             In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                  (Filed: March 15, 2017)
                                       No. 13-594V

* * * * * * * * * * * * *
HAZEL BROWN,            *                                     UNPUBLISHED
                        *
         Petitioner,    *                                     Decision Awarding Damages;
                        *                                     Complex Regional Pain
v.                      *                                     Syndrome (“CRPS”); Injury
                        *                                     to Shoulder; Arm Pain;
SECRETARY OF HEALTH     *                                     Influenza (“Flu”) Vaccine.
AND HUMAN SERVICES,     *
                        *
         Respondent.    *
                        *
* * * * * * * * * * * * *

Danielle Strait, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Heather Pearlman, US Department of Justice, Washington, DC, for respondent.

                             DECISION AWARDING DAMAGES1

Roth, Special Master:

       On August 20, 2013, Hazel Brown [“Ms. Brown,” or “petitioner”] filed a petition for
compensation under the National Vaccine Injury Compensation Program,2 alleging that she
received an influenza (“flu”) vaccination on October 1, 2010, and thereafter suffered pain in her


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party
has 14 days to identify and move to delete medical or other information, that satisfies the criteria
in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete 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).


                                                  1
upper right arm. Petitioner alleged that she was subsequently diagnosed with injury to her
shoulder as well as regional pain syndrome in her upper right extremity. See Petition at 1.

        Respondent thereafter filed a report pursuant to Vaccine Rule 4(c) conceding that
petitioner’s injury was caused-in-fact by the flu vaccination that she received on October 1,
2010, and that petitioner is entitled to compensation in this case. Respondent’s Report at 3, ECF
No. 17.

        On February 5, 2014, Chief Special Master Dorsey issued a ruling on entitlement finding
that petitioner was entitled to compensation. See Ruling on Entitlement, ECF No. 18.

Respondent filed a proffer on March 14, 2017, agreeing to issue the following payments:

           (1) A lump sum of $526,333.10, representing compensation for life care expenses
           expected to be incurred during the first year after judgment ($54,413.72), lost
           earnings ($215,507.84), pain and suffering ($238, 074.05), and past
           unreimbursable expenses ($18,337.49), in the form of a check payable to
           petitioner, Hazel Brown; and

           (2) An amount sufficient to purchase an annuity contract, described in section
           II.B of respondent’s proffer. This amount represents compensation for all damages
           that would be available under § 300aa-15(a).

        I adopt the parties’ proffer attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.3

IT IS SO ORDERED.

                              s/ Mindy Michaels Roth
                                 Mindy Michaels Roth
                                 Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.
                                                 2
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                        OFFICE OF SPECIAL MASTERS
_______________________________________
HAZEL BROWN,                            )
                                        )
                        Petitioner,    )
                                        )
            v.                          )   No. 13-594V
                                        )   Special Master Roth
SECRETARY OF HEALTH AND HUMAN )             ECF
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 Susan Guth, LCSW, CCM, and CLCP, to provide an estimation of Hazel

Brown’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 January 31, 2014, and the

Ruling on Entitlement, issued on February 5, 2014. 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 Hazel Brown, attached hereto as Tab A. 1 Respondent proffers that

Hazel Brown 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.




         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-
          B.      Lost Earnings

          The parties agree that based upon the evidence of record, Hazel Brown has suffered a

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

proffers that Hazel Brown 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 Hazel

Brown’s lost earnings is $215,507.84. Petitioner agrees.

          C.      Pain and Suffering

          Respondent proffers that Hazel Brown should be awarded $238,074.05 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 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 $18,337.49. Petitioner agrees.

          E.      Medicaid Lien

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

II.       Form of the Award

          The parties recommend that the compensation provided to petitioner 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: 2




         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-
        A. A lump sum payment of $526,333.10, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($54,413.72), lost earnings

($215,507.84), pain and suffering ($238,074.05), and past unreimbursable expenses

($18,337.49), in the form of a check payable to petitioner, Hazel Brown.

        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 company 4 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,

Hazel Brown, only so long as she 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.




        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-
         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 she, Hazel Brown, 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 Hazel Brown’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, Hazel Brown:                                         $526,333.10
         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,

                        CHAD A. READLER
                        Acting Assistant Attorney General

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

                        CATHARINE E. REEVES
                        Deputy Director
                        Torts Branch, Civil Division

                        /s/Heather L. Pearlman
                        HEATHER L. PEARLMAN
                        Assistant Director
                        Torts Branch, Civil Division
                        U.S. Department of Justice
                        P.O. Box 146
                        Benjamin Franklin Station
                        Washington, D.C. 20044-0146
                        Telephone: (202) 353-2699

Dated: March 14, 2017




                          -5-
                                                   Appendix A: Items of Compensation for Hazel Brown                                  Page 1 of 2

                                              Lump Sum
                                             Compensation Compensation   Compensation   Compensation   Compensation   Compensation
 ITEMS OF COMPENSATION         G.R   *   M     Year 1       Year 2         Year 3        Years 4-10      Year 11      Years 12-Life
                                                2017         2018           2019         2020-2026        2027         2028-Life
Medicare Part A Deductible     5%               1,316.00      1,316.00       1,316.00       1,316.00       1,316.00       1,316.00
Medicare Part B Premium        5%        M      1,608.00      1,608.00       1,608.00       1,608.00
Medicare Part B Deductible     5%                 183.00        183.00         183.00         183.00         183.00         183.00
Medigap                        5%        M      2,304.00      2,304.00       2,304.00       2,304.00       2,304.00       2,304.00
Medicare Part D                5%        M      6,061.21      6,061.21       6,061.21       6,061.21       6,061.21       6,061.21
Pain Mngt                      5%    *
Mileage: Pain Mngt             4%                  23.80         23.80          23.80          23.80          23.80          23.80
Pump Refill                    5%    *
Mileage: Pump Refill           4%                  47.60         47.60          47.60          47.60          47.60          47.60
Neurology                      5%    *
Mileage: Neurology                                 14.45
Neurology Follow Up            5%    *
Mileage: Neurology Follow Up   4%                                 5.78           5.78           5.78           5.78           5.78
ER                             5%    *
Hospitalization                5%    *
Venous Duplex                  5%    *
MRI Upper Extremity            5%    *
Mileage: MRI & Venous Duplex   4%                    6.80         6.80           6.80           6.80           6.80           6.80
MRI of Brain                   5%    *
Mileage: MRI of Brain          4%                    1.36         1.36           1.36           1.36           1.36           1.36
Individual Counseling          4%    *
Mileage: Counseling            4%                   10.61         2.12           2.12           2.12           2.12           2.12
Care Mngt                      4%        M       2,580.00     2,580.00       2,580.00       2,580.00       2,580.00       2,580.00
Hydro-morphone                 5%    *
Elavil                         5%    *
Fioricet                       5%    *
Gloves                         4%                   29.99        29.99          29.99          29.99          29.99          29.99
Thermacare Wraps               4%                  255.36       255.36         255.36         255.36         255.36         255.36
Cognitive Rehab/ Therapy       4%                1,590.00       795.00         795.00
PT                             4%    *           3,708.00
Mileage: PT                    4%                   37.54        18.77           3.75           3.75           3.75           3.75
                                                             Appendix A: Items of Compensation for Hazel Brown                                             Page 2 of 2

                                                      Lump Sum
                                                     Compensation Compensation        Compensation     Compensation     Compensation       Compensation
  ITEMS OF COMPENSATION              G.R    *   M      Year 1       Year 2              Year 3          Years 4-10        Year 11          Years 12-Life
                                                        2017         2018                2019           2020-2026          2027             2028-Life
Walker                               4%                    30.33          6.07                6.07              6.07            6.07                6.07
Shower Chair                         4%                    65.50        13.10               13.10             13.10            13.10               13.10
Hand Held Shower                     4%                    55.55          5.56                5.56              5.56            5.56                5.56
Elevated Toilet Seat                 4%                    30.70          6.14                6.14              6.14            6.14                6.14
Grab Bars                            4%                    94.54          9.46                9.46              9.46            9.46                9.46
Dressing Stick                       4%                    50.50        10.10               10.10             10.10            10.10               10.10
Hands Free Hair Dryer Holder         4%                    40.40          4.04                4.04              4.04            4.04                4.04
Reacher                              4%                    50.50          5.05                5.05              5.05            5.05                5.05
Step Stool                           4%                    29.99          3.00                3.00              3.00            3.00                3.00
Back Support                         4%                   137.99        27.60               27.60             27.60            27.60               27.60
Manual WC                            4%     *
Hospital Bed                         4%     *
Personal Care Attendant              4%         M        32,120.00        32,120.00        32,120.00       32,120.00           32,120.00      64,240.00
Home Mods                                                 1,930.00
Lost Future Earnings                                    215,507.84
Pain and Suffering                                      238,074.05
Past Unreimbursable Expenses                             18,337.49
Annual Totals                                           526,333.10        47,448.91        47,433.89       46,638.89           45,030.89      77,150.89
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 ($54,413.72), lost earnings ($215,507.84), pain and suffering ($238,074.05), and past unreimbursable
expenses ($18,337.49): $526,333.10.
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.
