DECISION AWARDING DAMAGES1

LAURA D. MILLMAN, Special Master.

On January 27, 2012, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2006), alleging that her child, B.K., suffered neurological injuries as a result of the Measles-Mumps-Rubella ("MMR"), hepatitis A ("hep A"), and varicella vaccinations B.K. received on February 6, 2009. On September 4, 2012, respondent filed her Rule 4(c) Report, conceding that B.K. suffered a Table encephalopathy and recommending compensation.

On October 7, 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:

State of Arkansas Medicaid Office of Policy and Legal Services Arkansas Department of Human Services P.O. Box 1437, Slot S260 Little Rock, AR 72203-1437 Medicaid Case No: 148862 Attn: Ms. Angie Foster.

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

Respondent engaged life care planner Laura Fox, MSN, RN, CNCLP, and petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of B.K.'s future vaccine-injury related needs. For the purposes of this proffer, the term "vaccine related" is as described in respondent's Rule 4(c) Report filed September 4, 2012. All items of compensation either identified in the joint life care plan are illustrated by the chart entitled Appendix A: Items of Compensation for B.K., attached hereto as Tab A.1 Respondent proffers that B.K. 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 Future Earnings

The parties agree that based upon the evidence of record, B.K. will not be gainfully employed in the future. Therefore, respondent proffers that B.K. should be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for B.K.'s lost future earnings is $800,000.00. Petitioner agrees.

C. Pain and Suffering

Respondent proffers that B.K. should be awarded $238,980.47 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 her expenditure of past unreimbursable expenses related to B.K.'s vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $7,506.60. Petitioner agrees.

E. Medicaid Lien

Respondent proffers that B.K. should be awarded funds to satisfy the State of Arkansas Medicaid lien in the amount of $165,066.70, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Arkansas may have against any individual as a result of any Medicaid payments the State of Arkansas has made to, or on behalf of, B.K. 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 February 6, 2009, under Title XIX of the Social Security Act.

II. Form of the Award

The parties recommend that the compensation provided to B.K. 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:2

A. A lump sum payment of $1,164,147.29, representing compensation for life care expenses expected to be incurred during the first year after judgment ($125,166.82), lost future earnings ($800,000.00), and pain and suffering ($238,980.47) in the form of a check payable to petitioner as guardian/conservator of B.K., for the benefit B.K. No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of B.K.'s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of B.K., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the estate of B.K. upon submission of written documentation of such appointment to the Secretary.

B. A lump sum payment of $7,506.60, representing compensation for additional past unreimbursable expenses, in the form of a check payable to petitioner, Misty Kelm.

C. A lump sum payment of $165,066.70, representing compensation for satisfaction of the State of Arkansas Medicaid lien, payable jointly to petitioner and

Petitioner agrees to endorse this payment to the State of Arkansas.

D. 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 life care plan, as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company4 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 (or any other party who is appointed) as guardian/conservator of the estate of B.K., only so long as B.K. 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 B.K. 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 B.K.'s death.

3. Guardianship

No payments shall be made from the annuity until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of B.K.'s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of B.K., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the estate of B.K. upon submission of written documentation of such appointment to the Secretary.

III. Summary of Recommended Payments Following Judgment

Appendix A: Items of Compensation for B.K.