In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-295V
Filed: December 3, 2015
Unpublished
****************************
ANN WYBORSKI, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza (“flu”) vaccine; Shoulder Injury;
* Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
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Renee J. Gentry, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioner.
Lisa A. Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On March 23, 2015, Ann Wyborski filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the
“Vaccine Act” or “Program”]. The petition alleges that as a result of an Influenza (“flu”)
vaccination on September 13, 2013, petitioner suffered a shoulder injury related to
vaccine administration (“SIRVA”). Petition at 2. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On June 4, 2015, a ruling on entitlement was issued, finding petitioner entitled to
compensation for her SIRVA. On December 3, 2015, respondent filed a proffer on
award of compensation [“Proffer”] indicating petitioner should be awarded $236,492.00.
Proffer at 2. In the Proffer, respondent represented that petitioner agrees with the
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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 (2006).
proffered award. 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
petitioner a lump sum payment of $236,492.00, representing the discounted
present value of petitioner’s projected vaccine-related injury expenses
($2,217.48), past lost earnings ($63,642.75), pain and suffering ($150,000.00), and
past un-reimbursable expenses ($20,631.77) in the form of a check payable to
petitioner, Ann Wyborski. This amount represents compensation for all damages that
would be available under § 300aa-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.
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Case 1:15-vv-00295-UNJ Document 24 Filed 12/03/15 Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
________________________________________
ANN WYBORSKI, )
) ECF
Petitioner, )
)
v. ) No. 15-295V
) Chief Special Master
SECRETARY OF HEALTH AND HUMAN ) Nora Beth Dorsey
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent proffers that, based on the evidence of record, petitioner should be awarded
$2,217.48 for projected unreimbursable medical expenses. This amount reflects that the award
for projected unreimbursable expenses has been reduced to net present value. See 42 U.S.C.
§ 300aa-15(a)(1), (f)(4)(A). Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, it is unlikely that petitioner’s
vaccine-related injury will impact her future employment. Thus, future lost earnings under 42
U.S.C. § 300aa-15(a)(3)(A) are not appropriate in this case. However, petitioner did experience
a total past loss of earnings in the amount of $63,642.75, and respondent proffers that amount be
awarded to her. Petitioner agrees.
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Case 1:15-vv-00295-UNJ Document 24 Filed 12/03/15 Page 2 of 3
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $150,000.00 in 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 42 U.S.C. § 300aa-15(a)(4), (f)(4)(A).
Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $20,631.77. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no Medicaid liens outstanding against her.
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 Chief Special Master’s
decision and the Court’s judgment award the following: 1
A. A lump sum payment of $236,492.00, representing the discounted present value
of petitioner’s projected vaccine-related injury expenses ($2,217.48), past lost
earnings ($63,642.75), pain and suffering ($150,000.00), and past un-reimbursable
expenses ($20,631.77) in the form of a check payable to petitioner.
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
medical expenses and future pain and suffering.
2
Case 1:15-vv-00295-UNJ Document 24 Filed 12/03/15 Page 3 of 3
1. 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 for future vaccine-related expenses,
past unreimbursable expenses, past lost earnings, and
pain and suffering: $236,492.00
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
s/Lisa A. Watts
LISA A. WATTS
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 616-4099
Dated: December 3, 2015.
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