                        United States Court of Federal Claims
                                                 No. 13-487V
                                    (Filed Under Seal: November 21, 2017)
                                         Reissued: December 11, 20171

                                                     )
    DAVID FAIRCHILD,                                 )
                                                     )
                              Petitioner,            )
                                                     )
    v.                                               )
                                                     )
    SECRETARY OF HEALTH AND                          )
    HUMAN SERVICES,                                  )
                                                     )
                              Respondent.            )
                                                     )

                                                    ORDER

Richard Gage, Richard Gage P.C., Cheyenne, WY, for petitioner.

Glenn Alexander MacLeod, Vaccine/Torts Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent.

SMITH, Senior Judge:

        Petitioner, David Fairchild, seeks review of a decision issued by Special Master Brian H.
Corcoran denying his request for loss of future earnings as part of his vaccine injury
compensation. Petitioner brought this action pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (2012), alleging that his bilateral brachial
plexus neuritis resulted from a tetanus vaccination. The Special Master granted compensation
but denied an award of loss of future earnings. Petitioner now moves for review of this decision.
For the reasons that follow, the Court grants petitioner’s motion, and the case is remanded to the
Special Master.

         I.      BACKGROUND

              A brief recitation of the facts provides necessary context.2

1
  An unredacted version of this opinion was issued under seal on November 21, 2017. The
parties were given an opportunity to propose redactions, but no such proposals were made.
2
   As the basic facts here have not changed significantly, the Court’s recitation of the background
facts here draws from the Special Master’s earlier Ruling on Disputed Damages Issue
(hereinafter “Ruling”), 13-487 V, ECF No. 99.
        On July 18, 2013, David Fairchild filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (hereinafter “Vaccine Act”), 42 U.S.C. §§
300aa-10 et seq. On October 30, 2013, respondent filed its Rule 4(c) Report, agreeing that the
petitioner had satisfied the legal prerequisites to receive compensation under the Vaccine Act.
As a result of this concession, the parties engaged in settlement throughout 2014, 2015, and 2016
in order to calculate a damages award. Ultimately, the parties came to an agreement on all
damages except for loss of future earnings.

        Petitioner was born on July 24, 1957. He received a tetanus vaccination on February 29,
2012, as part of a required company physical. As a result of that vaccination, petitioner
developed bilateral brachial neuritis with partial diaphragm paralysis. He is on a variety of pain
medications and participates in physical therapy in an effort to combat the effects of his
disability.

        As of the date of the Special Master’s ruling on disputed damages, petitioner was
employed as the Director of Engineering and Reliability at Olin Corporation (“Olin”). Prior to
receiving that position, petitioner was employed at Olin for more than ten years, serving in a
variety of supervisory roles. As the Director of Engineering and Reliability, petitioner oversaw
machine maintenance and repair, guaranteed the machinery had proper oversight, and provided
guidance and expectations for meeting strategic planning goals, in addition to a variety of other
managerial duties. Petitioner was expected to work until he was 66.5 years old, or until the end
of 2023, at which point he would have been employed by Olin for approximately 18 years.

         Petitioner argues that, due to the irreparable harm caused by his vaccination, he will soon
lose his ability to work. As a result of his anticipated inability to perform the essential functions
of his job, petitioner posits that he is entitled to $720,204.00 in lost future wages. Respondent
argues that petitioner is capable of continuing to work through his preferred date of retirement
and is, thus, not entitled to lost future wages. However, respondent agrees that, if petitioner were
to receive an award for future earnings, it should be for $720,204.00.

        Throughout the course of proceedings, both petitioner and respondent filed expert reports
from a variety of sources to support their positions on whether petitioner was eligible for loss of
future earnings. Petitioner submitted evidence from Dr. Sharon Farber, his treating neurologist,
and from Dr. Robert Catanese, Ph.D., his neuropsychologist. Petitioner also included reports
from his vocational expert, Mr. Allan S. Billehus. In response, respondent included reports from
life care planner, Nurse Lara E. Fox, and vocational expert, Mr. Edward L. Bennett. Petitioner
then filed a rebuttal opinion from his own life care planner, Nurse Tresa Johnson.

       The Special Master engaged in a review of the evidence, and, on April 13, 2017, Special
Master Corcoran ultimately determined that petitioner was not entitled to lost future earnings.
Upon making that determination, the Special Master ordered the parties to incorporate that
determination into a proffer that would be a basis for a decision awarding petitioner
compensation. Petitioner filed a Motion for Reconsideration on May 3, 2017, in light of new
evidence, namely Olin’s ongoing disability evaluation. Petitioner’s Renewed Motion to
Reconsider, ECF No. 103, at 1. The Special Master denied the Motion for Reconsideration on
June 20, 2017. Order Denying Motion for Reconsideration (hereinafter “Order on Recon.”),

                                                -2-
ECF No. 106. The Special Master issued his final decision on damages on July 28, 2017.
Decision Finding Entitlement and Awarding Damages (hereinafter “Decision”), ECF No. 113, at
2. Petitioner filed its Motion for Review on August 28, 2017. Memorandum of Objections
(hereinafter “MFR”), ECF No. 116. Respondent filed its Response to Petitioner’s Motion for
Review on September 26, 2017. Respondent’s Memorandum in Response to Petitioner’s Motion
for Review (hereinafter “Resp. MFR”), ECF No. 123. Oral Argument on the Motion for Review
was held on November 15, 2017. This case is now fully briefed and ripe for review.

   II.     DISCUSSION

        Under the Vaccine Act, this Court may review a special master’s decision upon the
timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)-(2). In that instance, the Court
may: “(A) uphold the findings of fact and conclusions of law. . . , (B) set aside any findings of
fact or conclusion of law. . . found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. . . , or, (C) remand the petition to the special master for
further action in accordance with the court’s direction.” Id. at § 300aa-12(e)(2)(A)-(C).
Findings of fact and discretionary rulings are reviewed under an “arbitrary and capricious”
standard, while legal conclusions are reviewed de novo. Munn v. Sec’y of Health & Human
Servs., 970 F.2d 863, 870 n. 10 (Fed. Cir. 1992); see also Doyle ex rel. Doyle v. Sec’y of Health
& Human Servs., 92 Fed. Cl. 1, 5 (2010).

        Within this framework, petitioner makes four numbered objections to the April 13, 2017
Ruling and the July 28, 2017 Decision. See MFR at 1. First, petitioner asserts that the Special
Master abused his discretion in not staying proceedings until Mr. Fairchild’s employer made its
final disability determination in October of this year (2017). Id. Second, petitioner argues that
the Special Master acted arbitrarily and capriciously in denying loss of future earnings damages.
Id. Third, petitioner alleges that the Special Master erred as a matter of law by increasing the
burden of proof on Mr. Fairchild when reconsidering his interlocutory ruling. Id. Finally,
petitioner posits that the Special Master erred as a matter of law when he reasoned that Mr.
Fairchild was not entitled to loss of future earnings damages because he was already receiving
damages for pain and suffering. Id.

        This Court’s review is primarily focused on whether the decision of the Special Master
not to stay proceedings pending the outcome of Olin’s disability determination was arbitrary and
capricious or an abuse of discretion. Petitioner posits that “Olin’s decision to place Mr. Fairchild
on long-term disability will have a direct impact on this proceeding,” because such a decision
would be outcome-determinative. MFR at 25. In his Order denying reconsideration, the Special
Master indicates that, based on the record at that time, petitioner “has been unable to show
through reliable, persuasive evidence that his vaccine injury more likely than not forced him to
retire and rendered him completely unable to ever work again.” Order on Recon. at 7. The
Special Master determined that “any lost future earnings remain purely speculative.” Id.
However, the Special Master failed to consider that the forthcoming long-term disability
determination could remove such a speculative haze.

       While this Court does not agree that Olin’s long-term disability decision would
necessarily be outcome-determinative, it is impossible to deny the relevance of such a decision in

                                               -3-
determining whether petitioner is entitled to loss of future earnings. At the very least, Olin’s
long-term disability determination should have been considered, and staying proceedings in
order to include petitioner’s disability report would not have been unduly burdensome or
contrary to the interests of justice. In failing to stay proceedings pending the completion of
Olin’s disability report, the Special Master based his findings on an incomplete record in a clear
abuse of discretion. As such, this case must be remanded for further review.

        Finally, this Court understands and respects the discretion inherent in a Special Master’s
decision on whether or not to hold a hearing. However, a decision not to hold a hearing may
sometimes be to the detriment of the Special Master’s review of a case. This case is clearly very
complicated, with a number of different experts proffering a variety of different findings, and it
seems obvious to this Court that a hearing would help clarify the complex issue of petitioner’s
disability and potential loss of future earnings. While the decision not to hold a hearing remains
within the bounds of the Special Master’s discretion, this Court would encourage the Special
Master to consider holding a hearing during the next stages of his review. There certainly are
some cases where the lack of a hearing would be an abuse of discretion.

        The Court would also note that it is aware that the Special Masters are both understaffed
and carry excessively large dockets. The Court understands that the Special Masters work long
and hard. They have carried a huge burden over the last several years, and the Court is aware of
their need for additional help and resources. Unfortunately, the Court has no power to provide
these resources. The Court, however, still has the duty to ensure individual petitioners are not
short-changed of their rights.

    III.     CONCLUSION

        After a thorough review of the Ruling and Decision of the Special Master, as well as the
parties’ briefs, the Court has determined that this case would benefit from further review. As
such, this case is REMANDED to the Special Master for further review. The Special Master is
ORDERED to consider the long-term disability decision created by petitioner’s employer in his
evaluation of petitioner’s potential lost future wages. If necessary, a hearing should be held.3

           IT IS SO ORDERED.


                                                    s/   Loren A. Smith
                                                   Loren A. Smith,
                                                   Senior Judge




3
  This order shall be unsealed, as issued, after December 6, 2017, unless the parties, pursuant to
Vaccine Rule 18(b), identify protected and/or privileged materials subject to redaction prior to
that date. Said materials shall be identified with specificity, both in terms of the language to be
redacted and the reasons therefor.
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