Schwenk v. Secretary of the Department of Health & Human Services

23 Cl. Ct. 287, 1991 U.S. Claims LEXIS 235, 1991 WL 107393
CourtUnited States Court of Claims
DecidedJune 4, 1991
DocketNo. 90-44V
StatusPublished
Cited by5 cases

This text of 23 Cl. Ct. 287 (Schwenk 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.

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Schwenk v. Secretary of the Department of Health & Human Services, 23 Cl. Ct. 287, 1991 U.S. Claims LEXIS 235, 1991 WL 107393 (cc 1991).

Opinion

ORDER

HARKINS, Senior Judge:

Petitioner, Jane Marie Schwenk, and respondent, the Secretary of the Department of Health and Human Services, each seek review in the United States Claims Court under the National Vaccine Injury Compensation Program (the Program) of a decision dated March 12, 1991, by Special Master Elizabeth E. Wright. 42 U.S.C.A. § 300aa-12(e) (West Supp. 1991). The Program was established in 1986 as part of the [289]*289National Childhood Vaccine Injury Act, Pub.L.No. 99-660, Title III, § 311(a), 100 Stat. 3758. In a series of amendments, procedures applicable to the functions of special masters, and review of decisions of special masters, have been changed substantially. Amendments to the Program were made in the Omnibus Budget Reconciliation Act of 1987 (1987 Amendments), Pub.L.No. 100-203, Title IV, 101 Stat. 1330-222 (Dec. 22,1987); the Medicare Catastrophic Coverage Act of 1988, Pub.L.No. 100- 360, Title IV, 102 Stat. 808 (July 1, 1988); the Omnibus Budget Reconciliation Act of 1989 (1989 Amendments), Pub.L.No. 101- 239, Title VI, § 6601,103 Stat. 2285-94 (Dec. 19, 1989) and the Vaccine and Immunization Amendments of 1990 (1990 Amendments), Pub.L.No. 101-502, § 5, 104 Stat. 1286 (Nov. 3, 1990). Provisions governing the Program are contained in 42 U.S.C.A. §§ 300aa-10 through 300aa~34 (West Supp. 1991). For convenience, further reference to the Program in this order will be to the relevant subsection of “42 U.S.C.A. § 300aa-__”

Jane Marie Schwenk was a normal and healthy baby when born on July 24, 1968. She received her first DTP (diphtheria-tetanus-pertussis) vaccination on September 25, 1968, a second DTP vaccination on November 2,1968, and a third DTP vaccination on January 7,1969. On January 7,1969, reactions began to be observed, and by January 31, 1969, her condition was diagnosed as “convulsive disorder cause undetermined.” The special master in this proceeding determined she has a vaccine-related partial complex seizure disorder that is entitled to compensation under the Program.

Petitioner’s seizures typically occur during the day, and are most notably associated with ovulation, menstruation and stress. She currently experiences complex partial seizures on the average of one to three times per month. The seizures last approximately one half hour, and she must lie down and rest for a period of up to 2 hours following a seizure. For about 5 minutes prior to most seizures, she is aware that one is coming on. For the seizure disorder, she takes 9 pills (1800 mg. total) of Tegre-tol per day. This need will continue for her lifetime.

At the time of the special master’s decision, the petitioner was 22 years old. Petitioner was a senior at the University of Evansville, in Evansville, Indiana, scheduled to graduate in May 1991. Her major was in business administration, with a concentration in finance, and her vocational goal was to work in bank management or to become a financial analyst.

Petitioner lives in an apartment with three roommates. She is able to grocery shop, cook, clean and organize and perform all the required activities of daily living. She also has a healthy social life, and goes out with friends or with her boyfriend. She does not have a driver’s license because of her seizure disorder. She currently works 10 hours a week at minimum wage as a secretary in the graduate studies office. She has held part time jobs throughout her college career and full time summer jobs.

In the March 12, 1991, decision, the special master concluded that petitioner satisfied the requirements for entitlement to compensation under the Program. The decision provides for an award of compensation, in the form of an annuity, to cover designated expenses for the remainder of her life.

In their objections to the special master’s decision, neither the petitioner nor the respondent requested review of the basic entitlement decision. Petitioner challenges the denial of an award for health care insurance, and contends the special master abused her discretion by assuming, in the absence of substantive proof, that petitioner in fact will obtain and maintain a position in a company with a group health policy which would cover vaccine-related future medical costs. Petitioner also contends that the decision was an abuse of discretion in that it forces petitioner to obtain employment in Indiana, with a company that offers group medical coverage, thereby restricting her freedom to select a job of her choice.

Respondent does not seek review of that portion of the special master’s decision con[290]*290cerning the types and amounts of compensation to be awarded in the form of an annuity. Respondent, challenges, as an error of fact and in law, an award of $10,000 to be provided through the annuity in the first year. Respondent argues that this award is a prohibited “contingency fund.”

The responsibilities and functions of special masters in the Program’s amended procedures are unique. The 1989 Amendments established a separate office of special masters within the Claims Court, administered by a chief special master, and gave that office special authority and considerable administrative independence in decisions on claims for compensation under the Program. Section 12(c). The 1989 Amendments directed promulgation of separate rules for special masters, and established specific criteria the rules were to contain (Section 12(d)(2)). Standards were established for conduct of proceedings on a petition (Section 12(d)(3)(B)). Review of a special master’s decision by the Claims Court is expected to be an exceptional occurrence rather than a routine procedure.

A special master’s decision may not be disturbed by the Claims Court unless the court finds it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. The 1989 Amendments defined the Claims Court function in a review of a special master’s decision in Section 12(e)(2), as follows:

(2) Upon the filing of a motion under paragraph (1) with.respect to a petition, the United States Claims Court shall have jurisdiction to undertake a review of the record of the proceedings and may thereafter—
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any 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.

The report of the Conference Committee on the 1989 Amendments emphasized that an appeal to the Claims Court was to be “under very limited circumstances.” The report states:

The Conferees have provided for a limited standard for appeal from the master’s decision and do not intend that this procedure be used frequently but rather in those cases in which a truly arbitrary decision has been made.

H.R.Conf.Rep.No. 386, 101st Cong., 1st Sess., at 517, reprinted in 1989 U.S. Code Cong. & Admin. News 1906, 3112, 3120.

This limited scope of review is tailored to the concepts and objectives of the Program.

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23 Cl. Ct. 287, 1991 U.S. Claims LEXIS 235, 1991 WL 107393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwenk-v-secretary-of-the-department-of-health-human-services-cc-1991.