         In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                            No. 17-2019V
                                     Filed: December 17, 2018
                                          UNPUBLISHED



RANDALL FENNIG,

                       Petitioner,                          Special Processing Unit (SPU);
v.                                                          Compensation Under the Vaccine
                                                            Program; Offset; Section 15(g)
SECRETARY OF HEALTH AND
HUMAN SERVICES,

                      Respondent.




                                                   ORDER1

 Dorsey, Chief Special Master:

        A telephonic status conference was held on December 12, 2018. Ms. Renee
 Gentry (substituting for Mr. Clifford Shoemaker) appeared on behalf of petitioner and
 Mr. Voris Johnson appeared on behalf of respondent. Ms. Reiko Suber appeared on
 behalf of the undersigned as the OSM staff attorney managing this case.
         During the status conference, counsel for petitioner noted that Optum, which
 purports to be a self-funded ERISA plan, alleges that it has provided over $360,000 in
 benefits to petitioner and has asserted a lien. Thus, counsel for petitioner sought to
 clarify whether Optum is entitled to reimbursement of these benefits if petitioner
 recovers monies in his Vaccine case.




 1
  The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
 means the ruling will be available to anyone with access to the internet. 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. Because this unpublished ruling contains a reasoned explanation for the action in this
 case, undersigned is required 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).
      Under the National Childhood Vaccine Injury Compensation Program (the
“Vaccine Act” or “Program”),2 a petitioner may recover actual and projected
unreimbursable expenses, lost wages, and pain and suffering, and an award of
$250,000 if the injury resulted in death. §15(a); see also Helman v. Sec’y of Health &
Human Servs., No. 10-813V, 2014 WL 3589564, at *1 (Fed. Cl. Spec. Mstr. June 24
2014) (citing Bruesewitz v. Wyeth, LLC, 131 S.Ct. 1068, 1074 (2011)).
       This compensation is then limited by subsequent sections. Punitive and
exemplary damages are prohibited, and for unreimbursable expenses and pain and
suffering, compensation may be provided only for the “health, education, or welfare of
the person who suffered the vaccine-related injury.” §15(d).
      Additionally, compensation is offset by amounts paid or expected to be paid
under an insurance policy and certain State or Federal programs. Section §15(g)
provides:
                   Payment of compensation under the Program shall not be made
                   for any item or service to the extent that payment has been made,
                   or can reasonably be expected to be made, with respect to such
                   item or service (1) under any State compensation program, under
                   an insurance policy, or under any Federal or State health benefits
                   program (other than under Title XIX of the Social Security Act (42
                   U.S.C. § 1396 et seq., i.e. Medicaid), or (2) by an entity which
                   provides health services on a prepaid basis.


Thus, the Vaccine Act is a secondary payer to petitioner’s health care insurance. Any
award paid to petitioner would not include amounts paid, or expected to be paid, under
his health insurance policy.
       The plain language of the Vaccine Act does not authorize reimbursement of the
benefits paid by Optum. I therefore find that pursuant to the Vaccine Act, Optum would
not be reimbursed for its payments for petitioner’s treatment in connection with the injury,
sickness, accident, or condition which has been alleged, should petitioner recover any
monies in this matter.



IT IS SO ORDERED.

                                             s/Nora Beth Dorsey
                                             Nora Beth Dorsey
                                             Chief Special Master


2 The National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42
U.S.C. §§ 300aa-10 et seq. Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
