        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 14-1220V
                                      Filed: June 24, 2016
                                         UNPUBLISHED

****************************
BRANDY ROJAS,                          *
                                       *
                   Petitioner,         *     Damages Decision Based on Proffer;
v.                                     *     Influenza;
                                       *     Shoulder Injury (“SIRVA”);
SECRETARY OF HEALTH                    *     Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                    *
                                       *
                   Respondent.         *
                                       *
****************************
Samantha Travis, Bryan & Travis, PLLP, Kalispell, MT, for petitioner.
Alexis Babcock, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

       On December 22, 2014, 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 receiving a trivalent influenza (“flu”)
vaccination on October 29, 2013, petitioner suffered cause-in-fact injuries to her left
shoulder including Complex Regional Pain Syndrome (“CRPS”) and Myofasical Pain
Syndrome. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.

      On March 10, 2015, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a Shoulder Injury Related to Vaccine Administration (“SIRVA”). On
June 24, 2016, respondent filed a proffer on award of compensation (“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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
accompanied by Appendix A: Items of Compensation for Brandy Rojas. The Proffer
indicates that petitioner should be awarded the following:

      •   $175,000.00 in actual and projected pain and suffering; and

      •   $1,511.34 for past unreimbursable medical expenses; and

      •   $10,696.65 to satisfy a lien for services rendered for her vaccine-related injury by
          Professional Therapy Associates/Kalispell Rehabilitation Associates, Inc., P.C.
          (“PTA/KRA”) from December 17, 2013 to April 21, 2014; and

      •   $14,358.00 for life care expenses expected to be incurred during the first year
          after judgment; and

      •   An amount sufficient to purchase an annuity as described in paragraph II(C) of
          the proffer that will provide payments for the life care items contained in the life
          care plan for the second year after judgment and all subsequent years.

Proffer at 2-3. 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.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
the following:

          •   A lump sum payment of $190,869.34, representing compensation for life
              care expenses expected to be incurred during the first year after
              judgment ($14,358.00), pain and suffering ($175,000.00), and past
              unreimbursable expenses ($1,511.34), in the form of a check
              payable to petitioner, Brandy Rojas;

          •   A lump sum payment of $10,696.65, representing compensation for
              satisfaction of the outstanding PTA/KRA lien against petitioner, payable
              jointly to petitioner and
                                           PTA/KRA
                                  1234 Whitefish Stage Road
                                   Kalispell, Montana 59901
                                          ID# 9314 3;

          •   An amount sufficient to purchase the annuity contract described in the
              Proffer Section II.C. This amount represents all remaining elements of
              compensation to which petitioner would be entitled under § 300aa-15(a).
.



3
    Petitioner agrees to endorse this payment to PTA/KRA.

                                                    2
       The clerk of the court is directed to enter judgment in accordance with this
decision. 4

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




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.


                                                      3
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                        OFFICE OF SPECIAL MASTERS
_______________________________________
BRANDY ROJAS,                           )
                                        )
                        Petitioner,    )
                                        )
            v.                          )   No. 14-1220V
                                        )   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 Liz Kattman, MS, to provide an estimation of Brandy Rojas’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 March 6, 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 Brandy Rojas, attached hereto as Tab A. 1 Respondent

proffers that Brandy Rojas 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, Brandy Rojas has not suffered a

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

proffers that Brandy Rojas 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 Brandy Rojas should be awarded $175,000.00 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.

          D.     Past Unreimbursable Expenses

          Evidence supplied by petitioner documents her 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 $1,511.34. Petitioner agrees.

          Evidence supplied by petitioner documents an outstanding lien claimed against her for

services rendered for her vaccine-related injury by Professional Therapy Associates/Kalispell

Rehabilitation Associates, Inc., P.C. (“PTA/KRA”) from December 17, 2013 to April 21, 2014.

Respondent proffers that petitioner should be awarded past unreimbursable expenses in the

amount of $10,696.65 in order to satisfy the PTA/KRA lien, which amount shall be payable

jointly to petitioner and PTA/KRA. Petitioner agrees.

          E.     Medicaid Lien

          Petitioner represents that there are no outstanding Medicaid liens against her.




                                                  -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 Chief Special Master’s decision and the Court’s judgment award the

following: 2

         A. A lump sum payment of $190,869.34, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($14,358.00), pain and

suffering ($175,000.00), and past unreimbursable expenses ($1,511.34), in the form of a check

payable to petitioner, Brandy Rojas.

         B. A lump sum payment of $10,696.65, representing compensation for satisfaction of the

outstanding PTA/KRA lien against petitioner, payable jointly to petitioner and

                                                  PTA/KRA
                                          1234 Whitefish Stage Road
                                           Kalispell, Montana 59901
                                                   ID# 9314

Petitioner agrees to endorse this payment to PTA/KRA.

         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;

                                                         -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,

Brandy Rojas, 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 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, Brandy Rojas, 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 Brandy Rojas’s death.


                  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.
         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, Brandy Rojas:                           $190,869.34
       B.     PTA/KRA lien payable jointly to petitioner and PTA/KRA:              $ 10,696.65
       C.     An amount sufficient to purchase the annuity contract described
              above in section II. C.

                                             Respectfully submitted,

                                             BENJAMIN C. MIZER
                                             Principal Deputy Assistant Attorney General

                                             RUPA BHATTACHARYYA
                                             Director
                                             Torts Branch, Civil Division

                                             CATHARINE E. REEVES
                                             Acting Deputy Director
                                             Torts Branch, Civil Division

                                             HEATHER L. PEARLMAN
                                             Senior Trial Attorney
                                             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: June 24, 2016




                                               -5-
                                      Appendix A: Items of Compensation for Brandy Rojas                               Page 1 of 1

                                                   Lump Sum
                                                  Compensation Compensation           Compensation    Compensation     Compensation
  ITEMS OF COMPENSATION              G.R. *     M    Year 1     Years 2-13             Years 14-28     Years 29-33     Years 34-Life
                                                      2016      2017-2028              2029-2043       2044-2048        2049-Life
Insurance MOP                        5%               1,250.00     1,250.00                1,250.00
Prescription Deductible              5%                 200.00       200.00                  200.00
Medicare Part B Deductible           5%     *
Medigap F                            5%         M                                                           2,226.00         2,226.00
Medicare Part D                      5%         M                                                             441.72           441.72
Pain Mngt                            5%     *
Stellate Ganglion Block              5%     *
Calmare Treatment                    5%                  1,500.00
Clonazepam                           5%     *              120.00           120.00           120.00
Nortriptyline                        5%     *              120.00           120.00           120.00
Compound Topical Solution            5%     *              840.00           840.00           840.00
Personal Assistance                  4%         M        7,644.00         7,644.00        12,012.00        12,012.00       15,288.00
Ancillary Services                   4%                    798.00           798.00           798.00           798.00          798.00
Counseling                           4%     *
Case Mngt                            4%                  1,284.00         1,284.00         1,284.00         1,284.00         1,284.00
PT Eval                              4%     *
PT                                   4%     *
Gym                                  4%                    552.00           492.00           492.00           492.00           492.00
Symptom Mngt Supplies                4%                     50.00            50.00            50.00            50.00            50.00
TENS                                 4%     *
Pain and Suffering                                     175,000.00
Past Unreimbursable Expenses                             1,511.34
PTA/KRA Lien                                            10,696.65
Annual Totals                                          201,565.99        12,798.00        17,166.00        17,303.72       20,579.72
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 ($14,358.00), pain and suffering ($175,000.00), and past unreimbursable expenses ($1,511.34): $190,869.34.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the PTA/KRA, as reimbursement of the provider's lien: $10,696.65.
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.
In respondent's discretion, items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.
