Not for Publication
DECISION AWARDING DAMAGES1
LAURA D. MILLMAN, Special Master.
On July 27, 2012, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza ("flu") vaccine administered on September 15, 2009 caused her neurologic injury. Pet. at ¶¶ 5, 6. Petitioner also received H1N1 influenza vaccine on October 23, 2009, which is not covered under the Vaccine Act during the 2009-2010 flu season.
On November 8, 2018, respondent filed Respondent's Proffer on Award of Compensation. The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole, the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to the terms stated in the attached proffer, the court awards:
a. a lump sum of $653,890.05, in the form of a check payable to petitioner representing compensation for life care expenses expected to be incurred during the first year after judgment ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unreimbursable expenses ($19,615.30);
b. a lump sum of $54,462.87, representing compensation for satisfaction of the State of Maryland Medicaid lien, payable jointly to petitioner and:
MD-DHMH
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, Maryland 21203
Re: Kimberly Payne, MA#: 46-904281-100
Attn: Sylvia Rose, Recoveries Officer
Petitioner agrees to endorse this payment to MD-DHMH; and
c. an amount sufficient to purchase an annuity contract.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On October 4, 2017, the Special Master issued a Ruling on Entitlement finding petitioner, Kimberly S. Thompson, entitled to compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as amended ("Vaccine Act" or "Act"). Respondent, the Secretary of Health and Human Services, now proffers that petitioner receive a compensation award consisting of the following, which represents compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled:
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and petitioner engaged Kay Hairston, BSN, RN, CCM, CLCP, to provide an estimation of Kimberly S. Thompson's future needs arising from her vaccine-related injury. For the purposes of this proffer, the term "vaccine-related injury" is as described in the Special Master's Ruling on Entitlement, filed October 4, 2017. 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 Kimberly S. Thompson, attached hereto as Tab A.1 Respondent proffers that Kimberly S. Thompson 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.
B. Lost Earnings
The parties agree that based upon the evidence of record, Kimberly S. Thompson has suffered past loss of earnings and will suffer a loss of earnings in the future as a result of her vaccine-related injury. Therefore, respondent proffers that Kimberly S. Thompson should be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for Kimberly S. Thompson's lost earnings is $345,526.82. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Kimberly S. Thompson should be awarded $235,000.00 in actual and projected pain and suffering for her vaccine-related injury. This amount reflects that the 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 Kimberly S. Thompson's 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 $19,615.30.
E. Maryland Medicaid Lien
Respondent proffers that Kimberly S. Thompson should be awarded funds to satisfy a State of Maryland lien in the amount of $54,462.87, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action that the State of Maryland may have against any individual as a result of any Medicaid payments the State of Maryland has made to, or on behalf of, Kimberly S. Thompson, from the date of her eligibility for benefits through the date of judgment in this case, as a result of her vaccine-related injury suffered on or about September 15, 2009, under Title XIX of the Social Security Act.
II. Form of the Award2
The parties recommend that the compensation provided to Kimberly S. Thompson should be 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:3
A. A lump sum payment of $653,890.05, representing compensation for life care expenses expected to be incurred during the first year after judgment ($53,747.93), lost earnings ($345,526.82), and pain and suffering ($235,000.00), in the form of a check payable to petitioner, Kimberly S. Thompson.
B. A lump sum payment of $54,462.87, representing compensation for satisfaction of the State of Maryland Medicaid lien, payable jointly to petitioner and:
MD-DHMH
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, Maryland 21203
Re: Kimberly Payne, MA#: 46-904281-100
Attn: Sylvia Rose, Recoveries Officer
Petitioner agrees to endorse this payment to MD-DHMH.
c. An amount sufficient to purchase an annuity contract,4 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 company5 from which the annuity will be purchased.6 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, Kimberly S. Thompson, only so long as Kimberly S. Thompson 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 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, Kimberly S. Thompson, 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 Kimberly S. Thompson'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, Kimberly S. Thompson: $653,890.05
B. Maryland Medicaid lien: $ 54,462.87
C. An amount sufficient to purchase the annuity contract described above in section II.C.
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/Voris E. Johnson, Jr.
VORIS E. JOHNSON, JR.
Senior Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4136
Dated: November 8, 2018
Appendix A: Items of Compensation for Kimberly S. Thompson
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Years 4-5 Year 6 Year 7 Years 8-10 Year 11
2018 2019 2020 2021-2022 2023 2024 2025-2027 2028
Medicare Part B Premium 5% M 1,608.00 1,608.00 1,608.00 1,608.00 1,608.00 1,608.00 1,608.00 1,608.00
Medicare Advantage Premium 5% M 936.00 936.00 936.00 936.00 936.00 936.00 936.00 936.00
Medicare Advantage MOP 5% 10,000.00 10,000.00 10,000.00 10,000.00 10,000.00 10,000.00 10,000.00 10,000.00
OOP Drug Costs 5% M 1,080.18 1,080.18 1,080.18 1,080.18 1,080.18 1,080.18 1,080.18 1,080.18
Primary Care 5% *
Mileage: PCP 4% 7.56 7.56 7.56 7.56 7.56 7.56 7.56 7.56
Neurologist 5% *
Mileage: Neurolgist 4% 116.10 116.10 116.10 116.10 116.10 116.10 116.10 116.10
Diagnostic/Serum Studies 5% *
Mileage: Diag./Serum Studies 4% 3.02 3.02 3.02 3.02 3.02 3.02 3.02 3.02
PM&R 4% *
Mileage: PM&R 4% 0.40 0.40 0.40 0.40 0.40 0.40 0.40 0.40
Urology 5% *
Mileage: Urology 4% 4.68 4.68 4.68 4.68 4.68 4.68 4.68 4.68
Surgery 5% *
Mileage: Surgery 4% 3.90 1.95 1.95 1.95 1.95 1.95 1.95 1.95
Surgical Infuse-a-port 5% *
Mileage: Surgical Infuse-a-port 4% 1.44 0.41 0.41 0.41 0.41 0.41 0.41 0.41
Opthalmology 5% *
Mileage: Opthalmology 4% 1.26 1.26 1.26 1.26 1.26 1.26 1.26 1.26
Podiatry 4% 200.00 200.00 200.00 200.00 200.00 200.00 200.00 200.00
Mileage: Podiatry 4% 5.98 5.98 5.98 5.98 5.98 5.98 5.98 5.98
ER 5% *
Ambulance 5% *
Hospitalization 5% *
Counseling 4% *
Mileage: Counseling 4% 81.87
Mileage: Suport Group 4% 4.97 4.97 4.97 4.97 4.97 4.97 4.97 4.97
Care Mngt 4% M 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00
Metoprolol 5% *
Ibuprofen 5% *
Tizanidine 5% *
Omeprazole 5% *
C-Pilocarpine 5% 165.00 165.00 165.00 165.00 165.00 165.00 165.00 165.00
Supplies for B-12 Inj 4% *
Incontinence Pads 4% 93.08 93.08 93.08 93.08 93.08 93.08 93.08 93.08
Compression Stockings 4% 179.18 179.18 179.18 179.18 179.18 179.18 179.18 179.18
Prescription Glasses 4% 582.50 291.25 291.25 291.25 291.25 291.25 291.25 291.25
IVIG 5% *
Mileage: IVIG 4% 22.64 22.64 22.64 22.64 22.64 22.64 22.64 22.64
Supplies for IVIG 5% *
Power Scooter 4% 1,743.00 249.00 249.00 249.00 249.00 249.00 249.00 249.00
Battery 4% 214.29 214.29 214.29 214.29 214.29 214.29 214.29 214.29
Scooter Car Carrier 4% 654.50 654.50
Callapsible Manual WC 4% *
Sit to Stand Recliner 4% 612.00 612.00
Shower Transfer Chair 4% 132.39 132.39 132.39
Bedside Commode 4% 155.64 155.64 155.64
Perching Stool 4% 141.00 141.00
Assist Pole 4% 175.12 175.12
Reachers 4% 50.10 50.10 50.10
AFOs 4% *
Orthopedic Shoe 4% 69.56 34.78 34.78 34.78 34.78 34.78 34.78 34.78
Pers. Emergency Resp. System 4% 515.40 515.40 515.40 515.40 515.40 515.40 515.40 515.40
PT Eval 4% *
Mileage: PT Eval 4% 1.69 1.69 1.69 1.69 1.69 1.69 1.69 1.69
OT Eval 4% *
Mileage: OT Eval 4% 1.69 1.69 1.69 1.69 1.69 1.69 1.69 1.69
PT 4% *
Mileage: PT 4% 40.61 40.61 20.30 20.30 6.77 6.77 6.77 6.77
OT 4% *
Mileage: OT 4% 20.30 20.30 20.30 6.77 6.77 6.77 6.77 6.77
Home OT Assess 4% 300.00
Assistive Tech Clinic 4% *
Mileage: Assistive Tech Clinic 4% 44.64 8.93 8.93 8.93 8.93 8.93 8.93 8.93
Seating & Equip Clinic 4% *
Mileage: Seating & Equip Clinic 4% 44.64 8.93 8.93 8.93 8.93 8.93 8.93 8.93
Fitness/Aquatic Program 4% M 612.00 612.00 612.00 612.00 612.00 612.00 612.00 612.00
Mileage: Fitness/Aquatic Program 4% 57.60 57.60 57.60 57.60 57.60 57.60 57.60 57.60
Personal Care Attendant 4% M 18,304.00 18,304.00 18,304.00 18,304.00 18,304.00 18,304.00 24,024.00 24,024.00
Cleaning Services 4% M 1,260.00 1,260.00 1,260.00 1,260.00 1,260.00 1,260.00 1,260.00 1,260.00
Home Mods 0% 7,500.00
Lost Earnings 345,526.82
Pain and Suffering 235,000.00
Past Unreimbursable Expenses 19,615.30
Medicaid Lien 54,462.87
Annual Totals 708,352.92 42,050.88 42,030.57 42,017.04 42,341.64 42,003.51 47,723.51 49,644.26
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 ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unreimbursable expenses ($19,615.30): $653,890.05.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the Maryland Medical Assistance Program, as reimbursement of the state's Medicaid lien: $54,462.87.
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.
Appendix A: Items of Compensation for Kimberly S. Thompson
Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 12 Years 13-20 Years 21-Life
2029 2030-2037 2038-Life
Medicare Part B Premium 5% M 1,608.00
Medicare Advantage Premium 5% M 936.00 936.00 936.00
Medicare Advantage MOP 5% 10,000.00 10,000.00 10,000.00
OOP Drug Costs 5% M 1,080.18 1,080.18 1,080.18
Primary Care 5% *
Mileage: PCP 4% 7.56 7.56 7.56
Neurologist 5% *
Mileage: Neurolgist 4% 116.10 116.10 116.10
Diagnostic/Serum Studies 5% *
Mileage: Diag./Serum Studies 4% 3.02 3.02 3.02
PM&R 4% *
Mileage: PM&R 4% 0.40 0.40 0.40
Urology 5% *
Mileage: Urology 4% 4.68 4.68 4.68
Surgery 5% *
Mileage: Surgery 4% 1.95 1.95 1.95
Surgical Infuse-a-port 5% *
Mileage: Surgical Infuse-a-port 4% 0.41 0.41 0.41
Opthalmology 5% *
Mileage: Opthalmology 4% 1.26 1.26 1.26
Podiatry 4% 200.00 200.00 200.00
Mileage: Podiatry 4% 5.98 5.98 5.98
ER 5% *
Ambulance 5% *
Hospitalization 5% *
Counseling 4% *
Mileage: Counseling 4%
Mileage: Suport Group 4% 4.97 4.97 4.97
Care Mngt 4% M 6,000.00 6,000.00 6,000.00
Metoprolol 5% *
Ibuprofen 5% *
Tizanidine 5% *
Omeprazole 5% *
C-Pilocarpine 5% 165.00 165.00 165.00
Supplies for B-12 Inj 4% *
Incontinence Pads 4% 93.08 93.08 93.08
Compression Stockings 4% 179.18 179.18 179.18
Prescription Glasses 4% 291.25 291.25 291.25
IVIG 5% *
Mileage: IVIG 4% 22.64 22.64 22.64
Supplies for IVIG 5% *
Power Scooter 4% 249.00 249.00 249.00
Battery 4% 214.29 214.29 214.29
Scooter Car Carrier 4% 65.45 65.45 65.45
Callapsible Manual WC 4% *
Sit to Stand Recliner 4% 61.20 61.20 61.20
Shower Transfer Chair 4% 26.48 26.48 26.48
Bedside Commode 4% 31.13 31.13 31.13
Perching Stool 4% 14.10 14.10 14.10
Assist Pole 4% 17.51 17.51 17.51
Reachers 4% 10.02 10.02 10.02
AFOs 4% *
Orthopedic Shoe 4% 34.78 34.78 34.78
Pers. Emergency Resp. System 4% 515.40 515.40 515.40
PT Eval 4% *
Mileage: PT Eval 4% 1.69 1.69 1.69
OT Eval 4% *
Mileage: OT Eval 4% 1.69 1.69 1.69
PT 4% *
Mileage: PT 4% 6.77 6.77 6.77
OT 4% *
Mileage: OT 4% 6.77 6.77 6.77
Home OT Assess 4%
Assistive Tech Clinic 4% *
Mileage: Assistive Tech Clinic 4% 8.93 8.93 8.93
Seating & Equip Clinic 4% *
Mileage: Seating & Equip Clinic 4% 8.93 8.93 8.93
Fitness/Aquatic Program 4% M 612.00 612.00
Mileage: Fitness/Aquatic Program 4% 57.60 57.60
Personal Care Attendant 4% M 24,024.00 27,456.00 27,456.00
Cleaning Services 4% M 1,260.00 1,260.00
Home Mods 0%
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Medicaid Lien
Annual Totals 47,949.40 49,773.40 47,843.80
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 ($53,747.93), lost earnings ($345,526.82), pain and suffering ($235,000.00), and past unreimbursable expenses ($19,615.30): $653,890.05.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the Maryland Medical Assistance Program, as reimbursement of the state's Medicaid lien: $54,462.87.
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.
