Brown v. Secretary of Health and Human Services

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* * * * * * * * * * * * * HAZEL BROWN, * UNPUBLISHED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 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

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.

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

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.

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.

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

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.