Judges: Nora Beth Dorsey
Filed: May 29, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0919V Filed: March 29, 2019 UNPUBLISHED ANITA JAVORSKI, Petitioner, v. Special Processing Unit (SPU); Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Guillain- HUMAN SERVICES, Barre Syndrome (GBS) Respondent. Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0919V Filed: March 29, 2019 UNPUBLISHED ANITA JAVORSKI, Petitioner, v. Special Processing Unit (SPU); Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Guillain- HUMAN SERVICES, Barre Syndrome (GBS) Respondent. Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0919V
Filed: March 29, 2019
UNPUBLISHED
ANITA JAVORSKI,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Guillain-
HUMAN SERVICES, Barre Syndrome (GBS)
Respondent.
Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On July 7, 2017, 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 alleges that she suffered Guillain- Barré Syndrome (“GBS”) as a result
of an influenza (“flu”) vaccine that she received on October 19, 2015. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On April 16, 2018, a ruling on entitlement was issued, finding petitioner entitled to
compensation for GBS. On March 28, 2019, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded all items of
compensation set forth in the life care plan and illustrated by the chart attached to the
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
2National 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).
Proffer at Tab A. Proffer at 1. 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 compensation:
1. A lump sum payment of $154,594.00, representing compensation for life care
expenses expected to be incurred during the first year after judgment
($14,594.00), and pain and suffering ($140,000.00), in the form of a check
payable to petitioner, Anita Javorski.
2. An amount sufficient to purchase an annuity contract subject to the
conditions described in the Proffer to provide payment as described in the
Proffer, for the life care items contained in the life care plan and illustrated
in the chart filed as an attachment (Tab A) to the Proffer, beginning with
compensation for Year Two (on the first year anniversary of the date of the
judgement) and all subsequent years, paid to the life insurance company
from which the annuity will be purchased. To clarify, the annuity will cover
all items of compensation set forth in the life care plan and illustrated in the
chart attached to the Proffer at Tab A, except those items of compensation
for which payment will be made under #1 above.
This amount represents compensation for all damages that would 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/Nora Beth Dorsey
Nora Beth Dorsey
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ANITA JAVORSKI,
Petitioner,
v. No. 17-919V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The parties engaged life care planner Shelly Kinney, MSN, RN, CNLCP, CCM, to
provide an estimation of Anita Javorski’s future vaccine-injury related needs. For the purposes
of this proffer, the term “vaccine related” is as described in the respondent’s Rule 4(c) Report,
filed April 11, 2018. Based on respondent’s Rule 4(c) Report, the Chief Special Master found
petitioner entitled to compensation on April 16, 2018. All items of compensation identified in
the joint life care plan are supported by the evidence, and are illustrated by the chart entitled
Appendix A: Items of Compensation for Anita Javorski, attached hereto as Tab A. 1 Respondent
proffers that Anita Javorski should be awarded all items of compensation set forth in the joint 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 joint 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.
-1-
B. Lost Earnings
The parties agree that based upon the evidence of record, Anita Javorski has not suffered
a past loss of earnings and is not likely to suffer a loss of earnings in the future. Therefore,
respondent proffers that Anita Javorski should not be awarded lost future 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 Anita Javorski should be awarded $140,000.00 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
Petitioner represents that she has not incurred past unreimbursable expenses related to her
vaccine-related injury.
II. Form of the Award
The parties recommend that the compensation provided to Anita Javorski 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 $154,594.00, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($14,594.00), and pain and
suffering ($140,000.00), in the form of a check payable to petitioner, Anita Javorski.
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.
-2-
B. 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 joint 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,
Anita Javorski, only so long as Anita Javorski 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 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
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;
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.
-3-
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, Anita Javorski, 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 Anita Javorski’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, Anita Javorski: $154,594.00
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
-4-
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/Colleen C. Hartley
COLLEEN C. HARTLEY
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) 616-3644
Dated: March 28, 2019
-5-
Appendix A: Items of Compensation for Anita Javorski Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Years 7-Life
2019 2020-2023 2024 2025-Life
Tricare for Life Supplement 5%
Medicare Part B Deductible 5% *
Primary Care Physician 5% *
Urologist 5% *
Pulmonologist 5% *
Neurologist 5% *
Lab Tests 5% *
Physical Therapy 5% *
Counseling 4% *
Vitamin D 4% *
Toviaz 5% *
Flonase 4% *
CellCept 5% *
Prednisone 5% *
Abscorbic Acid 4% *
Allegra 4% *
Multi Vitamin 4% *
Walker 4% *
Scooter 4% *
Scooter Carrier 4% *
Shower Chair 4% *
Counter Height Swivel Stool 4% 182.00 12.13 12.13 12.13
Lift Recliner 4% * 670.50 67.05
Toilet Riser 4% *
Utility Handles 4% * 16.00
Hand Held Shower 4% 22.50 2.25
Stair Lift 4% * 4,000.00
Personal Services 4% 875.00
Ancillary Services 4% M 2,925.00 2,925.00 2,925.00 2,925.00
Ancillary Services 4% M 3,536.00 3,536.00 3,536.00 3,536.00
Ancillary Services 4% M 2,040.00 2,040.00
Case Management 4% 1,020.00
Pain and Suffering 140,000.00
Annual Totals 154,594.00 8,513.13 7,166.13 6,542.43
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 ($14,594.00) and pain and suffering ($140,000.00): $154,594.00.
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.
