    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 18-0103V
                                        UNPUBLISHED


    M.A.,                                                    Chief Special Master Corcoran

                         Petitioner,                         Filed: July 28, 2020
    v.                                                       Refiled as Redacted: August 21, 2020

    SECRETARY OF HEALTH AND                                  Special Processing Unit (SPU);
    HUMAN SERVICES,                                          Damages Decision Based on Proffer;
                                                             Influenza (Flu) Vaccine; Shoulder
                        Respondent.                          Injury Related to Vaccine
                                                             Administration (SIRVA)


Jane Ann Morrow, Otorowski, Johnston, et. al, Bainbridge Island, WA, for petitioner.

Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.


                                DECISION AWARDING DAMAGES1

       On January 22, 2018, M.A. filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleges that he suffered shoulder injuries caused in fact by the influenza
vaccination he received on October 4, 2016. Petition at 1, ¶ 2. Petitioner further alleges
that he received the vaccination in the United States, continues to suffer the residual
effects of his injuries, and that neither he nor any other party has filed a civil action or
received compensation for his injuries alleged as vaccine caused. Id. at ¶¶ 2, 7, 11-12.
The case was assigned to the Special Processing Unit of the Office of Special Masters.

      On March 1, 2019, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for his shoulder injuries. On July 27, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded the following:


1
 When this decision was originally filed, I advised my intent to post it on the United States Court of Federal
Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b),
Petitioner filed a timely motion to redact certain information. This decision is being posted with Petitioner’s
name redacted to reflect his initials only. Except for those changes and this footnote, no other substantive
changes have been made. This decision will be posted on the court’s website with no further opportunity to
move for redaction.
2
  National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
        A. All items of compensation identified in the joint life care plan entitled Appendix
           A which is attached to the Proffer as Tab A;

        B. The amount of $95,000.00, representing compensation for Petitioner’s actual
           and projected3 pain and suffering; and

        C. The amount of $4,706.00, representing compensation for Petitioner’s actual
           unreimbursable expenses.

Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with the
proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an
award as stated in the Proffer.

        Pursuant to the terms stated in the attached Proffer, I award the following:

        A. A lump sum in the amount of $105,906.00, representing compensation in
           the amounts of $6,200.00 for life care expenses in the first year after
           judgment, $95,000.00 for actual pain and projected pain and suffering,
           and $4,706.00 for actual unreimburseable expenses in the form of a
           check payable Petitioner; and

        B. An amount sufficient to purchase the annuity contract as described in
           Section II.B. of the Proffer.

These amounts represent compensation for all damages that would be available under §
15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.4

IT IS SO ORDERED.


                                         s/Brian H. Corcoran
                                         Brian H. Corcoran
                                         Chief Special Master




3
 The Proffer states that the portion of this award representing Petitioner’s projected pain and suffering has
been reduced to the net present value. Proffer at 2; see § 15(f)(4)(A) (requiring a reduction to net present
value for future compensation being currently paid).
4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.


                                                     2
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                             OFFICE OF SPECIAL MASTERS


M              A           ,

                   Petitioner,                        No. 18-103V
                                                      Chief Special Master Corcoran
v.                                                    ECF

SECRETARY OF HEALTH AND
HUMAN SERVICES,

                   Respondent.


               RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

          On January 22, 2018, M       A       (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), alleging that he suffered shoulder injuries following administration of

an influenza vaccine he received on October 4, 2016. Petition at 1. On March 1, 2019, the

Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that

this case is appropriate for compensation under the terms of the Act for a Shoulder Injury

Resulting from Vaccine Administration (SIRVA) Table injury, and on March 1, 2019, the Court

issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27; ECF

No. 28.

I.        Items of Compensation

          A.       Life Care Items

          Respondent engaged life care planner Linda Curtis, RN MS, CNLCP, CCM, and

petitioner engaged Cloie B. Johnson, M.Ed., ABVE, CCM, to provide an estimation of

petitioner’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. All items of

compensation identified in the life care plan are supported by the evidence, and are illustrated by

the chart entitled Appendix A: Items of Compensation for M            A       , attached hereto as

Tab A. 1 Respondent proffers that petitioner should be awarded all items of compensation set

forth in the life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.

       B.      Pain and Suffering

       Respondent proffers that petitioner should be awarded $95,000.00 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. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

       C.      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 $4,706.00. Petitioner agrees.

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 $105,906.00, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($6,200.00), pain and



       1
         The chart at Tab A illustrates the annual benefits provided by the life care plan. The
annual benefit years run from the date of judgment up to the first anniversary of the date of
judgment, and every year thereafter up to the anniversary of the date of judgment.
       2
         Should petitioner die prior to entry of judgment, the parties reserve the right to move
the Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future lost earnings, and future pain and suffering.

                                                  2
suffering ($95,000.00), and past unreimbursable expenses ($4,706.00), in the form of a check

payable to petitioner, M       A       .

       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 life care plan,

as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 4 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,

M          A     only so long as petitioner 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.




       3
         In respondent’s discretion, respondent may purchase one or more annuity contracts
from one or more life insurance companies.
       4
          The Life Insurance Company must have a minimum of $250,000,000 capital and
surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company
must have one of the following ratings from two of the following rating organizations:

               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.


                                                 3
                       Respectfully submitted,

                       ETHAN P. DAVIS
                       Acting Assistant Attorney General

                       C. SALVATORE D’ALESSIO
                       Acting Director
                       Torts Branch, Civil Division

                       CATHARINE E. REEVES
                       Deputy Director
                       Torts Branch, Civil Division

                       ALEXIS B. BABCOCK
                       Assistant Director
                       Torts Branch, Civil Division

                       s/Linda S. Renzi
                       LINDA S. RENZI
                       Senior Trial Counsel
                       Torts Branch, Civil Division
                       U. S. Department of Justice
                       P.O. Box l46, Benjamin Franklin Station
                       Washington, D.C. 20044-0146
                       Tel: (202) 616-4133

Dated: July 27, 2020




                          5
                                      Appendix A: Items of Compensation for M              A                            Page 1 of 1

                                                         Lump Sum
                                                        Compensation Compensation        Compensation      Compensation
  ITEMS OF COMPENSATION              G.R.     *    M       Year 1      Years 2-5           Years 6-9       Years 10-Life
                                                            2020      2021-2024           2025-2028         2029-Life
Insurance MOP                         5%                    3,500.00     3,500.00
Medicare Supp F                       5%           M                                                             2,925.00
Psych Eval                            5%      *                                                  120.00
Physiatry Eval                        4%      *                                                  240.00
PT Eval                               4%      *                                                  180.00
Massage Therapy                       4%      *
Acupuncture                           4%      *
SPECT CT Scan                         5%      *
EMG/NCS                               5%      *
Ultrasound & EMG Guidance             5%      *
Therapeutic Ultrasound                5%      *
Microcurrent Electro-therapy          5%      *
Axillary Nerve Block                  5%      *
Ancillary Services                    4%           M         2,700.00         2,700.00         2,700.00          2,700.00
Pain and Suffering                                          95,000.00
Past Unreimbursable Expenses                                 4,706.00
Annual Totals                                             105,906.00          6,200.00         3,240.00          5,625.00
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 ($6,200.00), pain and suffering ($95,000.00), and past unreimbursable expenses ($4,706.00): $105,906.00.
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.
