Payne v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-0771V Filed: March 30, 2016 UNPUBLISHED **************************** CARRIE PAYNE, * * Petitioner, * Damages Decision Based on Proffer; * Influenza (“Flu”) Vaccine; Left Shoulder * Injury; Shoulder Injury Related to SECRETARY OF HEALTH * Vaccine Administration (“SIRVA”); AND HUMAN SERVICES, * Special Processing Unit (“SPU”) * Respondent. * * **************************** Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 Dorsey, Chief Special Master: On July 23, 2015, Carrie Payne (“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 she suffered a left rotator cuff injury as a result of an influenza (“flu”) vaccine she received on October 14, 2014. Petition at 3. The case was assigned to the Special Processing Unit of the Office of Special Masters. On October 26, 2015, a ruling on entitlement was issued finding petitioner entitled to compensation. On March 30, 2016, respondent filed a proffer on award of compensation (“Proffer”) stating that petitioner should be awarded a lump sum of $100,000.00, for petitioner’s actual and projected pain and suffering, and $3,793.34, to satisfy the State of Pennsylvania Medicaid lien. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the record as a 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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. 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). 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. 2 National 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). whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer (attached as Appendix A). Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner the following: (1) A lump sum payment of $100,000.00, in the form of a check payable to petitioner, Carrie Payne, and (2) A lump sum payment of $3,793.34, representing compensation for satisfaction of the State of Pennsylvania Medicaid lien, payable jointly to petitioner and the Department of Human Services: Karen H. Peterson Claims Investigation Agent Commonwealth of Pennsylvania Bureau of Program Integrity Division of Third Party Liability Recovery Section P.O. Box 8486 Harrisburg, PA 17105-8486 Petitioner agrees to endorse this payment to Pennsylvania Medicaid. These amounts represent 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. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) CARRIE PAYNE, ) ) Petitioner, ) ) No. 15-771V v. ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION Respondent hereby submits the following proffer for the award on compensation. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded a lump sum of $100,000.00 for petitioner’s actual and projected pain and suffering as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(4). 1 Petitioner agrees. B. Medicaid Lien Respondent proffers that petitioner should be awarded funds to satisfy the State of Pennsylvania Medicaid lien in the amount of $3,793.34, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Pennsylvania may have against any individual as a result of any Medicaid payments the State of Pennsylvania has made to or on behalf of petitioner from the date of her eligibility for benefits through the date of 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, future lost earnings, and future pain and suffering. judgment in this case as a result of her vaccine-related injury suffered on or about October 14, 2014, under Title XIX of the Social Security Act. II. Form of the Award The parties recommend that the compensation provided to petitioner should be made through a lump sum payment of $100,000.00 in the form of a check payable to petitioner. In addition, a lump sum payment should be made of $3,793.34, representing compensation for satisfaction of the State of Pennsylvania Medicaid lien, payable jointly to petitioner and Department of Human Services: Karen H. Peterson Claims Investigation Agent Commonwealth of Pennsylvania Bureau of Program Integrity Division of Third Party Liability Recovery Section P.O. Box 8486 Harrisburg, PA 17105-8486 Petitioner agrees to endorse this payment to Pennsylvania Medicaid. 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 HEATHER L. PEARLMAN Senior Trial Attorney Torts Branch, Civil Division 2 s/Christine Mary Becer CHRISTINE MARY BECER Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Date: March 30, 2016 3