        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 15-951V
                                    Filed: February 18, 2016
                                           Unpublished

****************************
BARBARA LYKINS,                        *
                                       *
                   Petitioner,         *       Damages Decision Based on Proffer;
                                       *       Influenza (“Flu”) Vaccination; Shoulder
                                       *       Injury Related to Vaccine Administration
SECRETARY OF HEALTH                    *       (“SIRVA”); Attorneys’ Fees and Costs;
AND HUMAN SERVICES,                    *       Special Processing Unit (“SPU”)
                                       *
                   Respondent.         *
                                       *
****************************
Mark Paul Schloegel, Popham Law Firm, Kansas City, MO, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

      DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

         On August 31, 2015, 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” or “Program”]. Petitioner alleges that she suffered a shoulder injury
related to vaccine administration [“SIRVA”] as a result of her October 9, 2012 influenza
[“flu”] vaccination. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.

        On December 21, 2015, a ruling on entitlement was issued, finding petitioner
entitled to compensation for her SIRVA. On February 16, 2016, respondent filed a
Proffer on Award of Compensation [“Proffer”] indicating petitioner should be awarded
$120,000.00 in damages for actual and projected pain and suffering, and $1,159.89 in
damages for past unreimbursable expenses. Proffer at 2. In the Proffer, respondent
represented that petitioner agrees with the proffered award. Based on the record as a
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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
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).
whole, the undersigned finds that petitioner is entitled to an award as stated in the
Proffer.

       Respondent further proffered that petitioner shoulder be awarded $13,295.13 for
attorneys’ fees and costs. Proffer at 3. In accordance with General Order #9, the
Proffer indicates that petitioner represents that she incurred no out-of-pocket expenses.
The Proffer further indicates that petitioner agrees with the proffered award. The
Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any
objection by respondent, the undersigned GRANTS the request for approval and
payment of attorneys’ fees and costs.

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


    A. A lump sum payment of $121,159.89 which represents compensation for
       actual and projected pain and suffering ($120,000.00) and past
       unreimbursable expenses ($1,159.89), in the form of a check payable to
       petitioner, Barbara Lykins. This amount represents compensation for all
       damages that would be available under § 300aa-15(a).

    B. A lump sum payment of $13,295.133 in the form of a check jointly payable
       to petitioner and petitioner’s counsel, Mark Schloegel, Esq., for attorneys’
       fees and costs.

       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




3
 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
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
____________________________________
                                     )
BARBARA LYKINS,                      )
                                     )
            Petitioner,              )
                                     )
v.                                   )  No. 15-951V
                                     )  Chief Special Master Dorsey
                                     )  ECF
SECRETARY OF HEALTH AND              )  SPU
HUMAN SERVICES,                      )
                                     )
            Respondent.              )
____________________________________)

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On August 31, 2015, petitioner, Barbara Lykins, filed a petition for compensation under

the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”),

alleging that she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as

a result of receiving a seasonal influenza (“flu”) vaccine on October 8, 2012. On December 18,

2015, respondent filed her Rule 4(c) Report stating that petitioner’s arm injury is consistent with

SIRVA and conceding that her SIRVA is compensable under the Vaccine Act. Accordingly, on

December 21, 2015, Chief Special Master Dorsey issued a Ruling on Entitlement finding that

petitioner is entitled to compensation for SIRVA.

I.     Items of Compensation

       For the purposes of this proffer, the term “vaccine-related” is as described in

Respondent’s Rule 4(c) Report filed on December 18, 2015.

       A.      Future Unreimbursable Expenses

       The parties agree that based upon the evidence of record, petitioner will not require future

care for her vaccine-related injury. Therefore, respondent proffers that petitioner should be
awarded no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1).

Petitioner agrees.

          B.     Lost Earnings

          The parties agree that based upon the evidence of record, petitioner has not incurred and

will not incur any loss of earnings as a result of her vaccine injury. Therefore, respondent

proffers that petitioner should be awarded no actual or anticipated loss of earnings under

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

          C.     Pain and Suffering

          Respondent proffers that petitioner should be awarded $120,000.00 in actual and

projected pain and suffering. This amount reflects that the 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 $1,159.89. Petitioner agrees.

          E.     Medicaid Lien

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

          F.     Attorneys’ Fees and Costs

          Petitioner has supplied documentation of reasonable attorneys’ fees and litigation costs in

the amount of $13,295.13, incurred by petitioner’s counsel in pursuit of this petition. In

compliance with General Order #9, petitioner has indicated that she did not incur any out-of-


                                                  -2-
pocket expenses in proceeding on the petition. Respondent proffers that petitioner should be

awarded $13,295.13 for attorneys’ fees and costs.      Petitioner agrees.

II.    Form of the Award

       The parties recommend that compensation provided to petitioner should be made through

lump sum payments as described below and request that the Chief Special Master’s decision and

the Court’s judgment award the following: 1

       A. A lump sum payment of $121,159.89, representing compensation for pain and

suffering and past unreimbursable expenses, in the form of a check payable to petitioner; and

       B.    A lump sum payment of $13,295.13 in the form of a check payable to petitioner and

petitioner’s attorney, Mark Schloegel, Esq., for attorneys’ fees and costs. Petitioner agrees to

endorse this payment to petitioner’s attorney.

III.   Summary of Recommended Payments Following Judgment

        A.     Lump sum paid to petitioner:                                         $121,159.89

        B.     Reasonable Attorneys’ Fees and Costs:                                $13,295.13


                                              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

1
  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-
                          MICHAEL P. MILMOE
                          Senior Trial Counsel
                          Torts Branch, Civil Division

                           s/ Justine Walters__________
                          JUSTINE WALTERS
                          Trial Attorney
                          Torts Branch, Civil Division
                          U.S. Department of Justice
                          P.O. Box 146, Benjamin Franklin Station
                          Washington, D.C. 20044-0146
                          Tel: (202) 307-6393

DATE: February 16, 2016




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