         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0697V
                                    Filed: January 31, 2019
                                        UNPUBLISHED


    JOSEPH L. WHEATLEY,

                        Petitioner,                          Special Processing Unit (SPU);
    v.                                                       Damages Decision Based on Proffer;
                                                             Tetanus Diphtheria acellular
    SECRETARY OF HEALTH AND                                  Pertussis (Tdap) Vaccine; Shoulder
    HUMAN SERVICES,                                          Injury Related to Vaccine
                                                             Administration (SIRVA)
                       Respondent.


Anthony P. Ellis, Ellis Law Group, PLLC, Louisville, KY, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On May 25, 2017, 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 alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused in fact by the tetanus, diphtheria, pertussis (“Tdap”)
vaccine he received on August 15, 2016. Petition at 1, ¶¶ 2, 23. The case was
assigned to the Special Processing Unit of the Office of Special Masters.

      On April 13, 2018, a ruling on entitlement was issued, finding petitioner entitled to
compensation for his SIRVA. On January 31, 2019, respondent filed a proffer on award
of compensation (“Proffer”) indicating petitioner should be awarded $117,924.67,

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the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).
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).
representing $424.00 in first year life care expenses, $2,575.80 in lost wages,
$110,000.00 in pain and suffering, and $4,924.87 in past unreimbursable expenses, and
an amount sufficient to purchase an annuity contract as described in Section II.B. of the
Proffer. Proffer at 1-4. In the Proffer, respondent represented that petitioner agrees
with the proffered award. Id. at 1-3. 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. A lump sum in the amount of $117,924.67, representing compensation in
           the amount of $424.00 for life care expenses in the first year after
           judgment, compensation in the amount of $2,575.80 for lost wages,
           compensation in the amount of $110,000.00 for pain and suffering, and
           compensation in the amount of $4,924.87 for actual unreimbursable
           expenses, in the form of a check payable to petitioner, Joseph L.
           Wheatley;

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

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.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


JOSEPH L. WHEATLEY,

                  Petitioner,

v.                                                              No. 17-697V
                                                                Chief Special Master Dorsey
SECRETARY OF HEALTH AND                                         ECF
HUMAN SERVICES,

                  Respondent.



               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         A.       Life Care Items

         Respondent engaged life care planner Laura Fox, MSN, BSN, RN, CDDN, CLCP, to

provide an estimation of Joseph L. Wheatley’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 April 12, 2018. 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 Joseph L. Wheatley, attached hereto as Tab A. 1 Respondent proffers that

Joseph L. Wheatley 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.       Lost Earnings

         The parties agree that based upon the evidence of record, Joseph L. Wheatley has

suffered past loss of earnings. Therefore, respondent proffers that Joseph L. Wheatley should be


         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-
awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A).

Respondent proffers that the appropriate award for Joseph L. Wheatley’s lost earnings is

$2,575.80. Petitioner agrees.

          C.      Pain and Suffering

          Respondent proffers that Joseph L. Wheatley should be awarded $110,000.00 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 Joseph L. Wheatley’s 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 $4,924.87.

II.       Form of the Award

          The parties recommend that the compensation provided to Joseph L. Wheatley 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 $117,924.67, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($424.00), lost earnings

($2,575.80), pain and suffering ($110,000.00), and past unreimbursable expenses ($4,924.87), in

the form of a check payable to petitioner, Joseph L. Wheatley.




          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-
        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 company4 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,

Joseph L. Wheatley, only so long as Joseph L. Wheatley 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 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: five percent (5%) compounded annually from the date

of judgment for medical items. Petitioner agrees.



        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-
         2.       Life-contingent annuity

         Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as he, Joseph L. Wheatley, 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 Joseph L. Wheatley’s death.

         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, Joseph L. Wheatley:                                 $117,924.67

         B.       An amount sufficient to purchase the annuity contract described
                  above in section II.B.




         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-
                                Respectfully submitted,

                                JOSEPH H. HUNT
                                Assistant Attorney General

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

                                CATHARINE E. REEVES
                                Deputy Director
                                Torts Branch, Civil Division

                                HEATHER L. PEARLMAN
                                Assistant Director
                                Torts Branch, Civil Division

                                /s/Colleen C. Hartley
                                COLLEEN C. HARTLEY
                                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) 616-3644


Dated: January 31, 2019




                          -5-
                                   Appendix A: Items of Compensation for Joseph L. Wheatley                            Page 1 of 1

                                                     Lump Sum
                                                    Compensation Compensation         Compensation
 ITEMS OF COMPENSATION             G.R.    *   M      Year 1      Years 2-7            Years 8-Life
                                                       2019       2020-2025             2026-Life
Medicare Part B Deductible          5%                                                       183.00
Medigap                             5%         M                                           1,245.96
Orthopedist                         5%     *               250.00
Diagnostic Tests                    5%     *               174.00
Shoulder Surgery                    5%     *
Lost Future Earnings                                     2,575.80
Pain and Suffering                                     110,000.00
Past Unreimbursable Expenses                             4,924.87
Medicaid Lien
Annual Totals                                          117,924.67               -          1,428.96
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 ($424.00), lost earnings ($2,575.80), pain and suffering ($110,000.00), and past unreimbursable
expenses ($4,924.87): $117,924.67.
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.
