        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-660V
                                    Filed: December 6, 2016
                                         UNPUBLISHED

****************************
GAYLE E. GAGNE,                            *
                                           *
                    Petitioner,            *       Damages Decision Based on Proffer;
v.                                         *       Influenza (“Flu”); Shoulder Injury
                                           *       Related to Vaccine Administration
SECRETARY OF HEALTH                        *       (“SIRVA”);
AND HUMAN SERVICES,                        *       Special Processing Unit (“SPU”)
                                           *
                    Respondent.            *
                                           *
****************************
Kathy Lee, Cline, Farrell, et al., Indianapolis, IN, for petitioner.
Ann Martin, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

         On June 3, 2016, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) to her left shoulder following a September 16, 2014 influenza
(“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.

      On August 24, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a SIRVA. On December 2, 2016, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded a lump sum
payment of $241,384.78 in the form of a check payable to petitioner, Gayle E. Gagne;
$6,012.38 in the form of a check payable jointly to petitioner and OrthoIndy; $17,772.70
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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
in the form of a check payable jointly to petitioner and Indiana Orthopaedic Hospital;
and $6,740.78 in the form of a check payable jointly to petitioner and Athletic &
Therapeutic Institute. 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
             A lump sum of $241,384.78, representing future unreimbursable
                medical expenses ($25,391.00), pain and suffering ($200,000.00), and
                past unreimbursable medical expenses ($15,993.78), in the form of a
                check payable to petitioner, Gayle E. Gagne.
             A lump sum payment of $6,012.38 representing compensation for
                past unreimbursable expenses payable jointly to petitioner, Gayle E.
                Gagne, and OrthoIndy, P.O. Box 6284, Indianapolis, IN, 46206-6284,
                Acct: 2047151.
             A lump sum payment of $17,772.70 representing compensation for
                past unreimbursable expenses payable jointly to petitioner, Gayle E.
                Gagne, and Indiana Orthopaedic Hospital, P.O. Box 6018,
                Indianapolis, IN, 46206-6018, Acct: V00000745185.
             A lump sum payment of $6,740.78 representing compensation for
                past unreimbursable expenses payable jointly to petitioner, Gayle E.
                Gagne, and Athletic & Therapeutic Institute, P.O. Box 371863,
                Pittsburgh, PA, 15250-7863, Acct: 868605.
Proffer at 3-4.

       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
____________________________________
                                     )
GAYLE E. GAGNE,                      )
                                     )
            Petitioner,              )
                                    )   No. 16-660V
      v.                            )   Chief Special Master Dorsey
                                    )   ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES,                     )
                                    )
            Respondent.             )
____________________________________)

            RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation
       A.      Future Unreimbursable Medical Expenses

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

Special Master’s Ruling on Entitlement dated August 24, 2016. The parties agree that

petitioner will incur future unreimbursable medical expenses resulting from her vaccine-related

injury due to an upcoming surgical procedure and subsequent physical therapy, which will take

place in the year 2017. Based upon the evidence of record, respondent proffers that petitioner

should be awarded a lump sum of $25,391.00 to cover the costs of these future unreimbursable

medical expenses. Petitioner agrees.

       B.      Lost Earnings

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

subject to compensable lost earnings in the past nor will she sustain future lost earnings due

to her vaccine-related injury.
           C.     Pain and Suffering

           Respondent proffers that petitioner should be awarded $200,000.00 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 past unreimbursable expenses in the form of

reimbursement owed to petitioner to cover payments that petitioner has already made to medical

care providers for her vaccine-related injury, as well as outstanding balances due to such

providers. Respondent proffers that petitioner is entitled to total past unreimbursable expenses in

the amount of $46,519.64. The allocation of this amount is as follows:

        1. Respondent proffers that a check for $15,993.78 should be made payable to

petitioner.

        2. Respondent proffers that a check for $6,012.38 should be made payable jointly to

petitioner and OrthoIndy.

        3. Respondent proffers that a check for $17,772.70 should be made payable jointly to

petitioner and Indiana Orthopaedic Hospital.

        4. Respondent proffers that a check for $6,740.78 should be made payable jointly to

petitioner and Athletic & Therapeutic Institute.

Petitioner agrees.

           E.     Medicaid Lien

        Petitioner represents that there are no Medicaid liens outstanding 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, as described below, and request that the

special master’s decision and the Court’s judgment award the following: 1

       A. A lump sum payment of $241,384.78, representing future unreimbursable medical

expenses ($25,391.00), pain and suffering ($200,000.00), and past unreimbursable medical

expenses ($15,993.78), in the form of a check payable to Gayle E. Gagne, petitioner;

       B. A lump sum payment of $6,012.38 representing compensation for past

unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and

                                           OrthoIndy
                                         P.O. Box 6284
                                  Indianapolis, IN 46206-6284
                                         Acct: 2047151

Petitioner agrees to endorse this payment to OrthoIndy.

       C. A lump sum payment of $17,772.70 representing compensation for past

unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and

                                  Indiana Orthopaedic Hospital
                                         P.O. Box 6018
                                  Indianapolis, IN 46206-6018
                                      Acct: V00000745185

Petitioner agrees to endorse this payment to Indiana Orthopaedic Hospital.

       D. A lump sum payment of $6,740.78 representing compensation for past

unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and




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 and future pain and suffering

                                                 3
                                 Athletic & Therapeutic Institute
                                        P.O. Box 371863
                                  Pittsburgh, PA 15250-7863
                                          Acct: 868605

Petitioner agrees to endorse this payment to Athletic & Therapeutic Institute.

III. Summary of Recommended Payments Following Judgment

       A.      Lump Sum paid to petitioner:                                         $ 241,384.78

       B.      Lump Sum paid jointly to petitioner and OrthoIndy:                   $   6,012.38

       C.      Lump Sum paid jointly to petitioner and Indiana Orthopaedic
               Hospital:                                                            $ 17,772.70

       D.      Lump Sum paid jointly to petitioner and Athletic & Therapeutic
               Institute:                                                           $   6,740.78


                                                     Respectfully submitted,

                                                     BENJAMIN C. MIZER
                                                     Principal Deputy Assistant Attorney General

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

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

                                                     GLENN A. MACLEOD
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division

                                                     s/ ANN D. MARTIN
                                                     ANN D. MARTIN
                                                     Senior Trial Attorney
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146
DATED: December 2, 2016                              Tel.: (202) 307-1815


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