 513541157 TMHP C ase N umber: 22 30829462808185 3. Gua rdianship Petitioner is a competent adult. Evidence of guardianship is not required in this case.
III. Summary of Recommended Payments Following Judgment
A. Lum p Sum paid to petitioner, Donna Carmichael : $539,812.21
B. Me dicaid lie n: $ 59,595.99
C. An a mount sufficient to purchase the annuity contract d escribed above in section II.C. quarterly, annual or ot her i nstallments. The “ annual a mounts” set f orth i n t he chart at

T ab A
describe onl y t he t otal yearly s um t o be p aid to petitioner a nd do not r equire t hat t he pa yment be
made in one a nnual installment.
1. Growth R ate Respondent pr offers t hat a four percent ( 4%) growth rate s hould be a pplie d to all nonmedical life c are ite ms, a nd a f ive pe rcent ( 5%) growth rate s hould be a pplied to all m edical l ife

care i tems. Thus, the b enefits i llustrated in the c hart a t T ab A t hat a re t o be pa id through annuity payments s hould grow a s f ollows: four percent

( 4%) c ompounde d annually from t he da te of judgment f

or non -medical i tems, and five pe rcent ( 5%) c ompounde d annually f rom t he d ate of judgment for m edical items. Petitionera grees.
2. Life -contingent a nnuity
Petitioner w ill c ontinue t o receive t he a nnuity pa yments f rom t he Life Insurance Company onl y s o long as she, D onna Carmichael , is a live a t the time tha t a particularp ayment is
due. Written notice s hall be pr ovided to the S ecretary o f H ealth and Human Services a nd the
Life Insurance C ompany within twenty ( 20) d ays of Donna Carmichael ’s death.6 Respectfully submitted,
E THAN P. DAVIS Acting Assistant Attorney General
C . SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division
C ATHARINE E. REEVES Deputy Director Torts Branch, Civil Division
AL EXIS B . BABCOCK Assistant Director Torts Branch, Civil Division
s/ Linda S. Renzi LI NDA S. RENZI Senior Tr ial Counsel Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4133
D ated: September 3, 2020Appendix A: Items of Compensation for Donna Carmichael Page 1 of 1

ITEMS OF COMPENSATION G.R. * M Lump Sum Compensation Year 1 Compensation Years 2-11 Compensation Years 12-15 Compensation Years 16-Life 2020 2021-2030 2031-2034 2035-Life Medicare Part B Premium 5% M 1,735.20 1,735.20 1,735.20 Medicare Part B Deductible 5% 198.00 Medicare Adv 5% 504.00 504.00 504.00 Neurologist 5% * 180.00 90.00 90.00 Household Assistance 4% M 4,132.96 4,132.96 4,132.96 7,252.55 Gabapentin 5% * 67.66 67.66 Heated Socks 4% 50.00 Bathroom Safety Equip 4% 106.45 21.29 21.29 21.29 Life Alert 4% 399.24 399.24 399.24 399.24 Wheeled Walker 4% * 26.00 5.20 5.20 5.20 Lost Earnings 338,447.64 Pain and Suffering 150,000.00 Past Unreimbursable Expenses 44,163.06 Medicaid Lien 59,595.99 Annual Totals 599,408.20 6,955.55 6,887.89 7,876.28 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 ($7,201.51), lost earnings ($338,447.64), pain and suffering ($150,000.00), and past unreimbursable expenses ($44,163.06): $539,812.21. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and TMHP-Medicaid, as reimbursement of the state's Medicaid lien: $59,595.99. 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.