THOMAS L. GOWEN, Chief Special Master.
On October 16, 2015, petitioners filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On June 17, 2016, respondent filed his Rule 4(c) Report in which he concedes that petitioner is entitled to compensation in this case. Respondent's Report at 1. On June 27, 2016, a ruling on entitlement was issued, finding petitioner entitled to a presumption of causation. Counsel for the parties have worked diligently with their experts and have come to a resolution of damages. Their respective life care planners have agreed on future care issues and costs, pain and suffering, and petitioners' past unreimbursable expenses. On March 29, 2018, respondent filed a proffer on award of compensation ("Proffer") indicating petitioner should be awarded: (1) a lump sum payment of $263,722.30, representing compensation for pain and suffering and life care expenses for Year One; (2) a lump sum payment of $16,500.00, representing compensation for past unreimbursable expenses; (3) a lump sum payment of $60,080.31, representing compensation for satisfaction of the State of Illinois Medicaid lien; and (4) an amount sufficient to purchase the annuity contract described in the Proffer. Proffer at 6.
Respondent represented in the Proffer that petitioner agrees with the proffered award. I have reviewed the proffer and do award damages in accord with it. The Proffer is incorporated herein and made a part hereof as Appendix A. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer.
The clerk of the court is directed to enter judgment in accordance with this decision.
On June 17, 2016, respondent filed his Rule 4(c) Report conceding entitlement in the above-captioned case. Special Master Gowen issued a Ruling on Entitlement on June 27, 2016, finding that petitioners were entitled to a presumption of causation. Specifically, petitioners' son, A.T., suffered an encephalopathy that met the criteria of the Vaccine Injury Table. A.T.'s encephalopathy manifested between five and fifteen days of his receipt of a measles-mumpsrubella vaccination, and there is not preponderant evidence that his condition was due to a factor unrelated to the vaccine.
Respondent submits the following recommendations regarding items of compensation to be awarded under the Vaccine Act:
Respondent engaged life care planner M. Virginia Walton, RN, MSN, FNP, CNLCP, and petitioners engaged Tresa Johnson, RN, BSN, to provide an estimation of A.T.'s future vaccine-injury related needs. For purposes of this proffer, the term "vaccine related" is as described in Respondent's Rule 4(c) Report, filed on June 17, 2016. 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 A.T., attached hereto as Tab A.
The parties agree that based upon the evidence of record, A.T. will likely be gainfully employed in the future. Therefore, respondent proffers that A.T. should not be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Petitioners agree.
Respondent proffers that A.T. should be awarded $218,500.00 in actual and projected pain and suffering. 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). Petitioners agree.
Evidence supplied by petitioners documents their expenditure of past unreimbursable expenses related to A.T.'s vaccine-related injury. Respondent proffers that petitioners should be awarded past unreimbursable expenses in the amount of $16,500.00. Petitioners agree.
Respondent proffers that A.T. should be awarded funds to satisfy a State of Illinois lien in the amount of $60,080.31, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Illinois may have against any individual as a result of any Medicaid payments that the State of Illinois has made to or on behalf of A.T. from the date of his eligibility for benefits through the date of judgment in this case as a result of his vaccine-related injury suffered on or about March 26, 2013, under Title XIX of the Social Security Act. Petitioners agree.
The parties recommend that the compensation provided to A.T. 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 $263,722.30, representing compensation for pain and suffering ($218,500.00) and life care expenses for Year One ($45,222.30), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the estate of A.T., for the benefit of A.T. No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of the estate of A.T. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.T., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.T. upon submission of written documentation of such appointment to the Secretary.
B. A lump sum payment of $16,500.00, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioners.
C. A lump sum payment of $60,080.31, representing compensation for satisfaction of the State of Illinois Medicaid lien, payable jointly to petitioners and to:
Petitioners agree to endorse this payment to the Illinois Department of Healthcare and Family Services.
D. An amount sufficient to purchase the annuity contract,
Respondent proffers that a four percent (4%) growth rate should be applied to all nonmedical 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. Petitioners agree.
Petitioners will continue to receive the annuity payments from the Life Insurance Company only so long as A.T. 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 A.T.'s death.
No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of A.T.'s estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.T., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.T. upon submission of written documentation of such appointment to the Secretary.
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 the court-appointed guardian(s)/ conservators(s) of the estate of A.T. for pain and suffering ($218,500.00) and Yr 1 life care expenses ($45,222.30): $263,722.30. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past un-reimbursable expenses: $16,500.00.
As soon as practicable after entry of judgment, respondent shall make the following payment to the Illinois Department of Healthcare and Family Services, as reimbursement of the state's Medicaid lien: $60,080.31. 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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
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 the court-appointed guardian(s)/ conservators(s) of the estate of A.T. for pain and suffering ($218,500.00) and Yr 1 life care expenses ($45,222.30): $263,722.30. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past un-reimbursable expenses: $16,500.00.
As soon as practicable after entry of judgment, respondent shall make the following payment to the Illinois Department of Healthcare and Family Services, as reimbursement of the state's Medicaid lien: $60,080.31. 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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
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 the court-appointed guardian(s)/ conservators(s) of the estate of A.T. for pain and suffering ($218,500.00) and Yr 1 life care expenses ($45,222.30): $263,722.30. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past un-reimbursable expenses: $16,500.00.
As soon as practicable after entry of judgment, respondent shall make the following payment to the Illinois Department of Healthcare and Family Services, as reimbursement of the state's Medicaid lien: $60,080.31. 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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
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.
