Ruben ex rel. Ruben v. Secretary of the Department of Health & Human Services

22 Cl. Ct. 264, 1991 U.S. Claims LEXIS 6, 1991 WL 3610
CourtUnited States Court of Claims
DecidedJanuary 3, 1991
DocketNo. 89-103V
StatusPublished
Cited by21 cases

This text of 22 Cl. Ct. 264 (Ruben ex rel. Ruben v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruben ex rel. Ruben v. Secretary of the Department of Health & Human Services, 22 Cl. Ct. 264, 1991 U.S. Claims LEXIS 6, 1991 WL 3610 (cc 1991).

Opinion

OPINION

ANDEWELT, Judge.

This is a child vaccine action brought pursuant to the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-l et seq. (West Supp.1990) (the Act). The Act establishes a program for payment of compensation for injuries or death caused by the administration of vaccines. Petitioners, Carl and Rachel Ruben, as parents and legal representatives of their 27-year-old son, Max S. Ruben, allege that their son suffered severe injuries from the administration of a DPT (diphtheria, pertussis, and tetanus) vaccine inoculation. In a September 12, 1990, decision, [265]*265Special Master Paul T. Baird found that petitioners had satisfied the statutory requirements and were entitled to a compensation award to cover the costs of Max Ruben’s medical treatment and residential care in a group home for the remainder of his life. The special master set annualized costs for the medical treatment and residential care at $160.00 and $59,356.30, respectively. The special master ordered respondent to purchase an annuity, which, in effect, would provide for payment of these sums each year until Max Ruben’s death.

Pursuant to 42 U.S.C. § 300aa-12(e)(l), petitioners filed a timely notice seeking review in this court of the special master’s decision. The sole issue herein is whether the special master erred in ordering that the compensation award be made in the form of an annuity. Petitioners argue that instead of an annuity, they should have received a lump sum payable in four annual installments.

I.

The special master’s authority to grant an award in the form of an annuity is contained in Section 2115(f)(4)(B) of the Act, which states:

In the case of a payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this sub-part the compensation shall be determined on the basis of the net present value of the elements of compensation and paid in 4 equal annual installments of which all or a portion of the proceeds may be used as ordered by the special master to purchase an annuity or otherwise be used, with the consent of the petitioner, in a manner determined by the special master to be in the best interests of the petitioner.

42 U.S.C. §§ 300aa-15(f)(4)(B) (emphasis added).

The initial dispute herein relates to the phrase “with the consent of the petitioner.” Section 2115(f)(4)(B) authorizes the payment of an award in four equal annual installments. In addition, it authorizes two alternative uses of the proceeds— all or a portion of the proceeds “may [ (1) ] be used as ordered by the special master to purchase an annuity or [ (2) ] otherwise be used, with the consent of the petitioner.” Petitioners argue that the prepositional phrase “with the consent of the petitioner” applies to both of these alternative uses, i.e., that the special master must obtain the consent of the petitioner either to order the purchase of an annuity or if the proceeds are “otherwise ... used.” Since petitioners have never consented to use of the proceeds for an annuity, petitioners argue that the special master lacked authority to order the purchase of an annuity.

But the wording of the statute appears intentionally to establish different standards for each of the two separately stated alternative uses of the proceeds. For the first alternative — the purchase of an annuity — the statute refers to an “order[ ] by the special master.” After stating the second alternative — the use of the proceeds in any other way — the statute refers to “the consent of the petitioner.” The verb “order” means “to command.” Webster’s Third New International Dictionary 1588 (3rd ed. 1976). The verb “consent” involves a very different concept. This juxtaposition of “order” and “consent” in the statute indicates that the two listed alternatives should be viewed as distinct and that the imposition of an annuity requires only an order of the special master and not the consent of the petitioner.

Indeed, if Congress intended to create identical requirements for all alternative uses of the proceeds, it reasonably would be expected to have said so in a straightforward manner. For example, in place of the underscored portion of the statute cited above, Congress simply could have stated: “and, with the consent of the petitioner, all or a portion of the proceeds may be used in any manner determined by the special master to be in the best interests of the petitioner.” Instead, Congress chose (1) to employ the verb “used” twice (and thereby specify two distinct uses of the proceeds), (2) to specify the purchase of an annuity as one of those uses, and (3) to establish dis[266]*266tinct standards for the special master’s selection of each alternative use.

There is nothing in the legislative history to suggest a contrary interpretation.1 Nor does this interpretation produce a result that Congress reasonably could not have intended. Section II below describes significant potential benefits that result when an award is made in the form of an annuity. In the context of these benefits, it certainly is plausible that Congress intended to give the special master discretion to order the purchase of an annuity and to require the petitioner’s consent only when the special master resorted to “other uses,” the potential benefits of which Congress had not specifically considered.

Additionally, interpreting Section 2115(f)(4)(B) so as not to require the petitioner’s consent to an annuity is supported by the general rules of statutory construction. First, the two alternatives mentioned in the statute are connected by the term “or” — “the proceeds may be used as ordered by the special master to purchase an annuity or otherwise be used, with the consent of the petitioner.” (Emphasis added.) Generally, the term “or” functions grammatically as a coordinating conjunction and joins two separate parts of a sentence. 2 G. Curme, A Grammar of the English Language, Syntax, 161 (1986). The ordinary rule is that unless a strict grammatical construction frustrates legislative intent, the term “or” is given a disjunctive interpretation. Florsheim Shoe Co., Div. of Interco, Inc. v. U.S., 744 F.2d 787, 795 (Fed.Cir.1984); United States v. Moore, 613 F.2d 1029, 1040 (D.C.Cir.1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2922, 64 L.Ed.2d 811 (1980); George Hyman Constr. Co. v. Occupational Safety & Health Review Comm’n, 582 F.2d 834, 840 n. 10 (4th Cir.1978). A disjunctive interpretation results in the term “or” “connecting two members [of the sentence] but disconnecting their meaning, the meaning in the second member excluding that in the first.” 2 G. Curme, A Grammar of the English Language, Syntax 166 (1986).

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Bluebook (online)
22 Cl. Ct. 264, 1991 U.S. Claims LEXIS 6, 1991 WL 3610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruben-ex-rel-ruben-v-secretary-of-the-department-of-health-human-cc-1991.