        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-0115V
                                      Filed: May 23, 2016
                                          Unpublished

****************************
ADELE PHILLIPS,                           *
                                          *
                      Petitioner,         *      Damages Decision Based on Proffer;
v.                                        *      Influenza (“flu”) Vaccine; Shoulder
                                          *      Injury Related to Vaccine Administration
SECRETARY OF HEALTH                       *      (“SIRVA”); Complex Regional Pain
AND HUMAN SERVICES,                       *      Syndrome (“CRPS”); Special
                                          *      Processing Unit (“SPU”)
                      Respondent.         *
                                          *
****************************
Brian L. Cinelli, Marcus & Cinelli, LLP, Williamsville, NY, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

        On February 4, 2015, Adele Phillips (“petitioner”) 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 alleged that as a result of an influenza (“flu”)
vaccination on August 13, 2013, she suffered from Complex Regional Pain Syndrome
(“CRPS”). Petition at 1. The case was assigned to the Special Processing Unit (“SPU”)
of the Office of Special Masters.

        On August 19, 2015, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a Shoulder Injury Related to Vaccine Administration (“SIRVA”), with
sequelae of CRPS. On May 20, 2016, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $192,439.12 for actual
and projected pain and suffering; $9,617.91 to satisfy a State of New York Medicaid
lien; and an amount sufficient to purchase an annuity contract as described in Proffer
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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 has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National 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).
Section II.C. Proffer at 1-5. In the Proffer, respondent represented that petitioner
agrees with the proffered award. Based on the record as a whole, the undersigned
finds that petitioner is entitled to an award as stated in the Proffer.

        (A) A lump sum payment of $225,554.28, representing compensation for life
            care expenses expected to be incurred during the first year after
            judgment ($33,115.16) and pain and suffering ($192,439.12), in the form
            of a check payable to petitioner, Adele Phillips.

        (B) A lump sum payment of $9,617.91, representing compensation for
            satisfaction of the State of New York Medicaid lien, payable jointly to
            petitioner and

                                     New York State Department of Health
                                              P.O. Box 415874
                                          Boston, MA 02241-5874
                                          Attn: Ms. Bianca Bostice
                                          Medicaid ID#: BA11400Q
                                         Recovery Case #: 174330

            Petitioner agrees to endorse this payment to the State of New York.

        (C) An amount sufficient to purchase the annuity contract described in the
            Proffer Section II.C.

       The clerk of the court is directed to enter judgment in accordance with this
decision. 3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




3 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
_______________________________________
ADELE PHILLIPS,                         )
                                        )
                        Petitioner,    )
                                        )
            v.                          )   No. 15-115V
                                        )   Chief Special Master Dorsey
SECRETARY OF HEALTH AND HUMAN )             ECF
SERVICES,                               )
                                        )
                        Respondent.     )
                                        )


               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         A.       Life Care Items

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

petitioner engaged Alan C. Winship, MS, Ed, CRC, D-ABVE, CLCP, to provide an estimation

of Adele Phillips’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 1, 2015. 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 Adele Phillips, attached

hereto as Tab A. 1 Respondent proffers that Adele Phillips 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.




         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.

                                                         -1-
          B.     Lost Earnings

          The parties agree that based upon the evidence of record, Adele Phillips has not suffered

a past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent

proffers that Adele Phillips should not be awarded lost earnings as provided under the Vaccine

Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Adele Phillips should be awarded $192,439.12 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.

          D.     Past Unreimbursable Expenses

          Petitioner represents that she has not incurred past unreimbursable expenses related to her

vaccine-related injury.

          E.     Medicaid Lien

          Respondent proffers that Adele Phillips should be awarded funds to satisfy the State of

New York lien in the amount of $9,617.91, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the State of New York may have against

any individual as a result of any Medicaid payments the State of New York has made to or on

behalf of Adele Phillips 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 August 13, 2013, under

Title XIX of the Social Security Act.




                                                  -2-
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 $225,554.28, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($33,115.16) and pain and

suffering ($192,439.12), in the form of a check payable to petitioner, Adele Phillips.

         B. A lump sum payment of $9,617.91, representing compensation for satisfaction of the

State of New York Medicaid lien, payable jointly to petitioner and

                                    New York State Department of Health
                                             P.O. Box 415874
                                         Boston MA 02241-5874
                                         Attn: Ms. Bianca Bostice
                                        Medicaid ID #: BA11400Q
                                         Recovery Case #: 174330

Petitioner agrees to endorse this payment to the State of New York.

         C. 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


         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.
         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;
                                                         -3-
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,

Adele Phillips, only so long as she 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 she, Adele Phillips, 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 Adele Phillips’s death.




                  d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA,
                  AA+, or AAA.
         5
           Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent
with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System
of Records, No. 09-15-0056.
                                                         -4-
       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, Adele Phillips:                         $225,554.28
       B.     Medicaid Lien:                                                       $ 9,617.91
       C.     An amount sufficient to purchase the annuity contract described
              above in section II. C.




                                               -5-
                      Respectfully submitted,

                      BENJAMIN C. MIZER
                      Acting 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

                      S/ Alexis B. Babcock
                      Alexis B. Babcock
                      Senior Trial Attorney
                      Torts Branch, Civil Division
                      U.S. Department of Justice
                      P.O. Box 146
                      Benjamin Franklin Station
                      Washington, D.C. 20044-0146
                      Telephone: (202) 616-7678

Dated: May 20, 2016




                        -6-
                                                           Appendix A: Items of Compensation for Adele Phillips                                  Page 1 of 4

                                                   Lump Sum
                                                  Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
  ITEMS OF COMPENSATION              G.R.   *   M   Year 1       Year 2       Year 3      Years 4-5     Year 6      Years 7-10    Year 11     Years 12-15
                                                     2016         2017         2018       2019-2020      2021       2022-2025      2026       2027-2030
BCBS Premium                         5%         M    3,865.92     3,865.92     3,865.92      3,865.92    3,865.92      3,865.92    3,865.92      3,865.92
BCBS MOP                             5%              6,850.00     6,850.00     6,850.00      6,850.00    6,850.00      6,850.00    6,850.00      6,850.00
Medicare A Deductible                5%     *
Medicare Part B Premium              5%         M
Medicare Part B Deductible           5%     *
Medigap C                            5%         M
Medicare Part D                      5%         M
Urine Toxicology Screen              5%     *
PT/OT                                3%     *
Psychological Care                   3%     *
Manual WC                            3%     *
3 Wheeled Scooter                    3%                1,613.00                                                   1,613.00            1,613.00
Scooter Battery                      3%                  102.40        102.40        102.40        102.40           102.40   102.40     102.40          102.40
Scooter Maint                        3%                                              199.00         39.80            39.80    39.80      39.80           39.80
Cane                                 3%                   19.79          1.98          1.98          1.98             1.98     1.98       1.98            1.98
Walker                               3%                  155.12         31.02         31.02         31.02            31.02    31.02      31.02           31.02
Grab Bars                            3%                   71.00
Raised Toilet Seat                   3%                   65.38          6.54          6.54           6.54            6.54     6.54      6.54              6.54
Ice Grip for Cane                    3%                    7.50          7.50          7.50           7.50            7.50     7.50      7.50              7.50
Lift Chair                           3%     *            722.00                                                                        722.00
Shower Bench                         3%                   41.37          4.14          4.14           4.14           4.14      4.14      4.14              4.14
Sling & Abduction Pillow             3%                   33.32         16.66         16.66          16.66          16.66     16.66     16.66             16.66
TENS Supplies                        3%     *
TENS Unit                            3%     *
Rocker Knife, Meat Cutter, Cutting
Board                                3%                   92.00
Round Up Plate, Scoop Bowl &
Plate                                3%                   44.00
Cyclobenzaprine                      5%     *
OTC Ibuprofen                        3%                   35.96         35.96         35.96          35.96          35.96     35.96     35.96             35.96
Oxycodone                            5%     *
                                                       Appendix A: Items of Compensation for Adele Phillips                                                    Page 2 of 4

                                              Lump Sum
                                             Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
  ITEMS OF COMPENSATION         G.R.   *   M   Year 1       Year 2       Year 3      Years 4-5     Year 6      Years 7-10    Year 11     Years 12-15
                                                 2016         2017         2018      2019-2020       2021      2022-2025       2026      2027-2030
Home Health Aide                3%         M    19,366.00    19,366.00    19,366.00    19,366.00    19,366.00    19,366.00    19,366.00    19,366.00
Neurology                       5%     *
Pain Mngt                       5%     *
Primary Care                    5%     *
Mileage                         3%                   30.40            30.40           30.40           30.40           30.40           30.40            30.40            30.40
Spinal Cord Stimulator Trial,
Implant & Revision              5%     *
Lost Future Earnings
Pain and Suffering                              192,439.12
Past Unreimbursable Expenses
Medicaid Lien                                     9,617.91
Annual Totals                                   235,172.19       30,318.52       30,517.52        30,358.32       31,971.32       30,358.32       32,693.32        30,358.32
                                             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 ($33,115.16) and pain and suffering ($192,439.12): $225,554.28.
                                             As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                             petitioner and the State of New York, as reimbursement of the state's Medicaid lien: $9,617.91.
                                             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 Adele Phillips                       Page 3 of 4


                                                  Compensation Compensation Compensation Compensation Compensation Compensation
  ITEMS OF COMPENSATION              G.R.   *   M   Year 16     Years 17-18  Years 19-20   Year 21     Years 22-23 Years 24-Life
                                                     2031       2032-2033    2034-2035      2036       2037-2038    2039-Life
BCBS Premium                         5%         M    3,865.92      3,865.92     3,865.92    3,865.92      3,865.92
BCBS MOP                             5%              6,850.00      6,850.00     6,850.00    6,850.00      6,850.00
Medicare A Deductible                5%     *
Medicare Part B Premium              5%         M                                                                          1,461.60
Medicare Part B Deductible           5%     *
Medigap C                            5%         M                                                                          2,754.60
Medicare Part D                      5%         M                                                                            532.95
Urine Toxicology Screen              5%     *
PT/OT                                3%     *
Psychological Care                   3%     *
Manual WC                            3%     *
3 Wheeled Scooter                    3%                1,613.00                                   1,613.00        322.60    322.60
Scooter Battery                      3%                  102.40       102.40         102.40         102.40        102.40    102.40
Scooter Maint                        3%                   39.80        39.80          39.80          39.80         39.80     39.80
Cane                                 3%                    1.98         1.98           1.98           1.98          1.98      1.98
Walker                               3%                   31.02        31.02          31.02          31.02         31.02     31.02
Grab Bars                            3%
Raised Toilet Seat                   3%                    6.54          6.54          6.54          6.54           6.54      6.54
Ice Grip for Cane                    3%                    7.50          7.50          7.50          7.50           7.50      7.50
Lift Chair                           3%     *                                                      722.00          47.20     47.20
Shower Bench                         3%                    4.14          4.14          4.14          4.14           4.14      4.14
Sling & Abduction Pillow             3%                   16.66         16.66         16.66         16.66          16.66     16.66
TENS Supplies                        3%     *
TENS Unit                            3%     *
Rocker Knife, Meat Cutter, Cutting
Board                                3%
Round Up Plate, Scoop Bowl &
Plate                                3%
Cyclobenzaprine                      5%     *
OTC Ibuprofen                        3%                   35.96         35.96         35.96         35.96          35.96     35.96
Oxycodone                            5%     *
                                                         Appendix A: Items of Compensation for Adele Phillips                                                   Page 4 of 4


                                             Compensation Compensation Compensation Compensation Compensation Compensation
  ITEMS OF COMPENSATION         G.R.   *   M   Year 16     Years 17-18  Years 19-20   Year 21     Years 22-23 Years 24-Life
                                                 2031      2032-2033    2034-2035       2036      2037-2038    2039-Life
Home Health Aide                3%         M    19,366.00    19,366.00    29,049.00    29,049.00    29,049.00    29,049.00
Neurology                       5%     *
Pain Mngt                       5%     *
Primary Care                    5%     *
Mileage                         3%                     30.40            30.40           30.40           30.40           30.40           30.40
Spinal Cord Stimulator Trial,
Implant & Revision              5%     *
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Medicaid Lien
Annual Totals                                      31,971.32       30,358.32       40,041.32        42,376.32       40,411.12       34,444.35
                                               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 ($33,115.16) and pain and suffering ($192,439.12): $225,554.28.
                                               As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                               petitioner and the State of New York, as reimbursement of the state's Medicaid lien: $9,617.91.
                                               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.
