Underwood v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-245V
Filed: August 13, 2014
Not for Publication
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WANDA UNDERWOOD, *
*
Petitioner, *
* Damages decision based on proffer;
v. * influenza (flu) vaccine; shoulder
* injury related to vaccine
SECRETARY OF HEALTH * administration (SIRVA)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Ronald C. Homer, Boston, MA, for petitioner.
Alexis B. Babcock, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On March 31, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a left arm and shoulder
injury secondary to the influenza (“flu”) vaccination she received on October 14, 2011. On June
30, 2014, respondent filed a Rule 4(c) Report, conceding that petitioner suffered from a shoulder
injury related to vaccine administration (“SIRVA”) and recommending compensation.
1
Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
1
On August 13, 2014, respondent filed Respondent’s Proffer on Award of Compensation.
The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole,
the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to
the terms stated in the attached proffer, the court awards:
a. a lump sum payment of $135,000.00, representing compensation for actual and
projected pain and suffering ($128,068.99) and past unreimbursed expenses
($6,931.01). The award shall be in the form of a check for $135,000.00 made payable
to petitioner; and
b. a lump sum payment of $321.38, representing compensation for satisfaction of the
State of Illinois Medicaid lien. The award shall be in the form of a check for $321.38
made payable jointly to petitioner and
Illinois Department of Healthcare and Family Services – Bureau of Collections
Technical Recovery Section
P.O. Box 19174
Springfield, IL 62794-9174
Petitioner agrees to endorse this payment to the State of Illinois.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: August 13, 2014 /s/ Laura D. Millman
by Nora Beth Dorsey
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
WANDA UNDERWOOD, )
)
Petitioner, )
) No. 14-0245
v. ) Special Master Millman
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On March 31, 2014, Wanda Underwood (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to 34.
Petitioner alleges that she received an influenza vaccine on October 14, 2011, and subsequently
suffered from a left arm and shoulder injury secondary to the vaccination. Petition at 7-8. On
June 30, 2014, the Secretary of Health and Human Services (“respondent”) filed a Vaccine Rule
4(c) Report, conceding that petitioner suffered from a shoulder injury related to vaccine
administration (“SIRVA”), and recommending that the Court award petitioner compensation.
Respondent’s Rule 4(c) Report at 5. Respondent hereby submits the following proffer regarding
the award of compensation.
I. Items of Compensation
A. Future Medical Care Expenses
Respondent proffers that based on the evidence of record, petitioner is not entitled to an
award for projected unreimbursable medical care expenses incurred from the date of judgment as
provided under 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.
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B. Lost Earnings
Respondent proffers that based upon the evidence of record, petitioner has not and is not
likely to suffer a loss of earnings as a result of her vaccine-related injury. Accordingly, the Court
should not award lost future earnings as provided under § 300aa-15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that the Court should award petitioner a lump sum of $128,068.99
for her 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 § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursable Expenses
Respondent proffers that based upon the evidence of record, petitioner has incurred past
unreimbursable expenses related to her vaccine-related injury in the amount of $6,931.01.
Petitioner agrees.
E. Medicaid Lien
Respondent proffers that Wanda Underwood should be awarded funds to satisfy the State
of Illinois lien in the amount of $321.38, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Illinois may have against any
individual as a result of any Medicaid payments the State of Illinois has made to or on behalf of
Wanda Underwood from the date of his eligibility for benefits through the date of judgment in
this case as a result of his vaccine-related injury suffered on or about October 14, 2011, under
Title XIX of the Social Security Act.
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II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made through
a lump sum payment as described below and request that the Special Master’s decision and the
Court’s judgment award the following 1:
A. a lump sum payment of $135,000.00, representing compensation for actual
and projected pain and suffering ($128,068.99) and past unreimbursed
expenses($6,931.01), in the form of a check payable to
petitioner; and
B. A lump sum payment of $321.38 representing compensation for satisfaction of the
State of Illinois Medicaid lien, payable jointly to petitioner and
Illinois Department of Healthcare and Family Services - Bureau of Collections
Technical Recovery Section
P.O. Box 19174
Springfield, IL 62794-9174
Petitioner agrees to endorse this payment to the State of Illinois.
III. Summary of Recommended Payment Following Judgment
A. A lump sum payment of $135,000.00 payable solely to petitioner; and
B. A lump sum payment of $321.38 payable jointly to petitioner and the Illinois
Department of Healthcare and Family Services.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
1
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 pain and
suffering.
3
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Alexis B. Babcock
ALEXIS B. BABCOCK
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-7678
Dated: August 13, 2014
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