Not to be Published.
DECISION AWARDING DAMAGES1
BRIAN H. CORCORAN, Special Master.
On April 2, 2015, Adrian Chanderdat filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 ECF No. 1. Petitioner alleged that he suffered from a "disseminated varicella zoster infection with interstitial pneumonitis and postinflammatory pulmonary fibrosis resulting in respiratory failure and a lower extremity poly-neuropathy" as a result of receiving the varicella vaccination on July 25, 2012.
Thereafter, on August 24, 2015, Respondent filed her Rule 4(c) report indicating that after reviewing the facts of this case, as reflected in the petition and accompany documents, as well as the relevant medical literature regarding disseminated varicella infection, the medical personnel of the Division of Injury Compensation Programs ("DICP"), Department of Health and Human Services concluded that a preponderance of evidence establishes that the injuries Petitioner claims in the petition were caused-in-fact by the administration of his July 25, 2012, varicella vaccine, and that these injuries are not due to factors unrelated to the administration of the vaccine. ECF No. 12. Respondent also concluded that the statutory six month sequela requirement has been satisfied. Id. Accordingly, Respondent indicated Petitioner's disseminated varicella infection and its sequela are compensable as a "caused-in-fact" injury under the terms of the Act. Id. I subsequently issued an entitlement decision on September 1, 2015. ECF No. 13.
On May 24, 2016, Respondent filed a proffer proposing an award of compensation. ECF No. 24. I have reviewed the file, and based upon that review I conclude that the Respondent's proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The proffer awards:
• A lump sum payment of $1,402,899.84, in the form of a check payable to Petitioner; and
• An amount sufficient to purchase the annuity contract described in Section II.B. of the proffer.
Proffer at III. These amounts represent compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which Petitioner is entitled.
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. 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.3
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The parties jointly engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, to provide an estimation of petitioner's future vaccine-injury related needs. See Respondent's Exhibit A. For the purposes of this proffer, the term "vaccine related" is as described in the respondent's Rule 4(c) Report, filed August 24, 2015. 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 Adrian Chanderdat, attached hereto as Tab A.1 Respondent proffers that Adrian Chanderdat 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, petitioner will suffer a loss of earnings in the future. Therefore, respondent proffers that petitioner 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 Adrian Chanderdat's lost earnings is $1,034,222.23. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $250,000.00 in actual pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents his expenditure of past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $6,928.67. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no Medicaid liens outstanding against him.
II. Form of the Award
The parties recommend that the compensation provided to petitioner 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 $1,402,899.84, representing compensation for life care expenses expected to be incurred during the first year after judgment ($111,748.94), lost earnings ($1,034,222.23), pain and suffering ($250,000.00), and past unreimbursable expenses ($6,928.67), in the form of a check payable to petitioner, Adrian Chanderdat.
B. 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 joint 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, Adrian Chanderdat, only so long as he 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 three percent (3%) 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: three percent (3%) 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 he, Adrian Chanderdat, 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 Adrian Chanderdat'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, Adrian Chanderdat: $1,402,899.84
B. An amount sufficient to purchase the annuity contract described above in section II.B.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
ANN D. MARTIN
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
TAB A
Appendix A: Items of Compensation for Adrian Chanderdat
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-4 Years 5-7 Year 8 Years 9-10
2016 2017-2019 2020-2022 2023 2024-2025
CIGNA 5% M 9,550.44 9,550.44
Medicare Part A Deductible 5% 1,288.00 1,288.00
Medicare Part B Premium 5% M 1,258.80 1,258.80
Medicare Part B Deductible 5% * 166.00 166.00
Medicare Supp C 5% M
Medicare Part D 5% M 7,797.20 7,797.20
BCBS Premium 5% M 5,495.16 5,495.16 5,495.16
BCBS MOP 5% 2,000.00 2,000.00 2,000.00
Primary Care 5% *
Kidney Transplant Center 5% *
Nephrologist 5% *
Vascular Surgery 5% *
ENT 5% *
Neurologist 5% *
Pain Mngt 5% *
EMG 5% *
MRI 5% *
CT Scan 5% *
Lab Testing 5% *
Renal Function Test 5% *
Pre-op Testing for Transplant 5% *
Post Transplant Testing 5% *
Gabapentin 5% *
Trileptal 5% *
Sensipar 5% *
Relistor 5% *
Oxycodone ER 5% *
Renvela 5% *
Sucralfate 5% *
Prevacid 5% *
Oxycodone 5% *
Ammonia Lactate 3% 71.58 71.58 71.58 71.58 71.58
Reglan 5% *
Domperidon 3% 150.00 150.00 150.00 150.00 150.00
Lasix 5% *
PT Eval 3% *
PT 3% * 540.00
OT Eval 3% *
OT 3% *
Psych Counseling 3% *
Trach Cleaning Supplies 3% *
Trach Mask/Collar 3% *
Sterile Water 3% *
Corrugated Tubing 3% *
Humidifcation/O2 3% *
Lift Chair 3% * 369.00 619.00
Hand Held Shower 3% 34.54 34.54
Elevated Toilet Seat 3% 151.08 151.08
Shower Chair 3% 86.98 86.98
Walker 3% 189.00 189.00
Manual WC 3% 369.28 369.28
Reacher 3% 25.16 25.16
Urinal 3% 71.88 71.88 71.88 71.88 71.88
Electric Scooter 3%
Scooter Batteries 3%
Scooter Maint 3%
Scooter Lift 3%
Renal Transplant Surgery 5% *
Revisions to A-V Fistula 5% *
Trach Surgery 5% *
Home Health Care 3% M 80,300.00 80,300.00 80,300.00 80,300.00 80,300.00
Ramping 0% 5,000.00
Stair Lift 3% 4,250.00
Lift Batteries 3% 80.00 26.67 26.67 26.67 26.67
Lost Future Earnings 1,034,222.23
Pain and Suffering 250,000.00
Past Unreimbursable Expenses 6,928.67
Annual Totals 1,402,899.84 100,680.57 88,115.29 89,590.33 88,115.29
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 ($111,748.94), lost earnings ($1,034,222.23), pain and suffering ($250,000.00), and past unreimbursable
expenses ($6,928.67): $1,402,899.84.
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 Adrian Chanderdat
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 16-20 Year 21 Year 22 Years 23-27 Year 28
2031-2035 2036 2037 2038-2042 2043
CIGNA 5% M
Medicare Part A Deductible 5%
Medicare Part B Premium 5% M
Medicare Part B Deductible 5% *
Medicare Supp C 5% M
Medicare Part D 5% M
BCBS Premium 5% M 5,495.16 5,495.16 5,495.16 5,495.16 5,495.16
BCBS MOP 5% 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00
Primary Care 5% *
Kidney Transplant Center 5% *
Nephrologist 5% *
Vascular Surgery 5% *
ENT 5% *
Neurologist 5% *
Pain Mngt 5% *
EMG 5% *
MRI 5% *
CT Scan 5% *
Lab Testing 5% *
Renal Function Test 5% *
Pre-op Testing for Transplant 5% *
Post Transplant Testing 5% *
Gabapentin 5% *
Trileptal 5% *
Sensipar 5% *
Relistor 5% *
Oxycodone ER 5% *
Renvela 5% *
Sucralfate 5% *
Prevacid 5% *
Oxycodone 5% *
Ammonia Lactate 3% 71.58 71.58 71.58 71.58 71.58
Reglan 5% *
Domperidon 3% 150.00 150.00 150.00 150.00 150.00
Lasix 5% *
PT Eval 3% *
PT 3% *
OT Eval 3% *
OT 3% *
Psych Counseling 3% *
Trach Cleaning Supplies 3% *
Trach Mask/Collar 3% *
Sterile Water 3% *
Corrugated Tubing 3% *
Humidifcation/O2 3% *
Lift Chair 3% * 619.00
Hand Held Shower 3% 34.54 4.93 4.93
Elevated Toilet Seat 3% 151.08 21.58 21.58
Shower Chair 3% 86.98 12.43 12.43
Walker 3% 189.00 27.00 27.00
Manual WC 3% 369.28 52.75 52.75
Reacher 3% 25.16 3.59 3.59
Urinal 3% 71.88 71.88 71.88 71.88 71.88
Electric Scooter 3% 1,829.00
Scooter Batteries 3% 174.86
Scooter Maint 3% 156.77
Scooter Lift 3% 1,360.00
Renal Transplant Surgery 5% *
Revisions to A-V Fistula 5% *
Trach Surgery 5% *
Home Health Care 3% M 80,300.00 80,300.00 80,300.00 80,300.00 80,300.00
Ramping 0%
Stair Lift 3% 4,250.00 425.00 425.00 425.00
Lift Batteries 3% 26.67 26.67 26.67 26.67 26.67
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 88,115.29 92,365.29 90,015.33 88,662.57 92,183.20
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 ($111,748.94), lost earnings ($1,034,222.23), pain and suffering ($250,000.00), and past unreimbursable
expenses ($6,928.67): $1,402,899.84.
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 Adrian Chanderdat
Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 37-42 Year 43 Years 44-Life
2052-2057 2058 2059-Life
CIGNA 5% M
Medicare Part A Deductible 5%
Medicare Part B Premium 5% M
Medicare Part B Deductible 5% *
Medicare Supp C 5% M 2,268.00 2,268.00
Medicare Part D 5% M 7,797.20 7,797.20
BCBS Premium 5% M 5,495.16
BCBS MOP 5% 2,000.00
Primary Care 5% *
Kidney Transplant Center 5% *
Nephrologist 5% *
Vascular Surgery 5% *
ENT 5% *
Neurologist 5% *
Pain Mngt 5% *
EMG 5% *
MRI 5% *
CT Scan 5% *
Lab Testing 5% *
Renal Function Test 5% *
Pre-op Testing for Transplant 5% *
Post Transplant Testing 5% *
Gabapentin 5% *
Trileptal 5% *
Sensipar 5% *
Relistor 5% *
Oxycodone ER 5% *
Renvela 5% *
Sucralfate 5% *
Prevacid 5% *
Oxycodone 5% *
Ammonia Lactate 3% 71.58 71.58 71.58
Reglan 5% *
Domperidon 3% 150.00 150.00 150.00
Lasix 5% *
PT Eval 3% *
PT 3% *
OT Eval 3% *
OT 3% *
Psych Counseling 3% *
Trach Cleaning Supplies 3% *
Trach Mask/Collar 3% *
Sterile Water 3% *
Corrugated Tubing 3% *
Humidifcation/O2 3% *
Lift Chair 3% * 369.00 52.71
Hand Held Shower 3% 4.93 4.93 4.93
Elevated Toilet Seat 3% 21.58 21.58 21.58
Shower Chair 3% 12.43 12.43 12.43
Walker 3% 27.00 27.00 27.00
Manual WC 3% 52.75 52.75 52.75
Reacher 3% 3.59 3.59 3.59
Urinal 3% 71.88 71.88 71.88
Electric Scooter 3% 261.29 261.29 261.29
Scooter Batteries 3% 87.43 87.43 87.43
Scooter Maint 3% 156.77 156.77 156.77
Scooter Lift 3% 136.00 136.00 136.00
Renal Transplant Surgery 5% *
Revisions to A-V Fistula 5% *
Trach Surgery 5% *
Home Health Care 3% M 80,300.00 80,300.00 80,300.00
Ramping 0%
Stair Lift 3% 425.00 425.00 425.00
Lift Batteries 3% 26.67 26.67 26.67
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 89,304.06 92,243.10 91,926.81
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 ($111,748.94), lost earnings ($1,034,222.23), pain and suffering ($250,000.00), and past unreimbursable
expenses ($6,928.67): $1,402,899.84.
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.
