    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                          No. 12-269V
                                      Filed: April 8, 2013
                                      Not for publication


*************************************
DONALD PRESGRAVE,                         *
                                          *
                    Petitioner,           *
                                          *                      Damages decision based on proffer
v.                                        *
                                          *
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
                    Respondent.           *
                                          *
*************************************
Ronald C. Homer, Boston, MA, for petitioner.
Alexis B. Babcock, Washington, DC, for respondent.


MILLMAN, Special Master


                              DECISION AWARDING DAMAGES1

        On April 8, 2013, respondent filed a Proffer on Award of Compensation. Based on the
record as a whole, the special master finds that petitioner is entitled to the award as stated in the
Proffer. Pursuant to the terms stated in the attached Proffer, the court awards petitioner:




1
  Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to delete
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall delete such
material from public access.
        a. a lump sum payment of $778,627.17, representing compensation for life care
           expenses for the first year after judgment ($12,713.29), lost earnings ($588,662.36),
           pain and suffering ($176,832.07), and past unreimbursable expenses ($419.45), in the
           form of a check payable to Donald Presgrave, petitioner; and

        b. an amount sufficient to purchase an annuity contract subject to the conditions
           described in section II. B. of the attached Proffer.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.2


IT IS SO ORDERED.


Dated: April 8, 2013                                                      /s/ Laura D. Millman
                                                                            Laura D. Millman
                                                                              Special Master




2
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party=s filing a notice
renouncing the right to seek review.
                                                    2
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                           OFFICE OF SPECIAL MASTERS
__________________________________________
                                           )
DONALD PRESGRAVE,                          )   ECF
                                           )
               Petitioner,                 )   No. 12-269V
    v.                                     )   Special Master Millman
                                           )
SECRETARY OF HEALTH                        )
AND HUMAN 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 Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Donald

Presgrave’s future vaccine-injury related needs. For the purposes of this proffer, the term

“vaccine related” is as described in respondent’s Rule 4(c) report filed on July 24, 2012. All

items of compensation identified in the joint life care plan are supported by the evidence, and are

illustrated by the chart entitled Appendix A: Items of Compensation for Donald Presgrave,

attached hereto as Tab A. 1 Respondent proffers that Donald Presgrave should be awarded all

items of compensation set forth in the joint 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 joint 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 Future Earnings

          The parties agree that based upon the evidence of record, Donald Presgrave has suffered

a past loss of earnings and will continue to suffer a loss of earnings in the future. Therefore,

respondent proffers that Donald Presgrave should be 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

Donald Presgrave’s lost earnings is $588,662.36. Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Donald Presgrave should be awarded $176,832.07 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 Donald Presgrave’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 $419.45. Petitioner

agrees.

          E.     Medicaid Lien

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

II.       Form of the Award

          The parties recommend that the compensation provided to Donald Presgrave should be

made through a combination of lump sum payments and future annuity payments as described

below, and request that the special master's decision and the Court's judgment award the

following:

          A. A lump sum payment of $778,627.17, representing compensation for life care


                                                  -2-
expenses expected to be incurred during the first year after judgment ($12,713.29), lost earnings

($588,662.36), pain and suffering ($176,832.07), and past unreimbursable expenses ($419.45), in

the form of a check payable to petitioner, Donald Presgrave.

         B. An amount sufficient to purchase an annuity contract, 2 subject to the conditions

described below, that will provide payments for the life care items contained in the joint life care

plan, as illustrated by the chart at Tab A. attached hereto, paid to the life insurance company 3

from which the annuity will be purchased. 4 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,

Donald Presgrave, only so long as Donald Presgrave 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.




         2
           In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
         3
          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.
         4
           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.
                                                         -3-
       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 he, Donald Presgrave, 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 Donald Presgrave’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, Donald Presgrave:                        $778,627.17
       B.      An amount sufficient to purchase the annuity contract described
               above in section II. B.

                                              Respectfully submitted,

                                              STUART F. DELERY
                                              Principal Deputy Assistant Attorney General

                                              RUPA BHATTACHARYYA
                                              Director
                                              Torts Branch, Civil Division

                                              VINCENT J. MATANOSKI
                                              Deputy Director
                                              Torts Branch, Civil Division



                                                 -4-
                       LINDA S. RENZI
                       Senior Trial Counsel
                       Torts Branch, Civil Division

                       /S/ALEXIS B. BABCOCK
                       ALEXIS B. BABCOCK
                       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: April 8, 2013




                         -5-
                                                           Appendix A: Items of Compensation for Donald Presgrave                                                    Page 1 of 3

                                                Lump Sum
                                               Compensation Compensation         Compensation     Compensation     Compensation    Compensation     Compensation      Compensation
  ITEMS OF COMPENSATION               G.R. * M    Year 1      Year 2               Year 3           Year 4           Year 5          Year 6           Year 7            Year 8
                                                   2013        2014                 2015             2016             2017            2018             2019              2020
Multi Plan Health Premium             5%     M     3,017.40     3,017.40             3,017.40         3,017.40         3,017.40        3,017.40         3,017.40          3,017.40
Medicare Part B Deductible            5%
Neurologist                           5% *           210.00       210.00                 35.00            35.00            35.00            35.00           35.00              35.00
Psychologist                          5% *           576.00       576.00                                                                                   576.00
Future Physiatrist/Other Specialist   5% *            35.00         7.00                   7.00            7.00             7.00             7.00            7.00               7.00
EMG                                   5% *           780.00                                              780.00                                            780.00
Hydroxyzine                           5% *            63.00        63.00                 63.00            63.00            63.00            63.00           63.00             63.00
Buspirone                             5% *            63.00        63.00                 63.00            63.00            63.00            63.00           63.00             63.00
Zoloft                                5% *            63.00        63.00                 63.00            63.00            63.00            63.00           63.00             63.00
Aspirin                               4%              10.66        10.66                 10.66            10.66            10.66            10.66           10.66             10.66
Tylenol                               4%              94.75        94.75                 94.75            94.75            94.75            94.75           94.75             94.75
Advil                                 4%              68.26        68.26                 68.26            68.26            68.26            68.26           68.26             68.26
PT                                    4% *           864.00       864.00                                                  216.00                                             216.00
OT                                    4% *           864.00       864.00                                                  144.00                                             144.00
Shower Transfer Bench                 4%                                                                                                                   130.00             18.57
Hand Held Shower                      4%                                                                                                                    32.00              4.57
Grab Bars                             4%             274.00                                                                                                                  274.00
Over the Toilet Commode               4%                                                                                                                    179.00            25.57
Kitchen/Pers. Care/Adapt. Equip.      4%             250.00                                                                                150.00            30.00            30.00
Step Stool                            4%              48.95         4.90                  4.90             4.90             4.90             4.90             4.90             4.90
YMCA                                  4%     M       446.00       396.00                396.00           396.00           396.00           396.00           396.00           396.00
Home Care                             4%     M     3,276.00     3,276.00              3,276.00         3,276.00         3,276.00         3,276.00         4,368.00         4,368.00
Handy Man                             4%     M       600.00       600.00                600.00           600.00           600.00           600.00           600.00           600.00
Mileage                               4%     M     1,109.27     1,105.25              1,031.95         1,031.95         1,031.95         1,031.95         1,031.95         1,031.95
Lost Earnings                                    588,662.36
Pain and Suffering                               176,832.07
Past Unreimbursable Expenses                         419.45
Annual Totals                                     778,627.17        11,283.22         8,730.92         9,510.92         9,090.92         8,880.92       11,549.92         10,535.63
                                                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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
                                                expenses ($419.45): $778,627.17
                                                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.
                                                At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
                                                              Appendix A: Items of Compensation for Donald Presgrave                                                     Page 2 of 3


                                                 Compensation       Compensation     Compensation     Compensation     Compensation     Compensation    Compensation       Compensation
  ITEMS OF COMPENSATION               G.R. * M     Year 9             Year 10          Year 11          Year 12          Year 13          Year 14        Years 15-16         Year 17
                                                    2021               2022             2023             2024             2025             2026          2027-2028            2029
Multi Plan Health Premium             5%       M     3,017.40           3,017.40         3,017.40         3,017.40         3,017.40         3,017.40        3,017.40
Medicare Part B Deductible            5%                                                                                                                                           147.00
Neurologist                           5%   *                35.00            35.00            35.00           35.00            35.00            35.00            35.00              18.80
Psychologist                          5%   *                                                                 576.00                                                                192.00
Future Physiatrist/Other Specialist   5%   *                 7.00             7.00             7.00            7.00             7.00             7.00             7.00              12.00
EMG                                   5%   *                                780.00                                            780.00
Hydroxyzine                           5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00               63.00
Buspirone                             5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00               63.00
Zoloft                                5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00               63.00
Aspirin                               4%                    10.66            10.66           10.66            10.66            10.66            10.66            10.66               10.66
Tylenol                               4%                    94.75            94.75           94.75            94.75            94.75            94.75            94.75               94.75
Advil                                 4%                    68.26            68.26           68.26            68.26            68.26            68.26            68.26               68.26
PT                                    4%   *                                                216.00                                             216.00                                72.00
OT                                    4%   *                                                144.00                                             144.00                                48.00
Shower Transfer Bench                 4%                    18.57            18.57           18.57            18.57            18.57            18.57            18.57               18.57
Hand Held Shower                      4%                     4.57             4.57            4.57             4.57             4.57             4.57             4.57                4.57
Grab Bars                             4%                    39.14            39.14           39.14            39.14            39.14            39.14            39.14               39.14
Over the Toilet Commode               4%                    25.57            25.57           25.57            25.57            25.57            25.57            25.57               25.57
Kitchen/Pers. Care/Adapt. Equip.      4%                    30.00            30.00           30.00            30.00            30.00            30.00            30.00               30.00
Step Stool                            4%                     4.90             4.90            4.90             4.90             4.90             4.90             4.90                4.90
YMCA                                  4%       M           396.00           396.00          396.00           396.00           396.00           396.00           396.00              348.00
Home Care                             4%       M         4,368.00         4,368.00        4,368.00         4,368.00         4,368.00         4,368.00         4,368.00            6,552.00
Handy Man                             4%       M           600.00           600.00          600.00           600.00           600.00           600.00           600.00              600.00
Mileage                               4%       M         1,031.95         1,031.95        1,031.95         1,031.95         1,031.95         1,031.95         1,031.95            1,031.95
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals                                            9,940.77       10,720.77        10,300.77        10,516.77        10,720.77        10,300.77         9,940.77            9,507.17
                                                   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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
                                                   expenses ($419.45): $778,627.17
                                                   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.
                                                   At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
                                                              Appendix A: Items of Compensation for Donald Presgrave                                                     Page 3 of 3


                                                   Compensation     Compensation     Compensation     Compensation     Compensation     Compensation    Compensation       Compensation
  ITEMS OF COMPENSATION               G.R. * M       Year 18          Year 19          Year 20          Year 21          Year 22          Year 23         Year 24          Years 25-Life
                                                      2030             2031             2032             2033             2034             2035            2036             2037-Life
Multi Plan Health Premium             5%       M
Medicare Part B Deductible            5%                   147.00           147.00          147.00           147.00           147.00           147.00           147.00             147.00
Neurologist                           5%   *                18.80            18.80           18.80            18.80            18.80            18.80            18.80              18.80
Psychologist                          5%   *                38.40            38.40           38.40            38.40            38.40            38.40            38.40              38.40
Future Physiatrist/Other Specialist   5%   *                12.00            12.00           12.00            12.00            12.00            12.00            12.00              12.00
EMG                                   5%   *               260.00            52.00           52.00            52.00            52.00            52.00            52.00              52.00
Hydroxyzine                           5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00              63.00
Buspirone                             5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00              63.00
Zoloft                                5%   *                63.00            63.00           63.00            63.00            63.00            63.00            63.00              63.00
Aspirin                               4%                    10.66            10.66           10.66            10.66            10.66            10.66            10.66              10.66
Tylenol                               4%                    94.75            94.75           94.75            94.75            94.75            94.75            94.75              94.75
Advil                                 4%                    68.26            68.26           68.26            68.26            68.26            68.26            68.26              68.26
PT                                    4%   *                                                 72.00                                              72.00           360.00             120.00
OT                                    4%   *                                                 48.00                                              48.00           240.00              80.00
Shower Transfer Bench                 4%                    18.57            18.57           18.57            18.57            18.57            18.57            18.57              18.57
Hand Held Shower                      4%                     4.57             4.57            4.57             4.57             4.57             4.57             4.57               4.57
Grab Bars                             4%                    39.14            39.14           39.14            39.14            39.14            39.14            39.14              39.14
Over the Toilet Commode               4%                    25.57            25.57           25.57            25.57            25.57            25.57            25.57              25.57
Kitchen/Pers. Care/Adapt. Equip.      4%                    30.00            30.00           30.00            30.00            30.00            30.00            30.00              30.00
Step Stool                            4%                     4.90             4.90            4.90             4.90
YMCA                                  4%       M           348.00           348.00          348.00           348.00           348.00           348.00           348.00              348.00
Home Care                             4%       M         6,552.00         6,552.00        6,552.00         6,552.00         6,552.00         6,552.00         6,552.00            6,552.00
Handy Man                             4%       M           600.00           600.00          600.00           600.00           600.00
Mileage                               4%       M         1,031.95         1,031.95        1,031.95         1,031.95         1,031.95         1,031.95         1,031.95            1,031.95
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals                                            9,493.57         9,285.57        9,405.57         9,285.57         9,280.67         8,800.67         9,280.67            8,880.67
                                                   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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
                                                   expenses ($419.45): $778,627.17
                                                   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.
                                                   At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
