Dillenbeck v. Sec'y of Health & Human Servs.
| Decision Date | 06 February 2020 |
| Docket Number | No. 17-428V,17-428V |
| Parties | GAYLE DILLENBECK, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et seq.; Damages for Lost Wages and Pain and Suffering; Loss of Earnings To Be Determined In Accordance With Generally Recognized Actuarial Principles and Projections; 42 U.S.C. § 300aa-15(a)(3)(A); Remand.
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, 1717 K Street NW, Suite 900, Washington, D.C. 20006, for Petitioner.
OPINION AND REMAND ORDER
In the underlying action before the Special Master, Petitioner claimed that she developed Guillain-Barré syndrome ("GBS") as a result of receiving an influenza ("flu") vaccination, and sought compensation under the National Vaccine Injury Compensation Program. Respondent conceded that Petitioner satisfied the Table criteria for a flu/GBS injury, and the Special Master ruled that Petitioner was entitled to compensation. After a hearing, the Special Master issued a damages decision awarding Petitioner $180,857.15 in pain and suffering, $38,824.90 in past lost wages, and $2,314.59 in unreimbursed out-of-pocket expenses. The Special Master did not awardPetitioner future lost wages. Petitioner and Respondent timely filed cross-motions for review of the Special Master's decision.
Petitioner argues that the Special Master should have awarded Petitioner future lost wages as he granted past lost wages, and that he undervalued Petitioner's award for pain and suffering. Respondent argues that the award of past lost wages through the date of the Special Master's July 29, 2019 damages decision was arbitrary, as that date had no legal significance and was unrelated to Petitioner's health or employment. Respondent also argues that the Special Master erred by failing to offset Petitioner's past lost wages award for taxes and state unemployment payments.
The Court finds that the Special Master's pain and suffering award was not an abuse of discretion, and affirms that award. However, in determining lost wages, the Special Master did not articulate a rational basis for his choice of July 29, 2019, as the hypothetical date Petitioner's employment would have ended absent her vaccine injury. As such, the Special Master's lost wages determinations are remanded for reevaluation "in accordance with generally recognized actuarial principles and projections," as required by the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A) and further development of the record.
On October 30, 2015, Petitioner received the flu and pneumococcal conjugate vaccines at her primary care provider's office. ECF No. 51 at 2. At the time of the vaccinations, Petitioner was 61 years old and had a history of rheumatoid arthritis, asthma, bone/joint problems, and anxiety. Id. Petitioner was employed as a receptionist and uncertified veterinary technician ("vet tech") at Bloomingdale Animal Hospital ("Bloomingdale") in Bloomingdale, Illinois, and had held this job for ten years.3 Id. Approximately three weeks after the vaccinations, following a gallbladder surgery, Petitioner reported numbness in her feet and was assessed to have an ataxic gait. Id. Following a worsening of her symptoms, she was diagnosed with GBS in early December 2015. Id. After hospitalization for treatment, Petitioner was released on December 13, 2015, and continued outpatient physical therapy until the end of January 2016. ECF No. 51 at 2; ECF No. 53 at 2.
Petitioner was able to walk independently by January 20, 2016, and had improved significantly as of late February 2016. ECF No. 53 at 2; ECF No. 51 at 2-3. However, Petitioner still reported paresthesia in her hands and feet, reduced grip strength, absent reflexes, and a "wide-based gait." ECF No. 51 at 3. Petitioner was cleared to return to work, subject to a 15-pound lifting restriction, on February 17, 2016, and she returned to work at Bloomingdale on March 1, 2016. ECF 51 at 3; ECF No. 53 at 3.
Altogether, due to her gallbladder surgery and subsequent GBS treatment, Petitioner was out of work from November 15, 2015, through February 29, 2016, and the Special Master foundthat the date of onset of Petitioner's GBS symptoms was November 22, 2015. ECF No. 51 at 2, n.4; ECF No. 51 at 12. On February 16, 2016, while Petitioner was recovering at home, a new Illinois state regulation came into effect which imposed increased restrictions and supervision requirements on uncertified vet techs. ECF No. 51 at 10; ECF No. 53 at 2-3. The Special Master found that the Illinois regulation:
in essence prohibited [Petitioner] from continuing to work as a vet tech without a state license. The regulation does not, however, expressly prohibit a clinic from hiring an uncertified vet tech, although it limits the duties an uncertified technician may perform unsupervised . . . and requires direct supervision by a veterinarian for any other required task (thus limiting the degree to which a veterinary practice might utilize a vet tech for performance of acts it might otherwise rely on her to do independently).
ECF No. 51 at 10. When Petitioner returned to work on March 1, 2016, Bloomingdale assigned her work as a receptionist, not a vet tech, at her pre-vaccination 2015 wage of $14.50/hour. ECF No. 53 at 3. In April 2016, Petitioner visited her neurologist, Dr. Vipan Gupta, and asked him to remove the 15-pound lifting restriction, as she was able to lift her 70-pound dog at home without issue. Id. at 3. On April 29, 2016, Dr. Gupta sent a letter informing Bloomingdale that Petitioner was "cleared to work without restrictions" as of that date. Ex. 16 at 9. A little over two weeks later and six months after her vaccination, Bloomingdale terminated Petitioner's employment on May 16, 2016, citing her "unsatisfactory performance," "slow decline over [the] past year," and a "lack of hours." Ex. 16 at 8.
Petitioner's employment evaluations for the years 2012 and 2013, which pre-date her 2015 vaccination, noted issues with her customer service skills and efficiency. Ex. 16 at 118-21. Petitioner's 2013 evaluation stated that that her supervisor had met with Petitioner "a few times over the past year about customer [service] skills" and while Petitioner was "very receptive, . . . this area still need[s] continued improvement." Id. at 120. These evaluations never threatened any adverse employment consequences.
Three weeks following her termination from Bloomingdale, Petitioner found alternative employment, working as a receptionist at two other veterinary clinics and as a pharmacy technician. ECF No. 51 at 7. Petitioner presently works full-time as a receptionist at Army Trail Animal Hospital in Bartlett, Illinois for $13 per hour. Id. at 5. Though Petitioner's health has improved, it has not returned to baseline, with Petitioner estimating that she has regained 75 to 80 percent of her pre-illness strength. Id. Petitioner continues to experience GBS sequelae, including a lack of sensation in her hands and feet and loss of grip strength. Id.
On March 27, 2017, Petitioner filed a petition seeking compensation under the National Vaccine Injury Compensation Program, ("Vaccine Program") 42 U.S.C. § 300aa-10, et seq., alleging that her GBS was the result of her October 30, 2015 flu vaccine. ECF No. 1. Several months later, Respondent conceded that Petitioner satisfied the criteria in the Vaccine Injury Table and the "Qualifications and Aids to Interpretation for a Flu/GBS Table Injury," and the Special Master ruled that Petitioner was entitled to compensation on October 23, 2017. ECF Nos. 14, 15. The Special Master held a hearing on damages on February 19, 2019. ECF 51 at 2.
On July 29, 2019, the Special Master issued his damages opinion awarding Petitioner a total of $221,996.64, including $180,857.15 in pain and suffering, $38,824.90 in past lost wages and $2,314.59 in unreimbursed out-of-pocket expenses. Id. at 22. The Special Master did not award Petitioner future lost wages based on his finding that, absent her vaccine injury, Bloomingdale would have continued to employ her up until the July 29, 2019 date of his damages decision, but no further. Id. at 16-17. On August 28, 2019, Petitioner and Respondent timely filed cross-motions for review of the Special Master's damages award with this Court. ECF Nos. 53, 55.
Congress created the Vaccine Program as a "Federal 'no-fault' compensation program under which awards can be made to vaccine-injured persons quickly, easily, and with certainty and generosity." H.R.Rep. No. 99-908, at 3 (1986). To that end, "Congress assigned to a group of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting through these painful cases and, based on their accumulated expertise in the field, judging the merits of the individual claims." Hodges v. Sec'y of Dep't of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993).
In Vaccine Act cases, the Court of Federal Claims has jurisdiction to undertake a review of the record of the proceedings and may:
(A) uphold the findings of fact and conclusions of law and sustain the special master's decision, (B) set aside any of the 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.
42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); Doe 93 v. Sec'y of Health & Human Servs., 98 Fed. Cl. 553, 564-65 (2011).
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