Budgake v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-1150V Filed: June 11, 2015

Unpublished **************************** BARBARA BUDGAKE, *

*

Petitioner, * Damages Decision Based on Proffer;

* Influenza Vaccine (“Flu”); Shoulder * Injury Related to Vaccine Administration

SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit AND HUMAN SERVICES, * (“SPU”)

*

Respondent. *

*

**************************** Lawrence Disparti, Disparti Law Group, PA, Holiday, FL, for petitioner. Justine Walters, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

On November 25, 2014, Barbara Budgake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the “Vaccine Act” or “Program”]. Petitioner alleges that she suffered a left shoulder injury as a result of an influenza [“flu”] vaccination on January 11, 2013. Petition at 1-3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 9, 2015, I issued a ruling on entitlement, finding petitioner entitled to compensation for a shoulder injury related to vaccine administration [“SIRVA”]. On June 10, 2015, respondent filed a proffer on award of compensation [“Proffer”] detailing compensation in the amount of $920.85 for past lost earnings, $100,000.00 for actual and projected pain and suffering, and $1,537.85 for past un-reimbursable expenses for a total of $102,458.70. Proffer at 1-3.

Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $102, 458.70 in the form of a check payable to petitioner, Barbara Budgake. This amount represents compensation for all damages that would be available under § 300aa-15(a).

The clerk of the court is directed to enter judgment in accordance with this decision.3 s/Denise K. Vowell Denise K. Vowell Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS )

BARBARA BUDGAKE, )

)

Petitioner, )

) No. 14-1150V v. ) Chief Special Master Vowell

) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation

For the purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report filed on April 7, 2015.

A. Future Unreimbursable Expenses The parties agree that based upon the evidence of record, petitioner will not require future care for her vaccine-related injury. Therefore, respondent proffers that petitioner should be awarded no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1). Petitioner agrees.

B. Lost Earnings The parties agree that based upon the evidence of record, petitioner has suffered a past loss of earnings of $920.85. She will, however, continue to be gainfully employed in the future. Therefore, respondent proffers that petitioner should be awarded actual lost earnings, but not anticipated loss of earnings, as provided under 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for petitioner’s lost earnings is $920.85. Petitioner agrees.

C. Pain and Suffering Respondent proffers that petitioner should be awarded $100,000.00 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 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 $1,537.85. Petitioner agrees.

E. Medicaid Lien Petitioner represents that there are no outstanding Medicaid liens against her. II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through lump sum payments as described below and request that the Chief Special Master’s decision and the Court’s judgment award the following: 1

A. A lump sum payment of $920.85, representing compensation for actual lost earnings, in the form of a check payable to petitioner;

B. A lump sum payment of $100,000.00, representing compensation for pain and suffering, in the form of a check payable to petitioner; and

C. A lump sum payment of $1,537.85, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner: $102,458.70

Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Tort Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division s/ Justine Walters JUSTINE WALTERS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

Dated: June 10, 2015 Telephone: (202) 307-6393