In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0697V Filed: January 31, 2019 UNPUBLISHED
JOSEPH L. WHEATLEY,
Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Tetanus Diphtheria acellular SECRETARY OF HEALTH AND Pertussis (Tdap) Vaccine; Shoulder HUMAN SERVICES, Injury Related to Vaccine Administration (SIRVA) Respondent.
Anthony P. Ellis, Ellis Law Group, PLLC, Louisville, KY, for petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On May 25, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) caused in fact by the tetanus, diphtheria, pertussis (“Tdap”) vaccine he received on August 15, 2016. Petition at 1, ¶¶ 2, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters.
On April 13, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for his SIRVA. On January 31, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $117,924.67,
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). representing $424.00 in first year life care expenses, $2,575.80 in lost wages, $110,000.00 in pain and suffering, and $4,924.87 in past unreimbursable expenses, and an amount sufficient to purchase an annuity contract as described in Section II.B. of the Proffer. Proffer at 1-4. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. at 1-3. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards the following:
A. A lump sum in the amount of $117,924.67, representing compensation in the amount of $424.00 for life care expenses in the first year after judgment, compensation in the amount of $2,575.80 for lost wages, compensation in the amount of $110,000.00 for pain and suffering, and compensation in the amount of $4,924.87 for actual unreimbursable expenses, in the form of a check payable to petitioner, Joseph L. Wheatley;
B. An amount sufficient to purchase the annuity contract described in Proffer Section II.B.
These amounts represent compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
Petitioner,
v. No. 17-697V Chief Special Master Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura Fox, MSN, BSN, RN, CDDN, CLCP, to
provide an estimation of Joseph L. Wheatley’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 April 12, 2018. 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 Joseph L. Wheatley, attached hereto as Tab A. 1 Respondent proffers that
Joseph L. Wheatley 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, Joseph L. Wheatley has
suffered past loss of earnings. Therefore, respondent proffers that Joseph L. Wheatley should be
1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment. -1- 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 Joseph L. Wheatley’s lost earnings is
$2,575.80. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Joseph L. Wheatley should be awarded $110,000.00 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 Joseph L. Wheatley’s expenditure of past
unreimbursable expenses related to his vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $4,924.87.
II. Form of the Award
The parties recommend that the compensation provided to Joseph L. Wheatley should be
made through a combination of lump sum payments and future annuity payments as described
below, and request that the Chief Special Master’s decision and the Court’s judgment award the
following:2
A. A lump sum payment of $117,924.67, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($424.00), lost earnings
($2,575.80), pain and suffering ($110,000.00), and past unreimbursable expenses ($4,924.87), in
the form of a check payable to petitioner, Joseph L. Wheatley.
2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief.
Free access — add to your briefcase to read the full text and ask questions with AI
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0697V Filed: January 31, 2019 UNPUBLISHED
JOSEPH L. WHEATLEY,
Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Tetanus Diphtheria acellular SECRETARY OF HEALTH AND Pertussis (Tdap) Vaccine; Shoulder HUMAN SERVICES, Injury Related to Vaccine Administration (SIRVA) Respondent.
Anthony P. Ellis, Ellis Law Group, PLLC, Louisville, KY, for petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On May 25, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) caused in fact by the tetanus, diphtheria, pertussis (“Tdap”) vaccine he received on August 15, 2016. Petition at 1, ¶¶ 2, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters.
On April 13, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for his SIRVA. On January 31, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $117,924.67,
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). representing $424.00 in first year life care expenses, $2,575.80 in lost wages, $110,000.00 in pain and suffering, and $4,924.87 in past unreimbursable expenses, and an amount sufficient to purchase an annuity contract as described in Section II.B. of the Proffer. Proffer at 1-4. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. at 1-3. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards the following:
A. A lump sum in the amount of $117,924.67, representing compensation in the amount of $424.00 for life care expenses in the first year after judgment, compensation in the amount of $2,575.80 for lost wages, compensation in the amount of $110,000.00 for pain and suffering, and compensation in the amount of $4,924.87 for actual unreimbursable expenses, in the form of a check payable to petitioner, Joseph L. Wheatley;
B. An amount sufficient to purchase the annuity contract described in Proffer Section II.B.
These amounts represent compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
Petitioner,
v. No. 17-697V Chief Special Master Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura Fox, MSN, BSN, RN, CDDN, CLCP, to
provide an estimation of Joseph L. Wheatley’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 April 12, 2018. 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 Joseph L. Wheatley, attached hereto as Tab A. 1 Respondent proffers that
Joseph L. Wheatley 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, Joseph L. Wheatley has
suffered past loss of earnings. Therefore, respondent proffers that Joseph L. Wheatley should be
1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment. -1- 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 Joseph L. Wheatley’s lost earnings is
$2,575.80. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Joseph L. Wheatley should be awarded $110,000.00 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 Joseph L. Wheatley’s expenditure of past
unreimbursable expenses related to his vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $4,924.87.
II. Form of the Award
The parties recommend that the compensation provided to Joseph L. Wheatley should be
made through a combination of lump sum payments and future annuity payments as described
below, and request that the Chief Special Master’s decision and the Court’s judgment award the
following:2
A. A lump sum payment of $117,924.67, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($424.00), lost earnings
($2,575.80), pain and suffering ($110,000.00), and past unreimbursable expenses ($4,924.87), in
the form of a check payable to petitioner, Joseph L. Wheatley.
2 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 medical expenses, future lost earnings, and future pain and suffering.
-2- 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 company4 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,
Joseph L. Wheatley, only so long as Joseph L. Wheatley 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 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: five percent (5%) compounded annually from the date
of judgment for medical items. Petitioner agrees.
3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. 4 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.
-3- 2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as he, Joseph L. Wheatley, 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 Joseph L. Wheatley’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, Joseph L. Wheatley: $117,924.67
B. An amount sufficient to purchase the annuity contract described above in section II.B.
5 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056. -4- Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division
CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division
HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division
/s/Colleen C. Hartley COLLEEN C. HARTLEY 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) 616-3644
Dated: January 31, 2019
-5- Appendix A: Items of Compensation for Joseph L. Wheatley Page 1 of 1
Lump Sum Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-7 Years 8-Life 2019 2020-2025 2026-Life Medicare Part B Deductible 5% 183.00 Medigap 5% M 1,245.96 Orthopedist 5% * 250.00 Diagnostic Tests 5% * 174.00 Shoulder Surgery 5% * Lost Future Earnings 2,575.80 Pain and Suffering 110,000.00 Past Unreimbursable Expenses 4,924.87 Medicaid Lien Annual Totals 117,924.67 - 1,428.96 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 ($424.00), lost earnings ($2,575.80), pain and suffering ($110,000.00), and past unreimbursable expenses ($4,924.87): $117,924.67. 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.