Filed: Feb. 28, 2014
Latest Update: Feb. 28, 2014
Summary: LAURA D MILLMAN, Special Master. DECISION AWARDING DAMAGES 1 On April 8, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-10-34 (2012), alleging that she suffered subdeltoid bursitis and adhesive capsulitis as a result of receiving influenza ("flu") vaccine on September 25, 2011. Pet., April 8, 2013, ECF No. 1. On July 17, 2013, respondent filed her Rule 4(c) Report, in which she conceded that petitioner's alleged injury is consistent with
Summary: LAURA D MILLMAN, Special Master. DECISION AWARDING DAMAGES 1 On April 8, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-10-34 (2012), alleging that she suffered subdeltoid bursitis and adhesive capsulitis as a result of receiving influenza ("flu") vaccine on September 25, 2011. Pet., April 8, 2013, ECF No. 1. On July 17, 2013, respondent filed her Rule 4(c) Report, in which she conceded that petitioner's alleged injury is consistent with s..
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LAURA D MILLMAN, Special Master.
DECISION AWARDING DAMAGES1
On April 8, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that she suffered subdeltoid bursitis and adhesive capsulitis as a result of receiving influenza ("flu") vaccine on September 25, 2011. Pet., April 8, 2013, ECF No. 1. On July 17, 2013, respondent filed her Rule 4(c) Report, in which she conceded that petitioner's alleged injury is consistent with shoulder injury related to vaccine administration ("SIRVA") and that petitioner's SIRVA was caused by the September 25, 2011, flu vaccination. Resp't's Vaccine Rule 4(c) Report, July 17, 2013, ECF No. 13.
On February 28, 2014, 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 petitioner:
a. a lump sum payment of $223,622.34, representing compensation for life care expenses expected to be incurred during the first year after judgment ($8,791.81), pain and suffering ($211,401.83), and past unreimbursable expenses ($3,428.70). The award shall be in the form of a check payable to petitioner, Rosalie Peck; and
b. an amount sufficient to purchase the annuity contract(s) subject to the conditions described in section II.B. of the attached proffer.
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
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner Linda Curtis, RN, MSN, CNLCP, and petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Rosalie Peck'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 July 17, 2013. All items of compensation identified in the parties' joint life care plan, filed on January 22, 2014, are supported by the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Rosalie Peck, attached hereto as Tab A.1 Respondent proffers that Rosalie Peck 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.
B. Lost Earnings
The parties agree that based upon the evidence of record, Rosalie Peck has not suffered a past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent proffers that Rosalie Peck should not 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 Rosalie Peck's lost earnings is $0.00. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Rosalie Peck should be awarded $211,401.83 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). Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Rosalie Peck'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 $3,428.70. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
II. Form of the Award
The parties recommend that the compensation provided to Rosalie Peck 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 $223,622.34, representing compensation for life care expenses expected to be incurred during the first year after judgment ($8,791.81), pain and suffering ($211,401.83), and past unreimbursable expenses ($3,428.70), in the form of a check payable to petitioner, Rosalie Peck.
B. An amount sufficient to purchase an annuity contract,2 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 company3 from which the annuity will be purchased.4 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, Rosalie Peck, only so long as Rosalie Peck 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, Rosalie Peck, 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 Rosalie Peck'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, Rosalie Peck: $223,622.34
B. An amount sufficient to purchase the annuity contract described above in section II. B.
