Dillenbeck v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
No. 17-428V
(Filed: February 6, 2020) 1
*********************** *
*
GAYLE DILLENBECK, *
* National Childhood Vaccine Injury
Petitioner, * Act, 42 U.S.C. §§ 300aa-1 et seq.;
* Damages for Lost Wages and Pain
v. * and Suffering; Loss of Earnings To
* Be Determined In Accordance With
SECRETARY OF HEALTH AND * Generally Recognized Actuarial
HUMAN SERVICES, * Principles and Projections; 42
* U.S.C. § 300aa-15(a)(3)(A);
Respondent. * Remand.
*
*********************** *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, 1717 K Street NW, Suite 900,
Washington, D.C. 20006, for Petitioner.
Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, Alexis B. Babcock, Julia M.
Collison, United States Department of Justice, Civil Division, Torts Branch, P.O. Box 146,
Benjamin Franklin Station, Washington, D.C. 20044, for Respondent.
_________________________________________________________
OPINION AND REMAND ORDER
_________________________________________________________
WILLIAMS, Senior Judge.
In the underlying action before the Special Master, Petitioner claimed that she developed
Guillain-Barré syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccination, and
sought compensation under the National Vaccine Injury Compensation Program. Respondent
conceded that Petitioner satisfied the Table criteria for a flu/GBS injury, and the Special Master
ruled that Petitioner was entitled to compensation. After a hearing, the Special Master issued a
damages decision awarding Petitioner $180,857.15 in pain and suffering, $38,824.90 in past lost
wages, and $2,314.59 in unreimbursed out-of-pocket expenses. The Special Master did not award
1
Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the
Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The
parties did not propose any redactions. Accordingly, the Court publishes this Opinion.
Petitioner future lost wages. Petitioner and Respondent timely filed cross-motions for review of
the Special Master’s decision.
Petitioner argues that the Special Master should have awarded Petitioner future lost wages
as he granted past lost wages, and that he undervalued Petitioner’s award for pain and suffering.
Respondent argues that the award of past lost wages through the date of the Special Master’s July
29, 2019 damages decision was arbitrary, as that date had no legal significance and was unrelated
to Petitioner’s health or employment. Respondent also argues that the Special Master erred by
failing to offset Petitioner’s past lost wages award for taxes and state unemployment payments.
The Court finds that the Special Master’s pain and suffering award was not an abuse of
discretion, and affirms that award. However, in determining lost wages, the Special Master did
not articulate a rational basis for his choice of July 29, 2019, as the hypothetical date Petitioner’s
employment would have ended absent her vaccine injury. As such, the Special Master’s lost wages
determinations are remanded for reevaluation “in accordance with generally recognized actuarial
principles and projections,” as required by the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A) and
further development of the record.
Factual Background 2
On October 30, 2015, Petitioner received the flu and pneumococcal conjugate vaccines at
her primary care provider’s office. ECF No. 51 at 2. At the time of the vaccinations, Petitioner
was 61 years old and had a history of rheumatoid arthritis, asthma, bone/joint problems, and
anxiety. Id. Petitioner was employed as a receptionist and uncertified veterinary technician (“vet
tech”) at Bloomingdale Animal Hospital (“Bloomingdale”) in Bloomingdale, Illinois, and had held
this job for ten years. 3 Id. Approximately three weeks after the vaccinations, following a
gallbladder surgery, Petitioner reported numbness in her feet and was assessed to have an ataxic
gait. Id. Following a worsening of her symptoms, she was diagnosed with GBS in early December
2015. Id. After hospitalization for treatment, Petitioner was released on December 13, 2015, and
continued outpatient physical therapy until the end of January 2016. ECF No. 51 at 2; ECF No.
53 at 2.
Petitioner was able to walk independently by January 20, 2016, and had improved
significantly as of late February 2016. ECF No. 53 at 2; ECF No. 51 at 2-3. However, Petitioner
still reported paresthesia in her hands and feet, reduced grip strength, absent reflexes, and a “wide-
based gait.” ECF No. 51 at 3. Petitioner was cleared to return to work, subject to a 15-pound
lifting restriction, on February 17, 2016, and she returned to work at Bloomingdale on March 1,
2016. ECF 51 at 3; ECF No. 53 at 3.
Altogether, due to her gallbladder surgery and subsequent GBS treatment, Petitioner was
out of work from November 15, 2015, through February 29, 2016, and the Special Master found
2
This background is derived from the Special Master’s damages decision, and the parties’
motions papers.
3
Although the Special Master found that Petitioner was a part-time employee at
Bloomingdale prior to her vaccination, Petitioner contends that she was working 35-38 hours per
week, which “was considered full-time employment with Bloomingdale.” ECF No. 56 at 3.
2
that the date of onset of Petitioner’s GBS symptoms was November 22, 2015. ECF No. 51 at 2,
n.4; ECF No. 51 at 12. On February 16, 2016, while Petitioner was recovering at home, a new
Illinois state regulation came into effect which imposed increased restrictions and supervision
requirements on uncertified vet techs. ECF No. 51 at 10; ECF No. 53 at 2-3. The Special Master
found that the Illinois regulation:
in essence prohibited [Petitioner] from continuing to work as a vet tech without a
state license. The regulation does not, however, expressly prohibit a clinic from
hiring an uncertified vet tech, although it limits the duties an uncertified technician
may perform unsupervised . . . and requires direct supervision by a veterinarian for
any other required task (thus limiting the degree to which a veterinary practice
might utilize a vet tech for performance of acts it might otherwise rely on her to do
independently).
ECF No. 51 at 10. When Petitioner returned to work on March 1, 2016, Bloomingdale assigned
her work as a receptionist, not a vet tech, at her pre-vaccination 2015 wage of $14.50/hour. ECF
No. 53 at 3. In April 2016, Petitioner visited her neurologist, Dr. Vipan Gupta, and asked him to
remove the 15-pound lifting restriction, as she was able to lift her 70-pound dog at home without
issue. Id. at 3. On April 29, 2016, Dr. Gupta sent a letter informing Bloomingdale that Petitioner
was “cleared to work without restrictions” as of that date. Ex. 16 at 9. A little over two weeks
later and six months after her vaccination, Bloomingdale terminated Petitioner’s employment on
May 16, 2016, citing her “unsatisfactory performance,” “slow decline over [the] past year,” and a
“lack of hours.” Ex. 16 at 8.
Petitioner’s employment evaluations for the years 2012 and 2013, which pre-date her 2015
vaccination, noted issues with her customer service skills and efficiency. Ex. 16 at 118-21.
Petitioner’s 2013 evaluation stated that that her supervisor had met with Petitioner “a few times
over the past year about customer [service] skills” and while Petitioner was “very receptive, . . .
this area still need[s] continued improvement.” Id. at 120. These evaluations never threatened
any adverse employment consequences.
Three weeks following her termination from Bloomingdale, Petitioner found alternative
employment, working as a receptionist at two other veterinary clinics and as a pharmacy
technician. ECF No. 51 at 7. Petitioner presently works full-time as a receptionist at Army Trail
Animal Hospital in Bartlett, Illinois for $13 per hour. Id. at 5. Though Petitioner’s health has
improved, it has not returned to baseline, with Petitioner estimating that she has regained 75 to 80
percent of her pre-illness strength. Id. Petitioner continues to experience GBS sequelae, including
a lack of sensation in her hands and feet and loss of grip strength. Id.
Procedural History
On March 27, 2017, Petitioner filed a petition seeking compensation under the National
Vaccine Injury Compensation Program, (“Vaccine Program”) 42 U.S.C. § 300aa–10, et seq.,
alleging that her GBS was the result of her October 30, 2015 flu vaccine. ECF No. 1. Several
months later, Respondent conceded that Petitioner satisfied the criteria in the Vaccine Injury Table
and the “Qualifications and Aids to Interpretation for a Flu/GBS Table Injury,” and the Special
Master ruled that Petitioner was entitled to compensation on October 23, 2017. ECF Nos. 14, 15.
The Special Master held a hearing on damages on February 19, 2019. ECF 51 at 2.
3
On July 29, 2019, the Special Master issued his damages opinion awarding Petitioner a
total of $221,996.64, including $180,857.15 in pain and suffering, $38,824.90 in past lost wages
and $2,314.59 in unreimbursed out-of-pocket expenses. Id. at 22. The Special Master did not
award Petitioner future lost wages based on his finding that, absent her vaccine injury,
Bloomingdale would have continued to employ her up until the July 29, 2019 date of his damages
decision, but no further. Id. at 16-17. On August 28, 2019, Petitioner and Respondent timely filed
cross-motions for review of the Special Master’s damages award with this Court. ECF Nos. 53,
55.
Discussion
Jurisdiction and Standard of Review
Congress created the Vaccine Program as a “Federal ‘no-fault’ compensation program
under which awards can be made to vaccine-injured persons quickly, easily, and with certainty
and generosity.” H.R.Rep. No. 99-908, at 3 (1986). To that end, “Congress assigned to a group
of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting
through these painful cases and, based on their accumulated expertise in the field, judging the
merits of the individual claims.” Hodges v. Sec’y of Dep't of Health & Human Servs., 9 F.3d 958,
961 (Fed. Cir. 1993).
In Vaccine Act cases, the Court of Federal Claims has jurisdiction to undertake a review
of the record of the proceedings and may:
(A) uphold the findings of fact and conclusions of law and sustain the special
master’s decision, (B) set aside any of the findings of fact or conclusions of law of
the special master found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law and issue its own findings of fact and
conclusions of law, or (C) remand the petition to the special master for further
action in accordance with the court’s direction.
42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); Doe 93 v. Sec’y of Health & Human Servs., 98 Fed.
Cl. 553, 564-65 (2011).
“Findings of fact of the special master are reviewed under the arbitrary and capricious
standard, conclusions of law are reviewed under the not in accordance with law standard, and
discretionary rulings are reviewed under the abuse of discretion standard.” Broekelschen v. Sec’y
of Health & Human Servs., 89 Fed. Cl. 336, 343 (2009), aff’d, 618 F.3d 1339 (Fed. Cir. 2010)
(internal citations and quotation marks omitted).
The Federal Circuit has held
An abuse of discretion occurs when (1) the court's decision is clearly unreasonable,
arbitrary or fanciful (2) the decision is based on an erroneous conclusion of law (3)
the court's findings are clearly erroneous; or (4) the record contains no evidence on
which the [] court rationally could have based its decision.
Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986) (internal citations
and quotation marks omitted).
4
In Snyder ex rel. Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706 (2009), Chief
Judge Sweeney encapsulated the interplay between the Special Masters’ Congressionally-
sanctioned discretion over evidentiary proceedings and the responsibility of reviewing courts,
stating:
In sum, when considering the provisions and legislative history of the Vaccine Act,
the language of the Vaccine Rules, and the case law, one factor that has remained
constant in the Vaccine Program is the necessary and important role of special
masters in conducting proceedings and rendering decisions in Vaccine Act cases.
The special masters have great leeway in how they conduct proceedings, including
what evidence to consider and how to weigh that evidence, and their credibility
determinations and fact-intensive conclusions are afforded great deference.
However, this is not to suggest that the special masters are infallible and that their
final decisions are sacrosanct. To be sure, the Court of Federal Claims on review,
and the Federal Circuit on appeal, do not merely rubber stamp special master final
decisions. Decisions from both courts demonstrate a willingness to reverse the
decision of a special master when the special master has failed to adequately
develop the record, failed to consider facts critical to the case, failed to give
adequate consideration to a viable medical theory, or otherwise misapplied the law.
Id. at 718.
The Special Master’s Award of $180,857.15 in Pain and Suffering Damages Was Not an
Abuse of Discretion
Under the Vaccine Act, a Special Master may award an amount “not to exceed $250,000”
for “actual and projected pain and suffering and emotional distress from [a] vaccine-related
injury.” 42 U.S.C. § 300aa-15(a)(4).
Here, Petitioner claims that the Special Master’s grant of $180,857.15 for Petitioner’s past
pain and suffering was “too low given what petitioner has been through, the legislative history of
the [Vaccine] Act and comparable awards in settled cases.” ECF No. 51 at 22; ECF No. 56 at 14.
Petitioner cites her “physical pain,” the “loss of her profession,” and her inability to “take long
walks” and to care for her dogs, among other factors, as supporting a higher pain and suffering
award. ECF No. 56 at 15-16. With respect to the loss of her status as a vet tech, Petitioner testified
that she does not intend to become certified to perform this work, despite the change in Illinois
law. Hr’g. Tr. 116-19. Petitioner references “numerous flu-GBS cases,” litigated by Petitioner’s
counsel’s law firm, which settled for “between $200,000 and $250,000 in pain and suffering, much
higher values than awarded here.” ECF No. 56 at 16. However, the Special Master found that,
“because these [settlements] do not reflect reasoned determinations setting forth the logic for [the
amounts of] each award, their persuasive value is limited.” ECF No. 51 at 18.
Contrary to Petitioner’s assertions, the Special Master properly took into account a full
range of considerations in his pain and suffering determination, including Petitioner’s health and
ongoing sequelae, his personal observation of Petitioner’s condition, Petitioner’s inability to
engage in certain activities, as well as the amount of compensation awarded in three comparable
5
cases. 4 The Special Master noted that Petitioner herself testified that she had regained “roughly
seventy-five to eighty percent of her pre-illness strength.” Id. at 5, 19. While other petitioners
experienced “significantly worse outcome[s]” from flu/GBS injuries, Petitioner here was able to
“return to work not long after her hospitalization,” and currently works full-time. Id. at 18-19.
The Special Master appreciated “the personal cost of [Petitioner] having to suffer with GBS
initially and her recovery in the months following, as well as the role it may have played in
negatively impacting her ongoing employment at Bloomingdale in her preferred position.” ECF
No. 51 at 19. He stated “[h]aving seen [Petitioner] at hearing, I am convinced that she was
negatively impacted by her GBS in many ways, and that she will have to live with the results of it
for the remainder of her life.” Id. at 21. As such, the Special Master weighed both Petitioner’s
“actual and projected pain and suffering” consistent with the mandate of the Vaccine Act. 42
U.S.C. § 300aa-15(a)(4).
Petitioner has not demonstrated that the Special Master’s award of pain and suffering
damages was too low as compared to other decisions or that the Special Master failed to consider
any pertinent information in arriving at his pain and suffering determination. Accordingly, the
Special Master’s decision is affirmed as to the pain and suffering award.
The Special Master Did Not Comply with the Vaccine Act in Awarding Lost Earnings Up
Until, But No Later Than, July 29, 2019.
Both parties challenge the Special Master’s factual finding that, but for Petitioner’s
vaccine-related injury, Bloomingdale would have employed Petitioner until, but no later than, July
29, 2019. Aside from being the date of the Special Master’s damages decision, that date had no
relation to any factual evidence, expert opinion, or legal principle involved. See ECF No. 53 at 8;
ECF No. 56 at 13.
Respondent challenges the Special Master’s decision to award past lost wages at all,
arguing that the Special Master abused his discretion by finding that Bloomingdale would have
continued to employ Petitioner, an uncertified vet tech, after the Illinois law change in February
2016. Respondent further argues that the Special Master’s choice of the July 29, 2019 date was
arbitrary because “this date had no significance to petitioner’s career,” and record evidence
suggested that, due to the change in Illinois law in early 2016 tightening restrictions on
employment of uncertified vet techs like Petitioner, she likely “would not have been able to
continue work as a vet-tech or at her pre-vaccination employer well before the date of the damages
hearing, regardless of her GBS diagnosis.” ECF No. 53 at 8.
4
These Vaccine Program cases involved flu/GBS injuries, including one with a $180,000
pain and suffering award. See Johnson v. Sec’y of Health & Human Servs., No. 16-1356V, 2018
WL 5024012, at *9 (Fed. Cl. Spec. Mstr. July 20, 2018). In Johnson, the petitioner was 61 years
old at the time of her flu vaccine, and experienced similar GBS sequelae to Petitioner, including
persistent fatigue and residual numbness in her legs and feet. Id. at *7-8; see also Gipson v. Sec’y
of Health & Human Servs., No. 17-1651V, 2019 WL 1451312, at *1 (Fed. Cl. Spec. Mstr. Feb.
25, 2019) (awarding $175,000 in pain and suffering where the flu/GBS vaccine injury resulted in
the petitioner’s death).
6
Petitioner, in turn, argues that the Special Master was wrong to limit damages to July 29,
2019, and deny Petitioner future lost wages. ECF No. 56 at 1. Petitioner contends that the grant
of past lost wages was inconsistent with the denial of future lost wages when Petitioner’s health
had remained unchanged for several years. In addition, Petitioner contends that the Special Master
inconsistently weighed Petitioner’s documented job performance issues in assessing her
termination from Bloomingdale. ECF No. 56 at 1, 11, 13.
In his decision, the Special Master found that “Petitioner’s entitlement to past lost wages
largely turns on whether she could have reasonably expected to continue to work as a vet tech
despite her injury – and if so, for how long.” ECF No. 51 at 13. After weighing the evidence, the
Special Master determined Petitioner was entitled to lost past wages because “preponderant
evidence just barely supports the conclusion that [Petitioner] lost her Bloomingdale job due to her
GBS sequelae.” Id. at 14.
In calculating Petitioner’s past lost wages, the Special Master reasoned:
[T]he remaining question is whether [Petitioner] should receive past lost wages,
based on the differential between her Bloomingdale pay and what she received from
the other jobs she briefly held for the subsequent periods. I find that she should . . .
This determination turns on my finding that it is likely, based on the evidence
presented, that [Petitioner] could have maintained her vet tech job at Bloomingdale
for some additional period of time, but for the physical limitations brought on by
GBS . . . I find that preponderant evidence just barely supports the conclusion that
[Petitioner] lost her Bloomingdale job due to her GBS sequelae. Because of the
above, I will use [Petitioner’s] Bloomingdale salary of $14.50 per hour as a basis
to compare what she earned from the date of termination through today, awarding
her the difference when she earned less (or nothing, while she was unemployed).
The Illinois law change did not preclude her continued employment in this period
at Bloomingdale, and (despite the evidence of prior issues in her work performance)
I do not find it likely that she would have been terminated that year, or even
thereafter for the next almost two years, simply due to the change . . . .
ECF No. 51 at 14-15. In a footnote, the Special Master stated:
I acknowledge that there is some inexactitude in determining that [Petitioner] could
likely have continued to work at Bloomingdale until today, rather than some earlier
date. Arguably the vet tech certification changes, coupled with the record evidence
of performance problems, together mean that Petitioner could not reasonably have
expected to maintain her Bloomingdale position for such a long period of time, and
therefore my calculation should end at an earlier date (perhaps as early as the end
of 2016). However, my overall weighing of the evidence – which takes into
account [Petitioner’s] continued GBS sequelae, the fact that she worked at
Bloomingdale for many years before her injury, and the Vaccine Program’s
mandate of generosity - leads me to conclude that a fair past lost wages award
should be so calculated, and that to do so is not arbitrary.
7
Id. at 15, n. 15. 5
The Special Master found that Petitioner’s entitlement to future lost wages was
“dependent on the finding that she could have indefinitely maintained her position at
Bloomingdale, or some place similar, as a vet tech but for her vaccine injury.” Id. at 16.
The Special Master found that there were “substantial reasons to doubt that supposition,”
stating:
[A]lthough I was able to determine that evidence relating to Petitioner’s
employment history barely preponderated in favor of a finding that she likely could
have continued to work at Bloomingdale through today as a vet tech (consistent
with her pre-vaccination status), I find it wholly speculative based on the same
record to conclude that [Petitioner] could work as a vet tech at Bloomingdale
beyond the present time period. It is here that Petitioner’s documented record of
performance issues at Bloomingdale becomes important. For, although I found that
the record was close when it came to determining if her 2016 termination was
attributable to performance problems or her GBS-related physical limitations, that
same employment record (which suggests Petitioner’s performance issues long pre-
dated vaccination) does not permit the conclusion that she likely could have stayed
there indefinitely. The combination of personnel issues and changes in the law do
not preponderate in her favor.
Id. at 17 (emphasis in original). Accordingly, the Special Master found it “too speculative to
assume Petitioner could have maintained her position as a vet tech [past July 29, 2019] absent her
ensuing injury” and denied future lost wages. Id.
As a preliminary matter, this Court affirms the Special Master’s factual finding that
Bloomingdale terminated Petitioner due to her GBS sequelae, as record evidence supports this
conclusion. Acknowledging that it was a close question, the Special Master drew plausible
inferences from Petitioner’s ten-year history of employment at Bloomingdale, the fact that
Bloomingdale did not cite the change in Illinois regulations or Petitioner’s uncertified status as
reasons for her termination, and the short time (roughly six months) separating her GBS/flu injury
and termination.
However, regarding the amount of lost wages awarded, the Special Master failed to adduce
actuarial evidence as required by the Vaccine Act. Specifically, the Vaccine Act mandates that
compensation awarded under the Vaccine Program “shall include . . . compensation for actual and
anticipated loss of earnings determined in accordance with generally recognized actuarial
principles and projections.” 42 U.S.C. § 300aa-15(a)(3)(A) (emphasis added). 6 Nor did the
5
This past lost wages award included compensation at Petitioner’s Bloomingdale salary
rate of $14.50 per hour for the 17 weeks Petitioner was out of work and the difference between
$14.50 and her actual salary for the time Petitioner was employed from November 22, 2015 until
July 29, 2019. Id. at 15-16.
6
The Special Master noted in his damages decision that “calculation of lost earnings
damages must be performed in a ‘cautious manner in accordance with generally recognized
actuarial principles and projections.’” ECF No. 51 at 12 (citing Brown v. Sec’y of Health &
8
Special Master explain why lost wages up until the particular date of July 29, 2019, were
warranted.
With no connection to Petitioner’s health or employment or actuarial principles or
projections, the Special Master’s determination that lost wages should end on the date of his
decision failed to comply with the Vaccine Act’s requirement that lost wages be determined “in
accordance with generally recognized actuarial principles and projections.” 42 U.S.C. § 300aa-
15(a)(3)(A).
Relevant Evidence in Lost Wages Determinations
The Federal Circuit has not interpreted what qualifies as “generally recognized actuarial
principles and projections.” The Vaccine Act “does not envision that ‘anticipated loss of earnings’
includes speculation.” See J.T. v. Sec'y of Health & Human Servs., No. 12-618V, 2015 WL
5954352, at *7 (Fed. Cl. Spec. Mstr. Sept. 17, 2015) (rejecting petitioner’s “speculative” claim for
lost earnings from a business he had never started).
Decisions interpreting “actuarial principles” in the broader context of other federal and
state statutes have required actuarial data and expert opinions. See, e.g., Chabner v. United of
Omaha Life Ins. Co., 994 F. Supp. 1185, 1194 (N.D. Cal. 1998), aff'd, 225 F.3d 1042 (9th Cir.
2000) (holding that “sound actuarial principles” under the Americans with Disabilities Act “must
. . . include reference to some sort of actuarial data either in the form of actuarial tables or clinical
studies estimating mortality rates”); Fleisher v. Phoenix Life Ins. Co., 18 F. Supp. 3d 456, 480
(S.D.N.Y. 2014) (considering conflicting expert testimony when analyzing “accepted actuarial
principles” under a New York statute).
This Court recognizes that the determination of compensation for lost earnings “in
accordance with generally recognized actuarial principles and projections” would likely require
expert opinion evidence. As one district court explained:
In this Court’s experience, when calculating future lost wages, economists typically
rely on other experts—such as vocational rehabilitation experts—to advise them as
to the income a plaintiff can probably earn due to his injuries. Economists then use
that information in conjunction with actuarial data to estimate the wage loss the
plaintiff will probably sustain over the course of his lifetime.
Dunmiles v. Jubilee Towing, LLC, No. CV 16-14325, 2017 WL 1212091, at *4 (E.D. La. Apr. 3,
2017). See LaMorte v. Penn Cent. Transp. Co., 450 F.2d 956, 957 (3d Cir. 1971) (affirming award
of lost earnings supported by actuarial testimony); Fitzpatrick v. United States, 754 F. Supp. 1023,
1037 (D. Del. 1991) (denying compensation for lost wages under the Federal Tort Claims Act
where plaintiff failed to produce “actuarial expert” testimony that “would have allowed the Court
to make an award for lost wages for [the plaintiff’s] services”).
Petitioner in this case presented limited evidence of this nature. The only such evidence is
a one-page letter dated March 13, 2018, from a Vocational Rehabilitation specialist, who opined
that “it is highly unlikely that [Petitioner] will ever again be able to obtain employment as a
Human Servs., No. 00-0182V, 2005 WL 2659073, at *6-8 (Fed. Cl. Spec. Mstr. Sept. 21, 2005)).
However, his decision included no citation to or analysis of actuarial evidence.
9
Veterinary Technician.” Pet’s Ex. 14 at 1. However, the Special Master did not explain how this
opinion letter informed his award of lost earnings through July 29, 2019. The Special Master only
referenced the letter when detailing how Petitioner herself had calculated her future lost wages
claim. In this Court’s view, a one-page letter from a Vocational Specialist is not sufficient to
satisfy the Vaccine Act’s mandate for application of “generally recognized actuarial principles and
projections” in awarding lost earnings.
The decision in Brown v. Sec'y of Dep't of Health & Human Servs., No. 00-0182V, 2005
WL 2659073 (Fed. Cl. Spec. Mstr. Sept. 21, 2005), is instructive of what evidence Special Masters
have considered under similar circumstances. In that case, the Special Master was tasked with
determining lost wages when a “talented young executive who was being groomed for upper
management” contracted GBS after a tetanus vaccination. Id. at *1, 7. The respondent argued that
the petitioner had failed to demonstrate any lost earnings because the petitioner “continued to retain
employment following the vaccine related injury and eventually lost his position, not necessarily
as a result of the injury, but due to other corporate considerations.” Id. at *7.
At a hearing on damages, the Special Master in Brown heard testimony from “an expert in
employment and vocational rehabilitation,” as well as from “two well-qualified economists”
specializing in economic and personal loss evaluations, including loss resulting from injury or
death. Id. at *1, n. 1-2. These experts presented a range of evidence, including the petitioner’s
average work-life expectancy absent the vaccine injury, the precise reduction in salary attributable
to the injury, and the petitioner’s pre-injury anticipated average annual salary growth rates. See
also Petronelli v. Sec'y of Health & Human Servs., No. 12-285V, 2016 WL 1085455, at *2 (Fed.
Cl. Spec. Mstr. Feb. 22, 2016) (considering expert evidence as to the petitioner’s anticipated salary
based on her specific profession and locality). Additionally, the petitioner in Brown presented
“persuasive fact witness testimony” from several witnesses establishing that he lost a valuable
promotion “as a direct result of his injury and extended hospitalization.” 7 2005 WL 2659073 at
*7. Based on the evidence, the Special Master in Brown awarded both past and future lost wages.
Id. at *7-11.
By statute, the Special Master may require whatever evidence “as may be reasonable and
necessary.” 42 U.S.C. § 300aa-12(d)(3)(B)(i)-(iii). In keeping with the “inquisitorial format” of
Vaccine Program proceedings, Special Masters exercise unique control over the evidence to be
adduced and considered. Snyder ex rel. Snyder v. Sec'y of Health & Human Servs., 88 Fed. Cl.
706, 738 (2009) (citing H.R.Rep. No. 101-386, at 87). The Federal Circuit has emphasized that
“Congress desired the special masters to have very wide discretion with respect to the evidence
they would consider and the weight assigned to that evidence.” Whitecotton by Whitecotton v.
Sec’y of Health & Human Servs., 81 F.3d 1099, 1108 (Fed. Cir. 1996). The Vaccine Act states:
7
By contrast, at the damages hearing in the instant case, the Special Master heard testimony
from four witnesses: Petitioner, her son, Shawn Dillenbeck, her daughter, Miranda Szydzik, and
her son-in-law, Andrew Szydzik. ECF No. 51 at 4-10. Aside from Petitioner, these witnesses
testified mainly to the physical symptoms of petitioner’s GBS, its effects on her life, and her
continuing sequelae. Id.
10
(B) In conducting a proceeding on a petition a special master--
(i) may require such evidence as may be reasonable and necessary,
(ii) may require the submission of such information as may be reasonable and
necessary,
(iii) may require the testimony of any person and the production of any documents
as may be reasonable and necessary,
(iv) shall afford all interested persons an opportunity to submit relevant written
information—
(I) relating to the existence of the evidence described in section 300aa-
13(a)(1)(B) of this title, or
(II) relating to any allegation in a petition with respect to the matters
described in section 300aa-11(c)(1)(C)(ii) of this title, and
(v) may conduct such hearings as may be reasonable and necessary.
42 U.S.C. § 300aa-12(d)(3)(B).
Vaccine Rule 3(b) states:
The special master is responsible for conducting all proceedings, including taking
such evidence as may be appropriate, making the requisite findings of fact and
conclusions of law, preparing a decision, and determining the amount of
compensation, if any, to be awarded; and endeavoring to make the proceedings
expeditious, flexible, and less adversarial, while at the same time affording each
party a full and fair opportunity to present its case and creating a record sufficient
to allow review of the special master’s decision.
The Court of Federal Claims may remand a vaccine case to the Special Master “for further
development of the evidentiary record, as well as additional fact-finding.” See Hokkanen v. Sec’y
of Health & Human Servs., 94 Fed. Cl. 300, 302 (2010); 42 U.S.C. § 300aa–12(e)(2). The Court
may instruct the Special Master to hold additional evidentiary proceedings, allow testimony from
new witnesses, and “prepare a decision that reasonably analyzes all of the relevant evidence of
record.” See Boley v. Sec’y of Health & Human Servs., 82 Fed. Cl. 407, 408-14 (2008). Here,
because the Special Master’s past and future lost wages determinations did not reference actuarial
considerations, both the past and future lost wages calculations are remanded for further
development of the record and consideration of “generally recognized actuarial principles and
projections.” 42 U.S.C. § 300aa-15(a)(3)(A).
Offsets to Vaccine Act Compensation
Respondent argues that the Special Master erred “because he did not apply appropriate
offsets” for applicable taxes and state unemployment benefits to Petitioner’s lost earnings award.
ECF No. 53 at 13. The Vaccine Act, 42 U.S.C. § 300aa-15(g), provides that “[p]ayment of
compensation under the Program shall not be made for any item or service to the extent that
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payment has been made, or can reasonably be expected to be made, with respect to such item or
service . . . under any State compensation program.” Accordingly, “an award under the Vaccine
Act is offset to the extent the petitioner is entitled to receive payments from certain specified
programs.” Heinzelman v. Sec'y of Health & Human Servs., 681 F.3d 1374, 1376 (Fed. Cir. 2012).
Additionally, the Federal Circuit has stated that “it is appropriate to deduct federal and state income
taxes when determining a lost earnings award under the Vaccine Act.” Id. at 1378; Euken by
Euken v. Sec'y of Dep't of Health & Human Servs., 34 F.3d 1045, 1048 (Fed. Cir. 1994) (holding
that “FICA tax, like federal and state income taxes, is an appropriate tax to deduct in determining
a lost earnings award under the Vaccine Act”). On remand, the Special Master shall apply
appropriate tax and state compensation payment deductions to any lost wages award.
Conclusion
The Special Master’s pain and suffering award is affirmed.
The Special Master’s decision as to past and future lost wages is remanded for further
development of the record, and the Special Master is directed to reevaluate Petitioner’s entitlement
to lost wages “in accordance with generally recognized actuarial principles and projections.” 42
U.S.C. § 300aa-15(a)(3)(A).
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Senior Judge
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