NORA BETH DORSEY, Special Master.
On October 14, 2011, Audrey McElroy ("petitioner") filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.
On April 2, 2012, respondent filed a Rule 4(c) Report stating that there "is insufficient scientific evidence to support a causal relationship between influenza vaccine and vasculitis," and thus "compensation is not appropriate in this case." Respondent's Report at 8. However, the report also indicated that "respondent will not expend further resources to contest entitlement in this matter" and recommended that "future proceedings be scheduled to determine the type and amount of compensation that should be awarded in this case with respect to petitioner's condition."
The Special Master assigned to this case at the time issued a Ruling on Entitlement on April 13, 2012, finding that petitioner provided sufficient evidence to issue a ruling in her favor. A damages order was entered on April 20, 2012.
On September 19, 2014, respondent filed a Proffer on Award of Compensation ("Proffer"). 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 petitioner:
Petitioner agrees to endorse this payment to the Georgia Department of Community Health.
Proffer ¶ II.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court
Respondent engaged life care planner
The parties agree that based upon the evidence of record, Audrey McElroy has not suffered a loss of earnings. Therefore, respondent proffers that Audrey McElroy should not be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
Respondent proffers that Audrey McElroy should be awarded $200,000.00 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.
Evidence supplied by petitioner documents Audrey McElroy'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 $6,467.99. Petitioner agrees.
Respondent proffers that Audrey McElroy should be awarded funds to satisfy the State of Georgia lien in the amount of $633.32, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Georgia may have against any individual as a result of any Medicaid payments the State of Georgia has made to, or on behalf of, Audrey McElroy 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 November 6, 2008, under Title XIX of the Social Security Act.
The parties recommend that the compensation provided to Audrey McElroy 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:
A. A lump sum payment of $223,039.45, representing compensation for life care expenses expected to be incurred during the first year after judgment ($16,571.46), pain and suffering ($200,000.00), and past unreimbursable expenses ($6,467.99), in the form of a check payable to petitioner, Audrey McElroy.
B. A lump sum payment of $633.32, representing compensation for satisfaction of the State of Georgia Medicaid lien, payable jointly to petitioner and
Petitioner agrees to endorse this payment to the Georgia Department of Community Health.
C. An amount sufficient to purchase an annuity contract,
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.
Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as she, Audrey McElroy, 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 Audrey McElroy's death.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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 ($16,571.46), pain and suffering ($200,000.00), and past unreimbursable expenses ($6,467.99): $223,039.45. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the Georgia Department of Community Health, as reimbursement of the state's Medicaid lien: $633.32. 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.
