VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_06-vv-00847
Package ID: USCOURTS-cofc-1_06-vv-00847
Petitioner: B.L.
Filed: 2006-12-12
Decided: 2014-08-15
Vaccine: DTaP
Vaccination date: 2004-08-03
Condition: acute disseminated encephalomyelitis (ADEM)
Outcome: compensated
Award amount USD: 1060424

AI-assisted case summary:
On December 12, 2006, Sherry Lerwick, as legal representative for her minor son B.L., filed a petition alleging that the DTaP vaccine administered on August 3, 2004, caused B.L. to develop acute disseminated encephalomyelitis (ADEM). B.L., born in April 2004, was a healthy infant until receiving vaccinations, after which he developed seizures and was diagnosed with ADEM, resulting in catastrophic and permanent neurological damage. By the time of the damages hearing in September 2013, B.L., then nine years old, suffered from severe cerebral palsy and treatment-resistant epilepsy, requiring assistance with all daily activities and communicating at a pre-toddler level. His mother, Ms. Lerwick, organized her life around his care, with support from California's Medi-Cal and regional center programs providing approximately 40 hours per week of licensed vocational nurse (LVN) care and 36 hours per week of unlicensed aide care, supplemented by school district services.

The government did not contest causation, and Special Master Christian J. Moran found B.L. entitled to compensation on September 8, 2011. The case proceeded to a damages hearing, focusing on two disputed issues: attendant care and long-term residential placement. Regarding attendant care, Ms. Lerwick's life care planner recommended 24-hour LVN care, while the government's planner proposed 8 hours of LVN care daily, supplemented by aide care. On the issue of residential placement, Ms. Lerwick advocated for B.L. to remain in her home, while the government proposed a transition to a residential care facility at age 25.

In rulings issued in 2014, Special Master Moran addressed these disputes. He denied the request for 24-hour LVN care, finding that B.L.'s seizure activity, aspiration risk, and skin infection risk did not necessitate continuous nursing supervision. He accepted the government's plan for 8 hours of LVN care per day at $37 per hour, plus aide-level care for the remaining hours, with aide time increasing as B.L. aged and live-in aide care beginning at age 23. On the residential placement issue, Special Master Moran ruled in favor of Ms. Lerwick, interpreting Section 15(c) of the Vaccine Act to mandate compensation sufficient for B.L. to remain living at home for life, without an age cutoff or parental capacity qualification. The government's proposed transition plan was deemed insufficient to meet this statutory requirement.

An interim compensation award of $325,000 was issued on April 16, 2014, comprising $75,000 for past unreimbursed medical expenses and $250,000 for pain and suffering. The final damages award, adopted by the Special Master on August 15, 2014, totaled $1,060,424. Petitioner subsequently filed a motion for review, challenging the compensation rate for aide hours, arguing they should be compensated at the LVN rate. Judge Margaret Sweeney of the Court of Federal Claims denied this motion on January 30, 2015, finding the Special Master's acceptance of the government's life care planner's assessment over petitioner's characterization of agency practice was not arbitrary or capricious.

Attorneys' fees and costs totaled $394,000, including $300,000 in interim fees and a final award of $94,000 ($69,406 for fees and costs, and $24,594 for a probate court bond).

Theory of causation field:
Petitioner Sherry Lerwick alleged that the DTaP vaccine administered on August 3, 2004, to her son B.L. (then approximately 4 months old) caused acute disseminated encephalomyelitis (ADEM). The government did not contest entitlement, and Special Master Christian J. Moran found causation warranted on September 8, 2011. The case proceeded to a damages hearing. The primary disputes involved the level of attendant care and long-term residential placement. The Special Master awarded compensation for 8 hours of LVN care per day and additional hours of aide care, rejecting the petitioner's request for 24-hour LVN care. He also ruled that compensation must be sufficient for B.L. to remain living at home for life, as mandated by 42 U.S.C. § 300aa-15(c). The final award was $1,060,424. Petitioner's motion for review challenging the aide care compensation rate was denied by Judge Margaret Sweeney on January 30, 2015 (published February 18, 2015), who found the Special Master's decision regarding the necessity of LVN versus aide care was not arbitrary or capricious. Attorneys' fees and costs totaled $394,000.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_06-vv-00847-1
Date issued/filed: 2014-05-13
Pages: 21
Docket text: PUBLIC DECISION (Originally filed: 04/16/2014) regarding 229 DECISION of Special Master. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:06-vv-00847-MMS Document 241 Filed 05/13/14 Page 1 of 21
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
SHERRY LERWICK, legal *
representative of a minor child, *
B.L., * No. 06-847V
* Special Master Christian J. Moran
Petitioner, *
*
v. * Filed: April 16, 2014
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * damages, award of compensation
* on interim basis, reconsideration
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Curtis Webb, Twin Falls, ID, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION, AFTER RECONSIDERATION,
AWARDING COMPENSATION ON AN INTERIM BASIS1
Sherry Lerwick established that a dose of the diphtheria-tetanus-acellular
pertussis (DTaP) vaccine harmed her son, B.L. As such, she is entitled to
compensation through the National Childhood Vaccine Injury Compensation
Program (42 U.S.C. § 300aa-10 through 34 (2006)). Lerwick v. Sec’y of Health &
Human Servs., No. 06-847V, 2011 WL 4537874 (Fed. Cl. Spec. Mstr. Sept. 8,
2011) (Ruling on Entitlement).
1 Pursuant to a February 24, 2014 order, the child’s name has been redacted. The parties
may request additional redactions pursuant to 42 U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule
18(b). In the absence of an additional request for redaction, the decision will be posted in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002).

Case 1:06-vv-00847-MMS Document 241 Filed 05/13/14 Page 2 of 21
Although the parties have agreed upon the amount of compensation for some
items, the parties have not reached an agreement on everything. Ms. Lerwick,
preferring not to wait until all issues are resolved, has requested an award of
compensation on an interim basis. See Pet’r’s Mot. for Decision Awarding Interim
Compensation (Pet’r’s Mot.), filed Oct. 24, 2013. The Secretary opposed this
motion.
A decision, originally issued on February 7, 2014, and re-issued in redacted
form on February 24, 2014 (“original decision”), granted Ms. Lerwick’s motion.
She was awarded $325,000.00 as compensation on an interim basis.
The Secretary filed a motion for reconsideration of the original decision.
This motion was granted to the extent that the motion requested that the original
decision be vacated. Whether the Secretary was entitled to any additional relief (a
substantive change in outcome) was deferred until Ms. Lerwick responded to the
motion for reconsideration. Order, filed Mar. 4, 2014.
Ms. Lerwick submitted her response. The parties’ additional arguments
have been considered. For reasons explained below, the original decision is re-
instated and Ms. Lerwick is awarded $325,000.00 in compensation on an interim
basis.2 This award is intended to deliver some compensation to Ms. Lerwick as
quickly as possible in accord with one purpose of the Vaccine Act: “quickly,
easily, and with certainty and generosity.” H.R Rep’t 99-908 at 3, quoted in Cloer
v. Sec'y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en
banc), aff’d sub nom., Sebelius v. Cloer, 133 S.Ct. 1886 (2013).
Background3
B.L. was born in April 2004. In August 2004, he received a set of
vaccinations including the DTaP vaccine. Within a few days, B.L. started having
seizures. He was diagnosed as suffering from acute disseminated
encephalomyelitis (ADEM). The ADEM has caused B.L. to be “profoundly
2 The March 4, 2014 order made the original decision “void for all purposes.” Vaccine
Rule 10(e)(3)(A). Thus, this decision addresses all the Secretary’s arguments, regardless of
whether she made them in her response to Ms. Lerwick’s motion or in the Secretary’s motion for
reconsideration.
3 The Secretary’s motion for reconsideration did not challenge the material set forth in the
“Background” section. Thus, it is repeated, with minor changes, from the original decision.
2

Case 1:06-vv-00847-MMS Document 241 Filed 05/13/14 Page 3 of 21
delayed in all areas. He has problems taking nourishment. He has little ability to
communicate. He cannot sit up or walk. He continues to have seizures.” Ruling on
Entitlement, 2011 WL 4537874, at *10. The limits of B.L.’s abilities are vividly
depicted in a video filed as exhibit 126.
B.L. receives much more assistance than a typical nine-year-old. “He is
dependent on others for all of his daily living needs.” Exhibit 107 at 5. He uses “a
multi-position seating chair, a walker, stroller, crawler, . . . and a bath chair.” Id.
He requires a number a daily medications. See id. at 9. The State of California,
through a program called Medi-Cal Early Periodic Screening, Diagnosis, and
Treatment, provides a licensed vocational nurse for 170 hours per month. A
different program, the Inland Regional Center, provides another 30 hours per
month of care by a licensed vocational nurse. The California Department of Social
Services also funds a person (in this case, Ms. Lerwick, herself) to provide 195
hours of non-licensed care to B.L. Id. at 1. B.L.’s school system also assists in
B.L.’s care when he attends school.
Ms. Lerwick claimed that the DTaP vaccine caused B.L.’s ADEM. See
Petition, filed Dec. 12, 2006. The Secretary disagreed and the case went to a
hearing on entitlement. Ms. Lerwick was found to have established causation.
Ruling on Entitlement, 2011 WL 4537874 at *1. The parties began to determine
the amount of compensation to which Ms. Lerwick is entitled. See 42 U.S.C. §
300aa-15(a) (listing five categories of compensation).
The process for quantifying damages is often laborious, especially in cases
with a brain-injured child. A starting step is obtaining updated documents
describing the child’s status. Typical sources include medical records and
individualized education plans. Both parties also retain life care planners, either
jointly or separately. A significant task of life care planners is to obtain
information from the treating doctors about the child’s future abilities and future
needs. Those factors, in turn, influence the amount of compensation awarded for
impaired earning capacity, future pain and suffering, and future unreimbursed
expenses.
Projecting a person’s abilities, their medical needs, and their anticipated
emotional distress decades into the future is not easy. Nevertheless, the parties
routinely overcome the difficulties in making those estimates. In the vast majority
of cases in which special masters find the petitioner is entitled to compensation, the
parties reach an agreement regarding the amount of compensation. The frequency
of settlement is a great accomplishment of the Vaccine Program.
3

Case 1:06-vv-00847-MMS Document 241 Filed 05/13/14 Page 4 of 21
For B.L., the parties followed the same process and nearly reached the same
result, a complete resolution. For medical expenses incurred but not reimbursed
through August 30, 2013, the parties agreed to $75,000.00. For pain and suffering
(both past and future), the parties agreed to $250,000.00. For B.L.’s lost earning
capacity, the parties agreed to $635,424.00. These three agreed-upon items are the
subject of Ms. Lerwick’s pending motion for compensation on an interim basis.
The parties have not agreed to the amount of unreimbursable future medical
expenses. Within this category, two items remain unresolved. Ms. Lerwick claims
B.L. currently needs 24-hour supervision of a licensed nurse. The Secretary argues
that 24-hour care is not necessary. Additionally, the Secretary proposes that
funding for future expenses should assume that when B.L. is 25 years old and his
mother is 65, he will live in a residential facility. Ms. Lerwick prefers that he live
at home. See Pet’r’s Mot. for Partial Summary Judgment, filed July 12, 2013;
Resp’t’s Opp’n to Pet’r’s Mot. for Partial Summary Judgment, filed July 29, 2013.
Because of the dispute over future medical expenses, a hearing in damages
was held across three days in September 2013. The witnesses included Dr. Ramon
Sankar, B.L.’s treating neurologist, and Dr. Perry Lubens, a neurologist whom the
Secretary retained to examine B.L.
After the hearing, Ms. Lerwick filed the pending motion. She requests a
decision awarding compensation for the three undisputed items. A reason for Ms.
Lerwick’s request is that she expects to lose funding from California. She testified
that after her divorce from B.L.’s father becomes final and he pays child support,
the child support will limit (or disqualify) her receiving funds from California.4
Pet’r’s Mot. at 5. The Secretary opposes her request. Resp’t’s Resp. to Pet’r’s
Mot. for Decision Awarding Interim Compensation (Resp’t’s Opp’n), filed Dec. 9,
2013; Resp’t’s Mot. for Reconsideration, filed Feb. 24, 2014.
Analysis
Although not framed precisely in these terms, the parties’ submissions raise
two issues. First, whether special masters possess the authority to award
compensation on an interim basis. Second, assuming that special masters have this
authority, whether exercising this authority for Ms. Lerwick is appropriate. The
4 The Secretary has not challenged the accuracy of this testimony.
4

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Secretary’s motion for reconsideration has focused on the former question, an issue
about legal authority.
I. Authority
In advancing her argument that special masters have the authority to award
compensation on an interim basis, Ms. Lerwick draws on two sets of cases from
the Federal Circuit. In the first set of cases, the Federal Circuit stated that the
Vaccine Act authorizes special masters to issue decisions awarding attorneys’ fees
and costs on an interim basis. Shaw v. Sec’y of Health & Human Servs., 609 F.3d
1372 (Fed. Cir. 2010); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343
(Fed. Cir. 2008). Ms. Lerwick maintains that since special masters may issue more
than one decision awarding attorneys’ fees and costs, special masters may issue
more than one decision awarding compensation.
The other set of cases from the Federal Circuit presents examples in which
the Federal Circuit instructed the Court of Federal Claims to issue judgments
awarding compensation on an interim basis. In both cases, the Federal Circuit
issued its ruling in a non-precedential order. Order, filed May 16, 2013, at 7,
Tembenis v. Sec’y of Health & Human Servs., No. 2013-5029 (Fed. Cir.), ECF #
28; Order, filed June 13, 2012, at 2, Heinzelman v. Sec'y of Health & Human
Servs., No. 2011-5127 (Fed. Cir.), ECF # 28.
In her original response to Ms. Lerwick’s motion, the Secretary contended
special masters lack this authority. “The Vaccine Act does not contemplate
multiple decisions and multiple judgments. Legal authority for interim awards of
any kind does not exist in the statute.” Resp’t’s Opp’n at 2. The problem, as the
Secretary recognized, is “these arguments have largely been rejected in the two
non-precedential Federal Circuit orders that petitioner cites.” Id.
The Secretary’s motion for reconsideration takes a different tact. The
Secretary argues that the decision should identify a statutory basis for awarding
compensation on an interim basis. Resp’t’s Mot. for Recons. at 2-3 (citing, among
other cases, Patton v. Sec'y of Health & Human Servs., 25 F.3d 1021, 1027 (Fed.
Cir. 1994)).
The relevant portion of the Vaccine Act provides that a special master shall
issue “a decision on such petition with respect to whether compensation is to be
provided under the Program and the amount of such compensation.” Section
12(d)(3). The Secretary emphasizes that the use of the indefinite article “a” in the
5

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phrase “a decision” means that Congress intended that special masters issue only a
single decision. Resp’t’s Mot. for Recons. at 3.
This argument misses its mark. In a statute, the use of an indefinite article
(“a” or “an”) can mean “one or more.” In contrast, the use of the definite article
(“the”) usually suggests a single item. See Colorado v. Sunoco, Inc., 337 F.3d
1233, 1241 (10th Cir. 2003) (interpreting the Comprehensive Environmental
Response, Compensation and Liability Act). The Federal Circuit has used the
same guideline in construing patents. See Sandisc Corp. v. Kingston Technology
Co., Inc., 695 F.3d 1348, 1360 (Fed. Cir. 2012). The Court of Federal Claims has
also distinguished indefinite articles from the definite article when interpreting a
contract provision. See Boeing Co. v. United States, 75 Fed. Cl. 34, 43 (2007) (“If
more than one such official were contemplated, the indefinite articles ‘an’ or ‘a’
should have been used.”). While neither Colorado, Sandisc, nor Boeing considered
the specific language found in section 12(d)(3) of the Vaccine Act, these cases are
persuasive precedents for rejecting the Secretary’s argument that a special master
may issue one, and only one, decision awarding compensation on an interim basis.
Since section 12(d)(3) does not resolve the question of whether special
masters are authorized to issue two or more decisions awarding compensation,
guidance can be sought from the four Federal Circuit decisions mentioned above.
Figueroa v. Sec'y of Health & Human Servs., 101 Fed. Cl. 696, 697 (2011) (“this
court must refrain from a de novo interpretation of the statutory text if binding
precedent has already provided an interpretation of this section of the Vaccine
Act”), rev’d on other grounds, 715 F.3d 1314 (2013). In two precedential cases,
Avera and Shaw, the Federal Circuit has stated that special masters have the
authority to award attorneys’ fees and costs on an interim basis. In two other
cases, Heinzelman and Tembenis, the Federal Circuit endorsed multiple decisions
awarding compensation, albeit in non-precedential orders.
To start with the precedential decisions, the genesis of interim decisions was
the Federal Circuit’s ruling in Avera. The Federal Circuit stated “[t]he statute
permits . . . awards” of attorneys’ fees and costs on an interim basis. 515 F.3d at
1352.
After Avera opened the door to awards of attorneys’ fees and costs on an
interim basis, the next issue was the appealability of those decisions. The Court of
Federal Claims held that decisions awarding only part of the requested fees were
not final decisions that could be subject to a motion for review. Shaw v. Sec'y of
Health & Human Servs., 88 Fed. Cl. 463 (2009). Mr. Shaw appealed the Court’s
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holding that it lacked jurisdiction to entertain his motion for review to the Federal
Circuit.
The Secretary’s position was that the Court correctly held that the Vaccine
Act authorized a motion for review only after the special master issued a “final”
decision and a decision awarding attorneys’ fees and costs on an interim basis was
not a final decision. In support of this position, the Secretary raised the possibility
of multiple decisions and multiple appeals: “Vaccine Act cases already have two
potentially appealable decisions – one on the issue of entitlement to compensation,
if any, and another on final fees and costs. Shaw’s position here, if adopted, would
result in at least three – if not more – potentially appealable decisions in every
Vaccine Act case.” Brief for Respondent-Appellee at 15 n.9, Shaw v. Sec'y of
Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (No. 2009-5117), 2010
WL 341595. The Secretary also presented arguments that allowing appeals of
decisions awarding attorneys’ fees and costs on an interim basis would interfere
with the quick and efficient processing of cases within the Vaccine Program. Id. at
17-20, 2010 WL 341595; see also Shaw, 609 F.3d at 1374 (summarizing the
government’s arguments).
The Federal Circuit rejected the Secretary’s arguments. It held a “Special
Master’s grant or denial of interim attorneys’ fees is a decision on compensation
and as such it is reviewable by the Court of Federal Claims.” Shaw, 609 F.3d at
1376. The Federal Circuit also disagreed with the Secretary’s contention regarding
delaying the processing of cases, stating this assertion “seems to be more of an
attack on the availability of interim fees than their reviewability.” Id. at 1377.
Thus, special masters have consistently interpreted Avera and Shaw to
authorize them to issue decisions awarding attorneys’ fees and costs on an interim
basis. See Crutchfield v. Sec'y of Health & Human Servs., No. 09-39V, 2011 WL
3806351, at *5 (Fed. Cl. Spec. Mstr. Aug. 4, 2011) (collecting cases); see also
Decision, issued May 26, 2010, 2010 WL 2594109 (awarding interim attorneys’
fees and cost in amount which respondent did not object). Although the Secretary
acknowledges this binding precedent, the Secretary argues that decisions awarding
attorneys’ fees are different from decisions awarding compensation. The primary
difference is that petitioners must file an election, accepting or rejecting a
judgment awarding compensation for injuries, but they do not need to submit an
election for judgments awarding attorneys’ fees and costs. See Mot. for Recons. at
3-7; Resp’t’s Resp. at 2-3.
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The process for electing to accept or to reject a judgment is an unusual
aspect of Vaccine Program procedure. A special master issues a decision awarding
compensation. 42 U.S.C. § 300aa--12(d)(3). Each party possesses the right to file
a motion for review, which, if filed, is assigned to a judge of the Court of Federal
Claims. 42 U.S.C. § 300aa-12(e)(1). If neither party files a motion for review, the
clerk enters a judgment in accord with the special master’s decision. Id. § 12(e)(3).
Once there is a judgment, there are two options available. If, and only if, a
party has filed a motion for review, a party may appeal to the Federal Circuit. Id.
§ 12(f); Mahaffey v. Sec’y of Health & Human Servs., 368 F.3d 1378 (Fed. Cir.
2004) (denying request for direct appeal to Federal Circuit). An appeal to the
Federal Circuit is unusual.
The second alternative is more common. The petitioner, and only the
petitioner, possesses an option to accept the judgment or to reject the judgment
regarding the petitioner’s compensation.5 The petitioner’s election to accept or to
reject the judgment determines whether the petitioner may pursue a lawsuit against
either the vaccine manufacturer or administrator in civil court. Accepting the
judgment prevents further litigation and rejecting a judgment permits a lawsuit
against the vaccine manufacturer or administrator. 42 U.S.C. § 300aa-21(a).
The process for an award of attorneys’ fees and costs is largely the same.
The special master issues a decision. The decision is subject to a motion for
review. The combined effect of the special master’s decision and the review by a
judge of the Court of Federal Claims, if any, is the basis for a judgment. Provided
there was a motion for review, this judgment may be appealed to the Federal
Circuit. For an example of a case demonstrating this procedural sequence, see
Masias v. Sec'y of Health & Human Servs., 634 F.3d 1283, 1285 (Fed. Cir. 2011).
However, once there is a judgment, the similarities between judgments awarding
compensation and judgments awarding attorneys’ fees and costs end. Petitioners
are not required to file an election to accept or to reject the judgment awarding
them attorneys’ fees and costs. Saunders v. Sec'y of Health & Human Servs., 25
F.3d 1031, 1034-35 (Fed. Cir. 1994).
In arguing that special masters lack the authority to issue decisions awarding
compensation on an interim basis, the Secretary emphasizes the petitioner’s
5 If there were an appeal to the Federal Circuit, the petitioner files the election “after the
appellate court’s mandate is issued.” 42 U.S.C. § 300aa—21(a).
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obligation to elect to accept or to reject judgment, particularly in her motion for
reconsideration. The Secretary suggests that a petitioner may accept a judgment
awarding compensation on an interim basis but may reject a subsequent judgment
awarding compensation on a final basis. Such a divided result, the Secretary seems
to maintain, would permit the petitioner to pursue additional compensation from a
vaccine manufacturer or administrator. Resp’t Mot. for Recons. at 4-6.
Despite additional consideration, the Secretary’s arguments regarding the
need for an election remain unpersuasive. The Secretary has cited no authority that
a petitioner may (a) accept a judgment awarding compensation on an interim basis,
(b) reject a judgment awarding compensation on a final basis, and, then, (c)
proceed to recover additional compensation from a vaccine administrator or
manufacturer in a separate litigation. The lack of authority is understandable
because the situation has never occurred --- a petitioner has never received an
interim award of compensation. Nevertheless, it is easy to imagine a judicial
official holding, as a matter of law, that a petitioner’s acceptance of a judgment
awarding compensation on an interim basis automatically carries with it an implied
acceptance of a judgment awarding compensation on a final basis.6
The Secretary’s arguments about the obligation for an election repeat
arguments that the Secretary unsuccessfully presented to the Federal Circuit in
Heinzelman and Tembenis. In Heinzelman, the special master had found that the
petitioner was entitled to compensation, which includes compensation for her lost
earning capacity. See 42 U.S.C. § 300aa—15(a)(3)(A). The Secretary had
requested an offset of $316,000.00, because Ms. Heinzelman would receive
payments from Social Security Disability Insurance (SSDI). The special master
held that an offset was not required and the Court of Federal Claims agreed.
Heinzelman v. Sec'y of Health & Human Servs., 98 Fed. Cl. 808, 815-17 (2011).
The Secretary appealed the (one) judgment of the Court of Federal Claims to
the Federal Circuit. At the Federal Circuit, the single issue concerned the SSDI
offset. Heinzelman v. Sec'y of Health & Human Servs., 681 F.3d 1374 (Fed. Cir.
2012).
Shortly before oral argument was scheduled, Ms. Heinzelman filed a motion
requesting partial summary affirmance. She wanted to receive a judgment for the
6 As discussed below, Ms. Lerwick has disclaimed any intent to reject the forthcoming
judgments awarding her compensation.
9

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amount of damages that the SSDI offset did not affect. The Secretary opposed this
request, saying “Petitioner identifies no apposite authority for providing relief in
these circumstances, and no such authority exists.” Resp’t-Appellant’s Opp’n to
Pet’r’s Mot. for Partial Summary Affirmance at 2, Heinzelman v. Sec'y of Health
& Human Servs., No. 2011-5127 (Fed. Cir.), ECF # 23. The Secretary referred
specifically to the need for an election:
Petitioner is asking the Court to construe these provisions
to permit multiple judgments, and potentially multiple
elections of remedies --- something the Vaccine Act does
not contemplate. . . . Under petitioner’s approach, an
individual could conceivably elect to accept a partial
compensation award embodied in one judgment but
reject a subsequent judgment and attempt to pursue a
civil action against the vaccine administrator or
manufacturer for damages associated with the rejected
judgment. This fractured and convoluted process is
inconsistent with the Vaccine Act’s scheme for a single
election of remedies after final judgment is entered.
Id. at 3-4.
In regard to the merits of the appeal, the Federal Circuit held that an offset
was not required and affirmed the judgment of the Court of Federal Claims. The
Federal Circuit did not address Ms. Heinzelman’s pending motion for partial
affirmance in its reported opinion. Heinzelman, 681 F.3d 1374.
The Federal Circuit’s ruling on Ms. Heinzelman’s motion occurred in a non-
precedential order issued on the same day as its opinion. The Federal Circuit
granted the motion and ordered that “[t]he Court of Federal Claims shall enter a
final judgment in Heinzelman’s favor consistent with its June 28, 2011 judgment,
but less the $316,000 at issue in this appeal. Given our decision on the merits of
Petitioner’s appeal, . . . judgment with respect to the contested amount will become
final upon issuance of the mandate.” Order, filed June 13, 2012, at 2, Heinzelman
v. Sec'y of Health & Human Servs., No. 2011-5127 (Fed. Cir.), ECF # 28. Later,
the Federal Circuit clarified this order, stating “it is our intention to affirm the
entire monetary award in the Petitioner’s favor, to be finalized in stages.” Order,
filed July 18, 2012, at 2, Heinzelman v. Sec'y of Health & Human Servs., No.
2011-5127 (Fed. Cir.), ECF # 31.
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In accord with these instructions, the Clerk’s Office of the Court of Federal
Claims issued two judgments in her case: one on July 23, 2012, for the undisputed
amounts and the other on August 7, 2012, for $316,000.00. Docket Sheet,
Heinzelman v. Sec'y of Health & Human Servs., No. 07-01V (Fed. Cl.), ECF #
123, 126. Therefore, the outcome of Heinzelman shows that the Court of Federal
Claims may issue two judgments awarding compensation to a petitioner, despite
the petitioner’s need to elect to accept those judgments.
A similar, but not identical, process happened in Tembenis. Once again, the
parties disputed one item of compensation, specifically, whether the estate of a
child who died from a vaccine-related injury was entitled to recover compensation
for the money that the child would have earned if the child had not died. After the
Court of Federal Claims awarded this compensation, the government appealed to
the Federal Circuit. And again, the petitioners-appellees at the Federal Circuit
filed a motion requesting a summary affirmance of the uncontested amounts.
In opposing the Tembenis’ motion, the Secretary again referred to obligation
to make an election pursuant to section 21(a). The Secretary argued the Vaccine
Act “contemplates a single choice of compensation award made by the [Court of
Federal Claims] or a civil action for damages. It does not contemplate some
combination of the two.” Resp. to Pet’rs-Appellees’ Mot. for Partial Summary
Affirmance, filed Feb. 12, 2013, at 2, Tembenis v. Sec'y of Health & Human
Servs., No. 2013-5029 (Fed. Cir.), ECF # 13.
The Federal Circuit granted the motion for partial summary affirmance. The
Federal Circuit did not see the obligation for an election as an impediment. The
order stated:
The language of § 21(a) is consistent with the ability to
make an election accepting the judgment prior to the
completion of the government’s appeal. Section 21(a)’s
only operative limitation is that the election must be
made “after judgment has been entered by the United
States Court of Federal Claims,” but not more than 90
days after the date of the final decision in the case.
Order, filed May 16, 2013, at 5, Tembenis v. Sec'y of Health & Human Servs., No.
2013-5029 (Fed. Cir.), ECF # 28. The Federal Circuit also rejected the possibility
of inconsistent elections, stating “once a petitioner has elected to accept the
judgment, he or she has accepted it for all compensation purposes relating to that
11

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petition.” Id. at 6. Moreover, to advance the payment for the undisputed portions
of compensation, the Federal Circuit shortened the amount of time for any petition
for rehearing “so that the matter may promptly be transmitted back to the Court of
Federal Claims.” Id. at 7. Consequently, the reasoning in Tembenis further
supports a holding that special masters may issue two decisions awarding
compensation to a petitioner.7
The Federal Circuit’s orders in Tembenis and Heinzelman, as non-
precedential rulings, do not bind special masters. See Fed. Cir. Rule 32.1.
However, the orders represent the conclusions of five judges of the appellate
tribunal responsible for establishing the binding interpretation of the Vaccine Act.
See Althen v. Sec’y of Health and Human Servs., 418 F.3d 1274, 1280 (Fed. Cir.
2005). Additionally and importantly, the reasoning in the orders – particularly
Tembenis – retains an ability to persuade. See Griffey’s Landscape Maintenance,
LLC v. United States, 51 Fed. Cl. 667, 673 (2001).
Beyond pointing out that Heinzelman and Tembenis are non-precedential
orders, the Secretary puts forward other reasons for not following them. Many of
these complaints suggest that the Secretary maintains that the Federal Circuit
decided those cases wrongly. For example, the Secretary asserted she “stands by
those arguments” made in opposition to interim awards both previously and in this
case. Resp’t’s Opp’n at 2. As such, many of the Secretary’s arguments in this case
resemble the arguments she made in Shaw that were “more of an attack on the
availability of interim fees.” 609 F.3d at 1376.
As discussed above, the Federal Circuit in Avera and Shaw stated that
special masters possess the authority to issue decisions awarding attorneys’ fees on
an interim basis. While the Secretary may continue to dislike that outcome, a
special master must follow them. Friedman v. Sec'y of Health & Human Servs., 94
Fed. Cl. 323, 332 (2010). A question that ensued from Avera and Shaw is given
7 In Tembenis, a second judgment was not entered because of the Federal Circuit’s
resolution of the appeal. Before the Federal Circuit appeal, the Court of Federal Claims had
issued a judgment for $1,084,955.61 on October 22, 2012, in accord with an order of the
presiding judge. Following the Federal Circuit’s May 16, 2013 order affirming the non-disputed
aspects of the judgment and a series of orders by the judge, the Clerk of the Court of Federal
Claims modified the October 22, 2012 judgment on September 12, 2013. Because the
September 12, 2013 judgment awarded all the compensation to which the petitioners were
entitled after the Federal Circuit held against them, the Court of Federal Claims did not issue a
second judgment regarding compensation.
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that special masters have the authority to issue decisions awarding attorneys’ fees
and costs on an interim basis, do special masters also possess the authority to issue
decisions awarding compensation on an interim basis?
The Secretary has identified one potential basis for distinguishing decisions
on compensation from decisions on attorneys’ fees, the need for an election. The
Secretary has argued this point to the Federal Circuit two times. But, the
Secretary’s arguments have not persuaded the Federal Circuit to limit the
availability of interim decisions. If interim awards for attorneys’ fees and costs are
permitted, then there seems to be no persuasive reason for not allowing interim
awards of compensation. One reason Congress created the Vaccine Program was
to speed awards of compensation to families whose children were injured by a
vaccine. Awarding compensation to those families on an interim basis is in accord
with this Congressional purpose.
Consequently, for all these reasons, special masters possess the legal
authority to award compensation on an interim basis.8
II. Discretion
Assuming special masters have the authority to award compensation on an
interim basis, the next question is whether a special master should make such an
award in a particular case. Here, in her original response, the Secretary raised
several factors arguably weighing against an award. These include: (1) a
8 The original decision stated that if the Secretary wanted to maintain arguments against
awards of compensation on an interim basis,
[I]t is incumbent on the Secretary to file a motion for review and, if
necessary, to file an appeal so that judges can resolve the issue.
Consistently raising an argument before special masters without
taking the steps to obtain a definitive interpretation wastes
resources of litigants and special masters. See Nuttall v. Sec’y of
Health & Human Servs., No. 07-810V, 2011 WL 5926131, at *2
(Fed. Cl. Spec. Mstr. Nov. 4, 2011) (noting the Secretary’s
arguments against the award of attorneys’ fees and costs on an
interim basis).
While the pending motion for reconsideration advances the argument, the present
decision does not bind other special masters. Thus, the need for appellate guidance remains.
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petitioner’s requirement to elect to accept a judgment, (2) a possible change in
B.L.’s condition, (3) potential complications in processing Vaccine Act cases, and
(4) the possibility of an appeal. Resp’t’s Resp. at 3-7.
These issues are discussed below after an examination of Ms. Lerwick’s
right to compensation. It is almost a foregone conclusion that she will receive
some compensation for B.L.’s ADEM.
The basis for an award of compensation is the September 8, 2011 ruling,
which found Ms. Lerwick established that the DTaP vaccination caused B.L.’s
ADEM. The September 8, 2011 ruling, although very important to the outcome of
Ms. Lerwick’s case, is only an interim ruling and one that could be the subject of
appellate review.
Appellate review of special master’s decisions begins after the special
master issues a “decision.” “Decisions,” as the Vaccine Act uses that term, are
actions by judicial officials that either award or deny compensation. 42 U.S.C.
§ 300aa-12(d)(3)(A); Currie v. Sec’y of Health and Human Servs., No. 02-838V,
2003 WL 23218074 (Fed. Cl. Spec. Mstr. Nov. 26, 2003).9 By this definition, the
September 8, 2011 ruling was not a decision.10 Although the outcome favored Ms.
Lerwick, it did not award her compensation. When Ms. Lerwick is actually
awarded some amount of compensation, there will be a “decision.” Once there is a
decision, the Secretary may exercise her right to challenge the September 8, 2011
ruling by filing a motion for review. See 42 U.S.C. § 300a-12(e); Heinzelman, 98
at 812 (denying the Secretary’s motion for review and holding the special master
did not err in allocating the burdens of proof), aff’d in non-relevant part, 681 F.3d
1374 (Fed. Cir. 2012).
Although the Secretary possesses this right, the likelihood of her actually
filing a motion for review of the September 8, 2011 ruling is remote. The
Secretary has filed motions for review of a special master’s decision finding
9 Sometimes Currie is cited as Hamilton v. Sec’y of Health & Human Servs. See, e.g.,
Hippo v. Sec’y of Health & Human Servs., No. 10-642V, 2012 WL 1658252, at *3 n.7 (Fed. Cl.
Spec. Mstr. Apr. 18, 2012).
10 In addressing the motion for reconsideration, Ms. Lerwick describes the September 8,
2011 ruling finding entitlement as a “decision.” Pet’r’s Resp. at 3. This characterization is
erroneous because the September 8, 2011 ruling does not fit the definition of a decision. It
neither awarded nor denied compensation.
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entitlement extremely rarely.11 Apparently, the Secretary’s position is that findings
regarding causation, regardless of outcome, are fact-intensive conclusions that
should not be appealed. If the Secretary follows this principle, she will not
challenge the finding of entitlement. Alternatively, if the Secretary intends to file a
motion for review of the September 8, 2011 entitlement ruling, there may be
advantages to having entitlement issues resolved now before more effort is
invested into resolving the amount of compensation.
As noted above, the Secretary argues the award of compensation should be
later. The Secretary advocates that special masters should issue a single (final)
decision adjudicating all issues regarding entitlement. She has presented four
factors arguing against an interim award.
A. Election about Judgment
An important reason for the Secretary’s argument regarding the special
master’s authority to issue decisions awarding compensation on an interim basis is
the obligation to file an election. This argument is not persuasive for the reasons
explained above.
In addition to arguments that special masters lack authority to issue
decisions awarding compensation on an interim basis generally, the Secretary’s
original response brought out concerns specific to Ms. Lerwick. The Secretary
comments that Ms. Lerwick cannot know her total compensation because the
element for future medical expenses remains disputed. The Secretary postulates
that since Ms. Lerwick will need to accept the judgment following this decision
awarding compensation, she may regret her choice after the next decision awarding
compensation for future unreimbursable medical expenses. Resp’t’s Resp. at 3-4.
Ms. Lerwick appears not to share the Secretary’s concern. Ms. Lerwick is
aware that the amount of compensation for future unreimbursable medical
expenses has not been determined. Ms. Lerwick knows that she does not know
everything. Nevertheless, she stated she intends to accept the judgment(s). She
does not intend to pursue a civil action against the doctor who administered B.L.’s
11 When the court (not special master) has found a petitioner entitled to compensation, the
Secretary has appealed to the Federal Circuit infrequently. See, e.g., Bazan v. Sec’y of Health &
Human Servs., 539 F.3d 1347 (Fed. Cir. 2008); Paterek v. Sec’y of Health & Human Servs., No.
2012-5078, 527 Fed. App’x 875 (Fed. Cir. June 19, 2013).
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vaccine or the company that manufactured it. See Pet’r’s Reply to Resp’t’s Opp’n
(Pet’r’s Reply), filed Dec. 24, 2013, at 2.12
B. Possible Change in B.L.’s Condition
In her original opposition, the Secretary argued an award of compensation
on an interim basis is not appropriate because the amount of the award, despite an
ostensible agreement, is subject to change. Resp’t’s Resp. at 4-5. This argument
rests in understanding how special masters award compensation in the Vaccine
Program.
Until now, special masters have awarded compensation at a single point in
time. The special master’s decision is based upon projections about the injured
person’s future ability and future medical needs. In the damages phase, the injured
person’s health may change, making previous projections less reliable and causing
updated projections. See, e.g., Sarver v. Sec’y of Health & Human Servs., No.
07-307V, 2009 WL 8589740, at *8 (Fed. Cl. Spec. Mstr. Nov. 16, 2009). These
changes, typically, constitute relatively minor alterations in the amount of
compensation for projected unreimbursable medical expenses.
However, the death of the injured person during the damages phase affects
the type of compensation (and, therefore, the amount of compensation) available.
The estate of a person who dies after a vaccine-related injury cannot recover both
the death benefit and an award for diminished earning capacity. Tembenis, 733
F.3d 1190, petition. for cert. filed, 2014 WL 325699 (U.S. Jan. 24, 2014) (No. 13-
902). Citing Tembenis, the Secretary asserted “[i]f an award of future damages is
made as part of an interim damages award, and [B.L.] then dies, respondent would
be placed in the awkward position of seeking the repayment of that portion of the
interim award to the Trust Fund from the petitioner’s estate.” Resp’t’s Opp’n at 5.
12 Ms. Lerwick’s promise to accept the interim judgment and the final judgment
forecloses the possibility of divided elections and the further possibility of litigation against
vaccine manufacturer or vaccine administrator. This representation is in accord with the Federal
Circuit’s non-precedential order in Tembenis that “once a petitioner has elected to accept the
judgment, he or she has accepted it for all compensation purposes relating to that petition.”
Order, filed May 16, 2013, at 6, Tembenis, No. 2013-5029, (Fed. Cir.), ECF # 28.
16

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The Secretary’s argument that Ms. Lerwick should not receive any
compensation on an interim basis because B.L.’s condition might change is very
narrow. It concerns only awards for “future damages.” It also concerns a problem
that would occur only if B.L. died.
“Future damages” are included in just one part of the three categories of
compensation for which Ms. Lerwick seeks an interim award. To review, she
seeks $75,000.00 for past unreimbursed medical expenses, $250,000.00 for past
and future emotional distress, and $635,424.00 for diminished earning capacity.
Pet’r’s Mot. at 5.
For the first element, the past unreimbursed medical expenses, even B.L.’s
death would not affect the interim award. The estate of a person who suffers a
vaccine-related injury may recover compensation for unreimbursed medical
expenses. Zatuchni v. Sec'y of Health & Human Servs., 516 F.3d 1312 (Fed. Cir.
2008).
For the second element, an award for past and future pain and suffering,
B.L.’s death again would not affect the amount of compensation. Zatuchni also
authorizes a special master to award compensation for a decedent’s pain and
suffering caused by a vaccine. 516 F.3d at 1318.
The Vaccine Act limits the amount of compensation for emotional distress to
$250,000.00 in total (both past emotional distress and future emotional distress).
See 42 U.S.C. § 300aa-15(a)(4); Graves v. Sec’y of Health & Human Servs., 109
Fed. Cl. 579 (2013) (discussing statutory cap). The portion of future emotional
distress is subject to a reduction to net present value. 42 U.S.C. § 300aa-15(f)(4);
Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552 (Fed. Cir. 1994).
Here, although the parties have agreed that the amount of compensation for
past and future emotional distress is $250,000.00, they have not explicitly divided
the award into a portion for past and a portion for future. Such
compartmentalization is not necessary because the undersigned finds that
$250,000.00 is a reasonable amount of compensation for B.L.’s nine years of
emotional distress. It is not necessary to consider his future pain and suffering to
reach the statutory cap. Thus, this aspect of compensation does not implicate the
Secretary’s concern about “future damages.”
However, the third category of compensation included in Ms. Lerwick’s
motion, an award of $635,424.00 for diminished earning capacity, does involve
future damages. As mentioned previously, if B.L. were to die before the final
17

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resolution of the case, the administrator of his estate could not be awarded
compensation for his diminished earning capacity. Tembenis, 733 F.3d at 1195.
Tembenis, therefore, suggests that an interim award for diminished earning
capacity could cause complications for Ms. Lerwick. She cannot argue that it
would be impossible for B.L. to die unexpectedly. Although B.L. is expected to
live for several decades, see Tr. 1317-18 (Dr. Lubens), a random tragic accident
could happen.
The Secretary’s motion for reconsideration did not raise any specific
challenges to an award for past unreimbursed medical expenses and emotional
distress, as opposed to an award for diminished future earning capacity. The
Secretary cites McAllister v. Sec'y of Health & Human Servs., 70 F.3d 1240, 1243
(Fed. Cir. 1995), for the proposition that “compensation in a Vaccine Act case is
ordinarily calculated as of the time of the special master’s decision that leads to the
final judgment in the case.” Mot. for Recons. at 3. The interim award is consistent
with McAllister because, for the reasons explained above, the two components
(past unreimbursed medical expenses (through August 2013) and emotional
distress) will not change. Whenever there is a decision awarding Ms. Lerwick
compensation, the decision will include those two aspects.
Furthermore, not awarding Ms. Lerwick compensation for B.L.’s diminished
earning capacity on an interim basis does not prejudice her significantly. She will
receive compensation for the remaining two items (past unreimbursed expenses as
well as past pain and suffering) and this award exceeds $300,000.00. This amount
of compensation should allow her to care for B.L.’s needs until the final decision
regarding compensation is issued.
C. Complicated Processing
The Secretary also contended that a system in which petitioner receives two
or more decisions awarding compensation would complicate the Vaccine Program.
The Secretary particularly identified potential problems with obtaining annuity
contracts for smaller awards as a concern. Resp’t’s Resp. at 5.
The Secretary’s concerns about case processing are one factor to consider in
balancing whether to issue an order awarding compensation on an interim basis. If
the Department of Justice and the Department of Health and Human Services
devoted more resources to Ms. Lerwick’s additional (that is, interim) award of
compensation, then the resources available for other cases would be slightly
diminished.
18

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As discretionary matter, the potential burden of processing decisions
awarding compensation on an interim basis imposed upon the government should
be compared with the potential benefits. Ms. Lerwick has established that the
DTaP vaccine harmed B.L. and he, indisputably, suffers significant medical
problems. Ms. Lerwick’s unchallenged testimony is that she anticipates losing a
large portion of the assistance the State of California provides to her after B.L.’s
father pays child support to her. This interim award will alleviate some of her
difficulties. Speedily delivering assistance to a needy family is worth the
additional inconvenience to the government.
Finally, the Secretary’s concern about an annuity would fit more closely in a
case involving an annuity as part of an interim award. The present decision for
Ms. Lerwick does not contemplate the use of an annuity. She is being awarded
compensation for two items (past unreimbursed expenses and emotional distress)
that are typically paid in a lump sum. Therefore, an interim award to Ms. Lerwick
will not impair the Secretary’s ability to purchase an annuity contract for future
payments to her.
D. Subject to Appeal
The respondent’s final argument was an argument that an award of
compensation on an interim basis will be self-defeating. Ms. Lerwick has
requested an award on an interim basis to speed her receipt of money. The
Secretary contends that an interim award to her will actually delay her receipt of
compensation because the Secretary could file a motion for review. Resp’t’s Resp.
at 5-6.
In the Secretary’s view, a motion for review would delay the case in two
respects. The first is that a motion for review challenging this decision, which
awards compensation on an interim basis, would preclude an immediate entry of
judgment in Ms. Lerwick’s favor. The judgment would not be issued until a judge
of the Court of Federal Claims acted on the motion for review. And following that
order, the aggrieved party could appeal to the Federal Circuit.
The additional procedure to confirm the availability of compensation on an
interim basis presents a very real concern. Each party’s determination to pursue a
stage or two stages of appellate review will affect how quickly Ms. Lerwick
actually receives money. It may turn out that Ms. Lerwick would have received
money more quickly if she had not asked for an interim award. But, as long as
there is no precedential ruling from the Federal Circuit, this concern will always be
19

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present. In replying to the Secretary’s arguments, Ms. Lerwick seems to indicate
that she is willing to take the risk that a motion for review and an appeal may delay
her receiving compensation on an interim basis. Moreover, even after the
Secretary filed a motion for reconsideration, a submission that evidences some
dissatisfaction on the government’s part and may hint at the increased likelihood of
a motion for review, Ms. Lerwick maintained her desire for an award of
compensation on an interim basis.
The second part of her case that could be delayed, in the Secretary’s view, is
the final award of compensation. The Secretary asserted that if she were to file a
motion for review contesting the interim award, then the special master would
“lose jurisdiction to continue working on other damages issues.” Resp’t’s Opp’n at
5. For this argument, the Secretary cited no cases in support.
Also without citing any cases, Ms. Lerwick responded. She argued that a
motion for review challenging a decision awarding attorneys’ fees and costs on an
interim basis does not deprive special masters from jurisdiction “to resolve issues
not resolved in the decision which is the subject of the motion for review.” Pet’r’s
Reply at 4.
The Secretary’s argument remains based upon an event that may or may not
happen. If the Secretary were to file a motion for review and if she were intent
upon slowing adjudication of the attendant care and residential placement issues,
she could file a motion with the judge to whom the motion for review is assigned.
(Such a motion, presumably, would cite to legal authorities discussing the
relationship between appellate and trial tribunals.) Consequently, the suggestion
that a motion for review may delay resolution of all the damages issues is still not a
persuasive reason for denying Ms. Lerwick compensation on an interim basis.
Conclusion
Ms. Lerwick established that she is entitled to compensation in the
September 8, 2011 Ruling on Entitlement. She has further established that
compensation for two items, unreimbursed medical expenses through August 30,
2013 and pain and suffering, totals $325,000.00. She also has established that
future events will not affect the amount of the awards for these two items.
20

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There is no just reason to delay the entry of judgment on these two items.
Therefore, in the absence of a motion for review filed under RCFC
Appendix B, the clerk of court shall enter judgment in Ms. Lerwick’s favor
for $325,000.00 in interim compensation.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
21

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_06-vv-00847-2
Date issued/filed: 2014-07-29
Pages: 31
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/30/2014) regarding 244 Ruling Regarding Compensation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:06-vv-00847-MMS Document 246 Filed 07/29/14 Page 1 of 31
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
SHERRY LERWICK, legal *
representative of a minor child, *
B.L., * No. 06-847V
* Special Master Christian J. Moran
Petitioner, *
*
v. * Filed: June 30, 2014
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Damages; attendant care; living at
* home; statutory interpretation.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Curtis Webb, Twin Falls, ID, for petitioner;
Darryl R. Wishard and Michael P. Milmoe, United States Dep’t of Justice,
Washington, DC, for respondent.
PUBLISHED RULING REGARDING COMPENSATION1
B.L. is a profoundly handicapped ten-year-old. His mother, the petitioner in
this case, established that a vaccine caused his neurological disabilities.
Entitlement Ruling, 2011 WL 4537874 (Fed. Cl. Spec. Mstr. Sept. 8, 2011). Ms.
Lerwick is entitled to compensation from the National Childhood Vaccine Injury
Compensation Program.
The parties have agreed upon most of the elements of compensation except
for two disputed aspects. The first disputed issue is whether it is reasonably
necessary for B.L. to have a licensed vocational nurse (LVN) present with him 24
1 Pursuant to a February 24, 2014 order, the child’s name has been redacted. The parties
may request additional redactions pursuant to 42 U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule
18(b). In the absence of an additional request for redaction, this ruling will be posted in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002).

Case 1:06-vv-00847-MMS Document 246 Filed 07/29/14 Page 2 of 31
hours a day, every day. For reasons explained in section IV., Ms. Lerwick has not
established that this much coverage, which would be a considerable jump from
B.L.’s current level of care, is reasonably necessary.
The second issue is where B.L. will live. Ms. Lerwick proposes at her
home. The Secretary counters with a plan that, ultimately, does not provide
sufficient compensation for Ms. Lerwick to care for her son in her home. The
alternative is for B.L. to live at one of the homes for developmentally disabled
people in California. This issue presents both a legal question and a factual
question. As explained in section V., the question of law is resolved in Ms.
Lerwick’s favor. She wants B.L. to be in her house and she is entitled, as a matter
of law, to receive sufficient compensation for that purpose. However, if the proper
interpretation of the statute grants special masters discretion to award
compensation that is reasonably necessary to B.L.’s well-being (but not necessarily
sufficient for B.L. to stay at home), then the Secretary’s plan would be adopted.
I. Background
A. B.L.
Dr. Montoya, B.L.’s long-time pediatrician, succinctly summarized B.L.’s
abilities: “[B.L.] needs help with every activity.” Tr. 1018. Dr. Lubens, a doctor
the Secretary retained to examine B.L., had the same impression. B.L. is
“profoundly handicapped so that he’s totally dependent in all areas of life: feeding,
dressing, self-help, … eating, bathing, personal safety, everything.” Tr. 1274. The
Secretary’s life care planner, Ms. Laura Fox, also stated that “[B.L.] needs total
care. He needs somebody to help him through all his activities of daily living.”
Tr. 1517.
Dr. Lubens diagnosed B.L. as suffering from severe cerebral palsy and
treatment resistant epilepsy. Exhibit D at 6; Tr. 1251. The cerebral palsy is a
sequela to the vaccine-caused acute disseminated encephalomyelitis (ADEM) and
has impaired B.L.’s neurologic functioning at every level. Tr. 1325-26. He
“communicates like an infant, a pre-toddler infant.” Tr. 1300. B.L. has the ability
to recognize his mother and when he sees her, he “can express joy and
excitement.” Tr. 1300.
Ms. Lerwick purchased her family’s current home in 2009, when B.L. was
four years old. Then, B.L. was transported in a stroller. Tr. 1437. The house is a
two-story home, located on a cul-de-sac. On the second floor are a second family
room, Ms. Lerwick’s bedroom, and a bathroom with a deeper bathtub. When Ms.
2

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Lerwick wants B.L. in any of these locations, she must carry him up the stairs. Tr.
1439; see also Tr. 1123-24 (Ms. Lerwick’s description of how she moves B.L.).
Although B.L. has some difficulties with the physical structure of Ms.
Lerwick’s house, the parties anticipate that the award of compensation will allow
Ms. Lerwick to modify her home. See exhibit 108A (bid for home modifications),
Tr. 1398-99. Ms. Lerwick stated that she plans to stay in this house for at least five
years. The house has some advantages, including an adequate school district and a
nearby firehouse. Tr. 1453, 1457.
At home, B.L. resides with his mother and his sister. Tr. 1235.2 B.L.
currently has an emotional connection to his mom. The spark between them is
readily apparent in a video Ms. Lerwick submitted. Exhibit 126. Other witnesses
recognized the bond between Ms. Lerwick and her son. Tr. 1031 (Dr. Montoya),
1152 (Dr. Sankar). Ms. Lerwick also testified that B.L. has positive social
interactions with his cousins and neighbors. Tr. 1445.
B.L.’s disabilities have not prevented him from attending school. He is the
subject of an individualized education program. Exhibit 127; exhibit 139. The
school system is responsible for providing a licensed vocational nurse for the 10
students in B.L.’s classroom. However, according to Ms. Lerwick, the school
system has not always fulfilled its obligation and B.L. has missed school days. Tr.
1122-26, 1419; see also Tr. 1561 (Ms. Fox). In the two most recent complete
school years, out of 179 days of school, B.L. has been entirely absent 26 days in
2012, and 31 days in 2013. Exhibit 135 at 2, 6.
B. Current Arrangement for B.L.’s Care
All of B.L.’s needs are factors in the assistance various public entities
provide to Ms. Lerwick. She resides in the State of California, which has
promoted care for developmentally disabled people for decades. A program called
Medi-Cal EPSDT pays for an LVN to come to Ms. Lerwick’s home for 140 hours
per month. A separate program, administered through California’s regional
centers, provides 30 hours of LVN coverage for Ms. Lerwick to have a respite
from caring for B.L. Exhibit 107; Tr. 1112-13, 1253. Together, these two
2 Ms. Lerwick is divorced from B.L.’s father, who sees his son occasionally. Tr. 1459;
exhibit 133 (divorce stipulation).
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programs equal approximately 40 hours of LVN assistance per week. Tr. 1113,
1282-83, 1570.
The licensed vocational nurses who assist Ms. Lerwick are employed by a
private agency, Premier Healthcare Services. A physician signs a plan of care
authorizing the nurses working for that agency to perform the tasks listed on the
care plan. Tr. 1525, 1571-72. Here, Dr. Montoya signed a plan of care instructing
the nurse to provide certain medications, to take various standard safety
precautions such as adequate lighting and emergency preparedness, to use
precautions against aspiration at all times, and to assess B.L.’s respiratory and
neurologic functions, etc. Exhibit 107 at 9-12.
At Ms. Lerwick’s direction, the LVN helping her sometimes accompanies
B.L. to school. A private nurse for B.L. duplicates, in some respects, the nursing
services that the school already provides. Ms. Lerwick has found that the needs of
the 10 students in B.L.’s class can overwhelm the nurse caring for them. Thus, she
devotes some of her nursing hours to time when B.L. is at school. Tr. 1419.
A third program offers additional aid to Ms. Lerwick, although not
necessarily LVN coverage. The California Department of Social Services gives
Ms. Lerwick an allotment of money to pay for in-home supportive services (IHSS).
Ms. Lerwick decides how to use this money. Although Ms. Lerwick could spend
this money to purchase (expensive) nursing hours, she chooses to pay herself to
care for B.L. Since her hourly rate is commensurate with the hourly rate for an
unlicensed person, the IHSS money purchases more hours of her time. Exhibit
107; Tr. 1114, 1253-54. In July 2013, the IHSS money was the equivalent of
approximately 190 hours of unlicensed care per month (approximately 44 hours
per week). Exhibit 107. However, due to a reduction in services in August 2013,
Ms. Lerwick’s allotment will equal only about 156 hours per month
(approximately 36 hours per week). Tr. 1114, 1424. A non-licensed person,
sometimes known as a home health aide, can perform tasks like repositioning,
grooming, and bathing. Tr. 1519.
The effect of all these services has been to keep B.L. safe in Ms. Lerwick’s
home. Tr. 1050 (Dr. Montoya). For example, the fact that B.L. has not been
hospitalized for aspirational pneumonia could be attributed to the excellent care he
receives. Tr. 1154, 1545-46.
While B.L. has not worsened in the last few years, he also has not improved
in any significant manner. The vaccine-induced ADEM inflicted severe and
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permanent damage to his brain. Consequently, over the past two years that Dr.
Montoya has acted as B.L.’s pediatrician, Dr. Montoya has not seen any
improvement. Tr. 1014, 1060. Likewise, Dr. Raman Sankar, B.L.’s pediatric
neurologist at U.C.L.A., stated that B.L.’s condition is “stable” and he does not
expect any noticeable progress. Tr. 1138.
Unfortunately, B.L.’s abilities are unlikely to improve in any meaningful
way. Dr. Sankar predicted that 15 years from now, B.L. would not be able to do
any more for himself (Tr. 1171) an opinion shared by Dr. Lubens (Tr. 1298).
Thus, B.L. requires a comprehensive plan to care for him throughout his life. The
parties dispute the best ways to address B.L.’s needs.
II. Procedural History
Ms. Lerwick filed her petition on December 12, 2006. A September 8, 2011
ruling set forth the relevant procedural history during the entitlement phase of the
case and found that Ms. Lerwick was entitled to compensation.
In September 2011, the parties started to determine the amount of
compensation to which Ms. Lerwick is entitled. See order, issued Sept. 27, 2011.
To assist her in this process, Ms. Lerwick retained Re-Entry Inc., a business owned
by Helen Woodard. With the assistance of an associate, Amy Weaver, Ms.
Woodard obtained some updated medical records and school records about B.L.
Ms. Lerwick provided a schedule of B.L.’s day, listing time spent eating,
performing six types of exercises, being cleaned, and attending therapy. Exhibit 63
at 4. Ms. Woodard incorporated this material into a life care plan, which was filed
as exhibit 60 on April 23, 2012. Ms. Woodard proposed, among other things, that
B.L. receive 24 hours of licensed nursing care a day for the remainder of his life,
which he would spend in Ms. Lerwick’s house. Ms. Woodard’s original life care
plan did not offset the cost of any item with an amount from insurance.
Between April and August 2012, Ms. Lerwick filed into the record various
materials that the staff from Re-Entry had obtained. Exhibits 62 through 105.
After Ms. Woodard presented her life care plan, the Secretary’s life care planner,
Ms. Fox, saw B.L. at his home and school. Ms. Weaver accompanied Ms. Fox on
this site visit.
On September 10, 2012, the Secretary presented a comprehensive motion to
amend the schedule, which had required the Secretary to file a responsive life care
plan by September 10, 2012. The government proposed that Ms. Woodard amend
her life care plan to include offsets for insurance. The Secretary also stated that
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she was exploring the possibility of retaining a doctor to examine B.L. Ms.
Lerwick filed an amended life care plan on September 28, 2012, as exhibit 106.
Dr. Perry Lubens, a neurologist whom the Secretary retained, examined B.L.
on February 20, 2013. On March 21, 2013, the Secretary filed Dr. Lubens’s
resulting report as exhibit D. The Secretary also provided Dr. Lubens’s report to
Ms. Fox.
The Secretary filed two documents from Ms. Fox on May 6, 2013. The first
document, exhibit E, is a six-page narrative nursing assessment. The other
document, exhibit F, is a comprehensive response to the petitioner’s life care plan.
Ms. Fox did not agree with Ms. Woodard’s recommendation for 24-hour licensed
nursing care. Ms. Fox also recommended that at age 25, B.L. should live in a
residential facility, not Ms. Lerwick’s house. Exhibit F at 7-8.
The differing life care plans were discussed at an ensuing status conference
on May 28, 2013. Ms. Lerwick represented that the parties were “worlds apart on
the most important issue” − whether B.L. needed 24-hour licensed care. Ms.
Lerwick recommended scheduling a hearing in early September 2013. Ms.
Lerwick proposed that she and Ms. Woodard would testify at the hearing.
Additionally, Ms. Lerwick indicated that other witnesses might include directors of
nursing facilities and B.L.’s treating neurologist. The Secretary agreed with the
scheduling of a hearing in September and indicated that she planned to offer
testimony from Ms. Fox and Dr. Lubens. Additionally, the Secretary stated that
she might find administrators of residential facilities to testify.
Once the case was being scheduled for a hearing, Ms. Lerwick took two
steps. First, she made a legal argument by filing a motion for summary judgment.
Ms. Lerwick argued, as a matter of law, that she should be awarded a sufficient
amount of compensation to allow for B.L. to remain in her house. Additional
briefs were filed on this topic. For the details of those arguments, see section V.
below.
Second, Ms. Lerwick developed the factual basis for her contentions. For
example, on July 15, 2013, Ms. Lerwick filed responses from two of B.L.’s
treating doctors, Dr. Sankar and Dr. Montoya, to a questionnaire developed by Re-
Entry. Exhibit 110A; exhibit 110B; exhibit 110C; exhibit 111A; exhibit 111B.
Staff from Re-Entry had developed this questionnaire without any input from Ms.
Fox. Ms. Lerwick also filed an affidavit from B.L.’s nurse, Maricel Seiwert.
Exhibit 112.
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The Secretary also made a legal and factual response. She submitted a letter
from Michael Cutchshaw, a director of operations for ResCare, which operates
residential facilities in California. Exhibit G. She also submitted other material
regarding residential placements. Exhibits H through K.
Throughout August 2013, and continuing through early September 2013, the
parties filed additional evidence. Exhibit L is an amended life care plan from Ms.
Fox, listing areas of agreement and disagreement in the two life care plans.3
Exhibit 126 is a video depicting how B.L. lives. This “day-in-the life” video was
very effective in communicating the extent of B.L.’s abilities.
On September 12, 2013, a telephonic hearing was conducted. The only
witness was Dr. Montoya. The hearing resumed in San Diego, California on
September 17, 2013, and concluded the next day. Ms. Lerwick, Ms. Woodard, Dr.
Lubens, and Ms. Fox appeared in person. Dr. Sankar and Mr. Cutchshaw testified
via telephone.
After the hearing, the parties filed briefs.4 As directed by an April 3, 2014
order, the parties made supplemental submissions on April 18, 2014. Thereafter,
the parties filed additional material on April 23, 2014 and May 9, 2014. These
filings make the case ready for adjudication.
III. Standards for Adjudication
The pertinent statutory language for compensation states:
Compensation . . . for a vaccine-related injury . . .
shall include the following:
3 In their life care plans, the parties have agreed to compensate Ms. Lerwick for the
unreimbursed portion of the cost of the many types of therapies B.L. receives. Similarly, B.L.
sees multiple doctors, Tr. 1033 (Dr. Montoya), 1460 (Ms. Lerwick), and there is no dispute about
these items. Exhibit 131.
4 Ms. Lerwick was awarded $325,000.00 in compensation on an interim basis. That sum
represents a portion of the amount to which she is entitled. 2014 WL 1897656 (Fed. Cl. Spec.
Mstr. Apr. 16, 2014).
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(1)(A) Actual unreimbursable expenses incurred from
the date of the judgment awarding such expenses and
reasonable projected unreimbursable expenses which
(i) result from the vaccine-related injury for which
petitioner seeks compensation,
(ii) have been or will be incurred by or on behalf
of the person who suffered such injury, and
(iii)(I) have been or will be for diagnosis and
medical or other remedial care determined to be
reasonably necessary, or
(iii)(II) have been or will be for rehabilitation [etc].
42 U.S.C. § 300aa—15(a). A critical aspect is that the item of care be “reasonably
necessary.”
Special masters have characterized this phrase as a “vague instruction” and a
standard for which there is “no precise” definition. Bedell v. Sec’y of Health &
Human Servs., No. 90-765V, 1992 WL 266285, at *4 (Cl. Ct. Spec. Mstr. Sept. 18,
1992). A very early decision in the Vaccine Program explained that the term
“reasonably necessary” means
that an award should provide compensation beyond that
which is required to meet the basic needs of the injured
person in the compensable areas but short of that which
may be required to optimize the injured person’s quality
of life. What is reasonably necessary lies somewhere
between that which is ‘indispensable’ and that which is
‘advantageous.’
Scheinfield v. Sec'y of Health & Human Servs., No. 90-212V, 1991 WL 94360, at
*2 (Cl. Ct. Spec. Mstr. May 20, 1991). Consistent with Congress’s intent that the
Vaccine Program be generous, it is logical to interpret “reasonably necessary” as
closer to “advantageous” than to “indispensable.” See H.R. Rep. No. 99-908, at 3
(1986), reprinted in 1986 U.S.C.C.A.N. at 6344.
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After these early decisions, very few decisions in the Vaccine Program have
determined whether a particular level of attendant care is “reasonably necessary.”5
As discussed below, “the reasonably necessary” standard is the focus for
determining the amount of attendant care for B.L. In addition, the “reasonably
necessary” standard seems to underlie the Secretary’s position regarding whether
B.L. should live at home for the remainder of his life.
IV. Attendant Care
As mentioned earlier, the parties have agreed upon many items in B.L.’s
care plan. For example, before the hearing, the parties agreed upon the frequency
of doctors’ appointments, the frequency of many types of therapy, and equipment
that B.L. will use. Exhibit 109 (supplemental life care plan) at 2. These
agreements have greatly simplified this case and the efforts of both life care
planners, Ms. Woodard, and Ms. Fox, and both attorneys, Mr. Webb and Mr.
Milmoe, are greatly appreciated. However, the parties have not resolved an
important issue, the amount of attendant care.
A. Differing Recommendations for B.L.’s Care
Ms. Lerwick and Ms. Woodard propose that an LVN should care for B.L. 24
hours a day, every day. Exhibit 109 at 4-5; Tr. 1221. In contrast, the Secretary
and Ms. Fox suggest a plan in which different types of care-givers assist Ms.
Lerwick. Under the government’s plan, B.L. will have an LVN for 8 hours every
day and a home health aide for 4 hours every day, for a total of 12 hours of daily
care (not including the LVN coverage provided by the school system on school
days). Exhibit L (life care plan); Tr. 1521, 1556.6
5 The primary reason why special masters have written so few decisions addressing
attendant care is that once a case reaches the stage in which damages are being determined, the
parties have almost always compromised their positions. These agreements have reduced the
litigation over items of compensation. The credit for these settlements belongs to the attorneys
and the life care planners whom they employ.
6 The financial difference between the two plans is large. Ms. Woodard asserted that
LVN care costs $37 to $55 per hour and the annual cost is $324,120 to $481,800. Exhibit 60 at
PDF 56. Ms. Fox accepted that LVN care costs $37 per hour and allotted 8 hours. Ms. Fox
added aide level care at $18 per hour for 4 hours per day. Ms. Fox made adjustments for respite
care and care that will continue to be available through the regional center. The total annual cost
for Ms. Fox’s plan was $124,472. Exhibit L at 1-2.
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The differences in recommendations reflect differences in philosophies
between Ms. Woodard and Ms. Fox. The starting point for Ms. Fox is the level of
care that B.L. is receiving from various California programs. Tr. 1516-17.
Because Ms. Fox concluded that B.L.’s 2013 care plan (exhibit 107) was
reasonable, her goal was either to continue that plan or to increase it. Tr. 1518,
1520-21. Under B.L.’s current plan, an LVN needs to be present for B.L. when
Ms. Lerwick is absent because B.L. may need medication. But, when Ms. Lerwick
is with B.L., there is a need for support services only. If B.L. needs medication,
Ms. Lerwick can provide it to her son. Tr. 1517-20.
Ms. Woodard took a different view regarding Ms. Lerwick’s contribution.
She stated “it’s my position that she has no obligation to provide him extraordinary
care. And his extraordinary care needs occur throughout the 24 hours.” Tr. 1575.
Ms. Woodard explained that without 24 hour LVN coverage, Ms. Lerwick “has to
wake up and attend to [B.L.’s needs]. And she does. She’s alert to his needs. She
checks him regularly. She looks at him on a monitor. But more importantly, she
goes in to take care of whatever has happened. And it’s really important to start
getting back to her being able to sleep like regular people sleep, not wake up every
hour and a half or two hours.” Tr. 1573-74.
Since the submission of petitioner’s life care plan in April 2012, Ms.
Woodard has recommended 24-hour LVN coverage. The strongest support for this
recommendation in the life care plan appears to be a June 23, 2011 letter in which
Dr. Sankar stated that B.L. should be under constant supervision by a qualified
LVN. See exhibit 60 (life care plan) at PDF 37; exhibit 90 at 2 (Dr. Sankar’s
letter).7 However, the context for Dr. Sankar’s recommendation appears to be a
request that the school system provide an LVN while B.L. rides the school bus
because his seizures “occur primarily in the morning.” Exhibit 90 at 2. Dr. Sankar
did not address whether an LVN was required while B.L. was sleeping.
Dr. Sankar’s testimony raised additional questions about the need for LVN
assistance. Before the hearing, Dr. Sankar had written a July 12, 2013 letter to Ms.
Lerwick’s attorney, stating “[B.L.] requires 24 hour a day nursing care by a
licensed vocational nurse.” Exhibit 110A at 1. At the hearing, Dr. Sankar stated
that he understood the differences among certified nurse’s assistants, licensed
vocational nurses, and registered nurses “to some degree.” Dr. Sankar described
7 Ms. Woodard's narrative also mentions a March 21, 2012 report from Maria Taylor,
RN. See exhibit 60 at PDF 41.
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himself as limited to saying “what the child needs.… Whether it can be done by
the LVN or the CNA is usually not my call, because that is not the bulk of my
practice in the hospital.” Tr. 1134. When questioned about the July 12, 2013
letter, Dr. Sankar stated that he specified the person providing care to B.L. had to
be an LVN because “I was informed that somebody less than LVN may not be able
to do what needs to be done.” Tr. 1146.
A similar pattern occurred with respect to Dr. Montoya. In April 2012, he
completed a form prepared by Ms. Woodard’s staff. Dr. Montoya stated that B.L.
“will likely always require full time supervision.” Exhibit 119 at PDF 7. Like Dr.
Sankar, Dr. Montoya did not know the differences among different types of
caregivers. Tr. 1012, 1021. When Dr. Montoya was asked specifically about his
April 2012 recommendations, Dr. Montoya stated that he could not comment on
whether the overnight care should be provided by a home health care aide, licensed
vocational nurse, or parent. Tr. 1077.
On the other hand, Dr. Lubens seemed knowledgeable about abilities of
different caregivers from his work in advocating for his patients. Tr. 1290-98. Dr.
Lubens’s opinion was that B.L. did not require 24-hour nursing care. Tr. 1281-86.
In explaining why B.L. did not need 24-hour nursing care, Dr. Lubens stated that
B.L. “needs an adult to do the care that Dr. Sankar talked about: positioning,
making sure he get his medication,… watching him carefully, even doing physical
therapy on him. I just don’t think any of those things require a nurse.” Tr. 1310.
In Dr. Lubens’s view, Ms. Lerwick is responsible for caring for B.L. outside of the
time an LVN is present (8 hours per day) and outside of the time a home health
aide is present (4 hours per day). Thus Ms. Lerwick is responsible for B.L. during
his sleeping hours. Tr. 1328-29.
The summary above points out that the parties actually have two disputes.
The first is the number of hours of attendant care per day. Ms. Woodard advocates
for 24 hours of care. Ms. Fox proposes 12 hours (plus other care during school).
Ms. Fox, effectively, makes Ms. Lerwick responsible for B.L.’s well-being during
the nighttime hours when B.L. is sleeping. See Tr. 1277-78, 1574-76.
The second dispute is who provides the care. The choices are either an LVN
or a home health aide. Among the witnesses who discussed the differences
between LVNs and home health aides, Ms. Fox was particularly knowledgeable
because she is a nurse licensed in California and has supervised home health aides
in California. Tr. 1500-07. Ms. Fox explained that LVNs obtain one year of post-
secondary education and pass an examination to obtain a license. In contrast,
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home health aides are not required to have achieved any particular level in
education, although most have graduated from high school. Home health aides
attend a 60-hour training program to receive certification. Tr. 1511-12.
The educational and training differences between LVNs and home health
aides are consistent with the duties that they perform. For B.L., it is important to
note that LVNs are authorized to provide medication and to suction patients.
These tasks and others like them are considered aspects of “skilled” nursing care.
Tr. 1231-34 (Ms. Woodard), 1327 (Dr. Lubens), 1560 (Ms. Fox); Exhibit 115 (Cal.
Dep’t of Health Servs. Licensing & Certification Program, Nurse Assistants, Home
Health Aides, Hemodialysis Technicians Certification Facts (2006)).
California does not currently provide an LVN to watch B.L. 24 hours per
day. If B.L. required continual monitoring from a licensed nurse, then it seems
likely that the plan of care developed through the California Regional Centers
would have given Ms. Lerwick this assistance. Tr. 1517-18. Instead, California is
providing 170 hours of LVN assistance per month, and approximately 195 hours of
aide-level care.8 Exhibit 107. With approximately 12 hours of assistance per day,
B.L. has done about as well as possible. The lack of 24-hour nursing care has not
harmed B.L. as both Dr. Montoya and Dr. Sankar testified that he has remained
stable while they cared for him.
California’s provision of LVN care plus aide care is influential. By all
accounts, California has established an admirable system to care for
developmentally disabled individuals. Tr. 1506; see Arc of California v. Douglas,
2:11-CV-02545-MCE, 2013 WL 3331675, at *2 (E.D. Cal. July 1, 2013) (greater
eligibility under California’s Lanterman Act than under federal HCBS waiver
program) (citing Sanchez v. Johnson, 416 F.3d 1051, 1064-65 (9th Cir. 2005)
(describing Lanterman Act and the services it provides)); see generally exhibit M;
see also exhibit 122. Ms. Fox testified about the California system and Ms.
Woodard did not contradict Ms. Fox’s assessment. Tr. 1506. Thus, while
California’s system is not necessarily perfect, it is a reasonable starting point.
8 Because the Secretary proposes either to continue or to expand this care, the parties’
dispute is really about additional coverage. It is not an “all or nothing” situation.
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B. Evaluation of Petitioner’s Arguments and Evidence
To justify an increase in B.L.’s current level of attendant care beyond her
current level, Ms. Lerwick points to three aspects of B.L.’s condition: B.L.’s
unpredictable seizures, B.L.’s risk for aspiration, and B.L.’s risk for bed sores. Of
these three, only seizures and aspiration require the assistance of a licensed nurse.
A licensed nurse is not needed to address B.L.’s risk of bed sores because a
certified nursing assistant (CNA) is qualified to turn B.L. periodically.
1. Seizures
Despite taking medication as a precaution against seizures prophylactically,
B.L. has seizures unpredictably. Tr. 1015-16, 1139-40, 1156, 1284. He has
different types of seizures. Sometimes, his eyes glaze and he stops tracking.
Sometimes, his muscles twitch and he can go into full body convulsions. Tr. 1201,
1472-76 (Ms. Lerwick), see also Tr. 1040-41 (Dr. Montoya).
If B.L. were to have a seizure that was not stopped, the seizure could send
him into a state of status epilepticus. This could result in further brain injury. Tr.
1044 (Dr. Montoya). Dr. Sankar emphasized that a short seizure is not likely to
worsen the brain injury, although a prolonged seizure might. Dr. Sankar was more
worried about B.L.’s ability to breathe during any seizure. Tr. 1143-44, 1156.
Dr. Sankar, B.L.’s treating neurologist, has provided instructions that can be
implemented when B.L. has a seizure at school. See exhibit 90 at 2-3; exhibit 124
at 1. When B.L.’s seizure lasts more than a few minutes, his caregiver provides
Klonopin, which is an oral medication. If the Klonopin does not halt the seizure,
the next medication is diazepam. Diazepam is given rectally. The next step is to
call for emergency assistance from paramedics. Tr. 1271; see also Tr. 1041-42
(Dr. Montoya), 1106 (Ms. Lerwick).
Ms. Lerwick has been trained to give B.L. either Klonopin or diazepam. Tr.
1412-16 (describing the process for administering diazepam). She estimated in the
past year, she gave B.L. Klonopin 25-30 times. On five occasions, she has given
her son diazepam. Tr. 1203; but see Tr. 1472-76 (B.L. given diazepam 12-20
times in year and a half). Although Ms. Lerwick testified about the frequency of
B.L.’s seizures requiring medication, see Tr. 1203, 1472-76, her recollection did
not appear accurate. When Ms. Lerwick reported to doctors how frequently she
was administering Klonopin or diazepam, the frequency was much less. See, e.g.,
exhibit 119 at 47.
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To care for B.L. at school, the school system has a seizure action plan.
Every child with epilepsy in California has a seizure action plan. Tr. 1269. In
California, a teacher (not a nurse) may administer the medication to the student.
American Nurses Ass’n v.Torlakson, 304 P.3d 1038 (Cal. 2013); see also Tr. 1141-
42 (Dr. Sankar).
A few days before Ms. Lerwick testified, B.L. had a seizure while in school.
The school nurse gave him Klonopin, then diazepam, and then called for an
ambulance. Tr. 1105-06. The paramedics brought him to a local hospital where a
doctor, working with Ms. Lerwick’s assistance, assessed B.L. for baseline
functioning following the seizure. Tr. 1109-10; see also Tr. 1205, 1431-34. This
seizure that B.L. had at school a few days before the hearing confirms that when
adults respond to B.L. quickly, the seizure does not impair his functioning for a
lengthy time. See Tr. 1156-57 (Dr. Sankar: risks from prolonged seizures can be
averted with Diastat); see also Tr. 1142 (Dr. Sankar describing the relationship
between intervention time and seizure duration). Although B.L.’s seizure was
severe, the school nurse was able to recover him within 15 minutes and the
paramedics arrived before the seizure ended. Tr. 1109. Following the seizure,
B.L. was promptly transported to a local emergency room and seen by a doctor
who coordinated care with B.L.’s neurologist, Dr. Sankar. Tr. 1109-10. Thus,
although there is some possibility of harm from B.L.’s seizures, the likelihood of
harm is relatively remote in light of the interventions dictated by B.L.’s seizure
action plan.
Moreover, Ms. Lerwick did not testify about the frequency of seizures that
occur during the night. Cf. exhibit 119 at 22 (two seizures at night while falling
asleep); exhibit 90 at 2 (Dr. Sankar letter stating that B.L.’s seizures usually
happen in the morning); exhibit 98 at 52 (history from 2011, stating “seizures
occurring in the AM around the same times 1030 or 0830”); exhibit 118 at 32
(2012 hospital record stating “overnight, no seizures witnessed by parents”). The
nighttime seizures, if any, are the important ones because if Ms. Lerwick had
established that she was often giving B.L. Klonopin and diazepam at night, then
this pattern might have constituted persuasive evidence justifying the provision of
a licensed nurse for the overnight hours. To the extent that some small percentage
of B.L.’s seizures happen at night and Ms. Lerwick interrupts her sleep to
administer medications to him, that irregular occurrence is part of the obligations
of being a parent. See McCollum v. Sec'y of Health & Human Servs., 91 Fed. Cl.
86, 92 (2010) (“[h]ome attendant care does not, however, exempt parents from
caring for their own children”). Periodically, all children will wake their parents
with various complaints. Ms. Lerwick has not demonstrated that her experience
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with B.L. at night is sufficiently out-of-line with another parent’s nighttime care to
support the need for a licensed nurse for all hours of the day.
The determination that Ms. Lerwick has not met her burden of establishing
that 24-hour LVN coverage is reasonably necessary is also informed by the
possible harm of a seizure. Dr. Sankar explained that a seizure that medication
quickly controls is unlikely to cause any neurological injury. Tr. 1143-44, 1156.
2. Aspiration
Aspiration means “the drawing of a foreign substance, such as the gastric
contents, into the respiratory tract during inhalation.” Dorland’s Illustrated
Medical Dictionary 166 (32d ed. 2012). B.L. is at an increased risk for aspirating
because the functioning of his muscles involved in swallowing is impaired. Tr.
1154-56 (Dr. Sankar). He could aspirate on his own saliva, preventing him from
breathing. Tr. 1035, 1153-54, 1279. If B.L. aspirated when he is eating, the food
could end up in his lungs where it can be a source for bacteria leading to
pneumonia. Tr. 1035-36.
B.L.’s caregivers currently take precautions to minimize the likelihood of
aspiration. For example, they can position him so that he is more upright. Another
precaution is to thicken his food to make it easier to swallow and more difficult to
aspirate. Tr. 1036, 1066, 1476. If these precautions do not prevent aspiration, and
he aspirates, B.L.’s caregiver must make sure he is properly positioned and call for
emergency assistance. Tr. 1144. Another response to aspiration is to use an
electric pump to suction the substance out of B.L.’s respiratory tract. Tr. 1036,
1154.
The evidence about actual examples of B.L. having respiratory trouble was
inconsistent. Although B.L. had been treated for pneumonia several years ago, he
has not been recently hospitalized for pneumonia that could have developed as a
consequence of aspirating food. Tr. 1279, 1524, 1545-46. In March 2012, B.L.’s
gastrointestinal doctor, Dr. Katz, ordered a swallow study. Exhibit 66 at 21.
During this testing, B.L. exhibited “no aspiration or penetration on thin and regular
liquids and thin and thick purees.” Exhibit 66 at 19. A second swallow study was
performed the following year with similar results. Exhibit 120 at 1 (“No aspiration
or penetration was observed through the exam.”). In addition, B.L. appeared, in
the day-in-the-life video, to be able to drink from a sippy cup and Ms. Lerwick
stated that he can eat a variety of foods in a restaurant. Tr. 1436. The day-in-the-
life video did not show B.L. being suctioned. Exhibit 126; see also Tr. 1277 (Dr.
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Lubens). During Dr. Lubens’s appointment with B.L., Dr. Lubens did not see B.L.
being suctioned. Tr. 1277. Similarly, during Ms. Fox’s site visit to B.L.’s home
and school, Ms. Fox did not see B.L. being suctioned. Tr. 1524.
On the other hand, Ms. Lerwick told Dr. Lubens that she used the suction
machine “one to five times a day.” Exhibit D at 4. Ms. Lerwick presented a
similar estimate during her testimony. Tr. 1471, 1478-79.
B.L.’s choking on either food or saliva could conceivably lead to a terrible
outcome, such as aspiration pneumonia or worse. Tr. 1153-54. But, 24-hour
assistance from a nurse who could suction away the impediment is not reasonably
necessary to prevent aspiration. Several reasons support this finding. First, given
that the time in dispute is the nighttime period, food appears to be a minimal
concern. Presumably, Ms. Lerwick feeds B.L. hours before he goes to bed and this
interval allows B.L. to digest his meal. Ms. Lerwick did not testify about instances
of B.L. choking during the night. Second, B.L. has not recently experienced
pneumonia, which could have been the result of aspiration. See Tr. 1524, 1542,
1545. Third, B.L.’s swallow studies did not show any evidence of aspiration.
Exhibit 66 at 19; exhibit 120 at 1. The second and third reasons combine to
support the inference that B.L. has the ability to handle the saliva his body creates.
Fourth, B.L.’s plan for care at home, signed by Dr. Montoya, did not order that
B.L. be suctioned, or state that he needed suctioning. Exhibit 107; Tr. 1525. Fifth,
the forthcoming compensation to Ms. Lerwick will include money to allow her to
purchase a bed that will assist with B.L.’s positioning at night. See exhibit N at 6,
exhibit 98 at 10 (Dr. Montoya’s recommendation for a bed). All these factors
contribute to finding that overnight monitoring by an LVN is not reasonably
necessary to prevent aspiration.
Consequently, the two aspects of B.L.’s life that arguably implicate a need
for licensed care, his irregular seizures and his potential aspiration, are
unpersuasive grounds for allowing such care. The remaining issue is whether B.L.
is at such risk for skin infection either from bed sores or his incontinence that an
attendant should care for him throughout the night. If so, a CNA, not an LVN,
could turn B.L. periodically to prevent bed sores and change his diaper.
3. Skin Infections
The evidentiary presentations about B.L.’s risk for skin infection were not
robust. In hindsight, it appears through the hearing, the parties focused more on
the two topics that would require LVN coverage and spent relatively less time on a
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topic involving only home health aide care. Nevertheless, the parties subsequently
submitted sufficient evidence for a ruling regarding skin infections.
B.L.’s risk for skin infections comes from two sources. First, B.L. is
incontinent. Second, B.L. also has some risk for developing bed sores that could
lead to an infection.
The starting point for analysis is B.L.’s current status. With respect to
B.L.’s need for diapers, Ms. Woodard’s life care plan provides relatively few
details. Although Ms. Woodard’s 49-page life care plan includes a lengthy
recitation of medical records, there are only two references to “diaper,” including
once in the context of B.L.’s medical history, then again in her discussion of B.L.’s
current condition. Exhibit 60 at PDF 38, 48. Consequently, Ms. Woodard
included diapers and supplies among the items that B.L. requires. Id. at PDF 55.9
The recommended diapers were generic, not special ones people with skin
sensitivity would use.
The Secretary’s witnesses were a source of more information about B.L.’s
need for diapers. During the appointment with Dr. Lubens, Ms. Lerwick told him
that B.L. “uses about six [diapers] a day. He has a bowel movement every other
day. He has never had problems with urinary tract infections.” Exhibit D at 4.
Ms. Fox learned similar facts about B.L.: “He is reported to have diarrhea about
twice a month. He does not have urinary tract infections. He uses a size 7 diaper
and uses 5-6 per day.” Exhibit E at 3.
Medical records corroborate the accuracy of the reports from Dr. Lubens and
Ms. Fox. In July 2012, Ms. Lerwick requested that Dr. Montoya reauthorize
diapers, stating that B.L. uses “4-5 diapers daily . . . size 6.” Exhibit 119 at PDF
35. The next month, Dr. Montoya evaluated B.L.’s skin and noted “no diaper
rash.” Id. at PDF 39.
The Premiere Healthcare Services plan, which was current when the hearing
was held, calculates approximately five hours of “[b]owel, [b]ladder care” needed
weekly, and authorizes assistance for roughly four of those hours. Exhibit 107 at
PDF 17. This appears to indicate that nearly all B.L.’s weekly diapering needs are
met by his day-time care.
9 Ms. Fox did not dispute that B.L. needs diapers and supplies. See exhibit F at 6.
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The number of diapers per day suggests that B.L. is being regularly changed
during the day, but not necessarily during the night. Ms. Lerwick did not testify
that she was waking to change B.L. Rather than routine nighttime interruptions, it
seems likely that B.L. “is changed on a habit schedule.” Exhibit 94 (April
2011Temecula School District report) at PDF 9. Thus, although B.L.’s inability to
toilet himself does create a need for diapers and associated supplies, the constant
presence of an attendant to clean B.L. throughout the nighttime hours while he is
sleeping is not “reasonably necessary.” 10
A second risk for skin infections in B.L. is developing bed sores. People
who cannot move themselves are at risk for developing bed sores. Tr. 1039.
Before the hearing, B.L.’s doctors had relatively little concern about his
development of bed sores. The only time doctors described a risk for bed sores
was in 2012, when Dr. Montoya included this risk-factor among the justifications
for a bed for B.L. Exhibit 102 at 19. Ms. Woodard noted Dr. Sankar’s
recommendation for a special bed that could elevate B.L.’s head and chest in her
life care plan, exhibit 60 at 39, and also recommended the purchase of a bed. Id. at
PDF 59. Otherwise, Ms. Woodard did not describe any medical record suggesting
B.L. was at risk for bed sores and did not further propose any equipment, such as
an egg carton mattress, that would minimize the likelihood of bed sores. See
exhibit 60; see also exhibit W at 3 (Ms. Fox’s report noting that Ms. Lerwick did
not request equipment that could prevent bed sores).
The lack of concern about bed sores may be attributable to B.L.’s history. It
appears that he has been free of bed sores. Ms. Lerwick’s briefing has not
identified any medical record in which B.L. suffered from bed sores and an
independent review of the records has not located any. One 2006 record stated that
B.L. has “[n]o history of skin infections.” Exhibit 98 at 356.
Although Dr. Montoya described this concern early in the hearing (Tr.
1019), the remaining witnesses did not speak to this issue very much. Dr. Sankar
confirmed that B.L.’s risk of bed sores was a factor in Dr. Sankar’s
recommendation for care. Tr. 1167. Ms. Lerwick stated that she wakens every
two hours to reposition B.L. Ms. Lerwick’s checking and repositioning helps to
10 Ms. Lerwick’s post-hearing submissions did not point out any concerns about
diapering.
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maintain B.L.’s neck in a proper position and to avoid a problem in his hip. Tr.
1197.
After the hearing, in response to an order, the parties submitted additional
evidence and argument on this topic. Ms. Fox stated “[B.L.] has some risk to
develop bed sores and skin infections as he is a child who has mobility issues, is
incontinent and uses diapers.” Exhibit W at 1. Ms. Fox characterized B.L.’s risk
as “low risk” because of a practice guideline. The nursing guideline for predicting
bed sores is known as the Braden scale because the original designers were
Barbara Braden and Nancy Bergstrom. On the Braden scale, the lower the
number, the greater the risk for bed sores. When Ms. Fox completed the Braden
scale for B.L., Ms. Fox scored him as a 17, placing him within the “mild risk,”
which ranges from 15 to 18. Exhibit W at 3.
Ms. Lerwick quickly responded to the Secretary’s submission of Ms. Fox’s
Braden scale by submitting two Braden scale evaluations. One came from Terin
Harris, a registered nurse from Premier Healthcare Services. The other came from
Dr. Montoya. Both Nurse Harris and Dr. Montoya scored B.L. as a 12, which falls
in the high risk category of 10-12. Exhibit 137; exhibit 138.
The Secretary submitted two more pieces of evidence, another letter from
Dr. Lubens and another letter from Ms. Fox. Exhibit X; exhibit Y. Dr. Lubens
opines that “patients such as [B.L.] with cerebral palsy have mobility, can roll
over, and have sensation. There is nothing to indicate that [B.L.] is immobile
during the night hours, and cerebral palsy patients like him move and adjust
positions during periods of rest and sleep.” Exhibit X at 1. While questioning the
necessity of a Braden scale for B.L., Dr. Lubens supports Ms. Fox’s earlier
assessment of “mild risk.” Id. at 2.
Ms. Fox did not see a basis for an aide to turn B.L. in the nighttime hours.
“Turning and re-positioning while [B.L.] is sleeping was not reasonabl[y] needed
in the past, and is not reasonabl[y] necessary now or in the future. . . . It is my
professional opinion that [B.L.] will be better served by continuing the protocol he
has enjoyed for years, having a good night[’s] sleep, rather than changing it
without a compelling reason.” Exhibit Y at 3.
Although Dr. Montoya’s and Ms. Harris’s evaluations are relevant, they do
not automatically establish that B.L. is at a high risk for developing a skin
infection. The “conclusion” of any treating doctor “shall not be binding on the
special master.” 42 U.S.C. § 300aa—13(b)(1). Here, the context of Dr. Montoya’s
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and Ms. Harris’s comments is important. Until the September 2013 hearing, they
were not recommending any additional monitoring for skin infections. The
Federal Circuit has held, in the context of a resolving contract dispute, that a
party’s pre-litigation conduct is relevant, see Saul Subsidiary II Ltd. Partnership v.
Barram, 189 F.3d 1324, 1326 (Fed. Cir. 1999), Julius Goldman's Egg City v.
United States, 697 F.2d 1051, 1058 (Fed. Cir.1983), and this principle also
provides some standard for evaluating statements of treating doctors. See Snyder
v. Sec'y of Health & Human Servs., 88 Fed. Cl. 706, 745-46 n.67 (2009) (the
testimony of a treating physician is not “sacrosanct”); Ruiz v. Sec'y of Health &
Human Servs., No. 02-156V, 2007 WL 5161754, at *14 (Fed. Cl. Oct. 15, 2007)
(special master was not arbitrary in rejecting a statement of a treating doctor that
was given years after treatment ended and only in the context of litigation).
Dr. Montoya’s recent assessment that B.L. is at high risk for bed sores
appears to be consistent with his past practice of readily supporting Ms. Lerwick’s
request for services. For example, Dr. Montoya recommended B.L. participate in
Sky Therapy. Exhibit 111B at 3. In his testimony, Dr. Montoya explained that
Ms. Lerwick had researched the facility and Dr. Montoya had relied on the
information she presented when he recommended that Ms. Lerwick’s insurance
company pay for the therapy. Tr. 1047-48, 1062-64.11 Further inquiry of Dr.
Montoya revealed that he was recommending some therapies (such as physical
therapy) that were “reasonably necessary” for B.L. and other therapies (such as
Sky Therapy) that might optimize B.L.’s life. See Tr. 1079-85.
If frequent turning throughout the night were reasonably necessary for
B.L.’s health, then it is likely that Dr. Montoya, Dr. Sankar, and/or the supervisors
at Premier Healthcare Services would have made that recommendation much
earlier. B.L. seems not to be at high risk for developing bed sores because he
changes positions frequently during the day. Sometimes, he is in a wheelchair.
Sometimes, he is upright in a walker. Sometimes, he is on a mat. B.L. has the
ability to roll over. Exhibit 139 (2014 IEP) at 5 (describing B.L.’s gross motor
development). He has voluntary control over some muscles, such as those
associated with reaching for a desired toy or activating a switch. Id.; exhibit 95
(April 26, 2011 Vineland Adaptive Behavior Scales) at 11, 28. These abilities
distinguish B.L. from a more severely neurologically impaired person who is
confined to a bed for 24 hours a day. See exhibit X (Dr. Lubens: “cerebral palsy
11 Dr. Lubens stated that Sky Therapy was unlikely to help B.L. He noted that the
California Child Services has not empaneled this program. Tr. 1314.
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patients like [B.L.] move and adjust position during periods of rest and sleep”).12
Thus, the introduction of an attendant whose job is to turn B.L. throughout the
night is not reasonably necessary and could work only to disrupt B.L.’s sleep.
The lack of a nighttime attendant does not leave B.L. without any protection
against bed sores and/or skin infections. An LVN will spend time (8 hours) with
B.L. every day. The nurse’s routine duties include an evaluation of B.L.’s skin.
See exhibit 107 at PDF 10 (Premiere Healthcare Services plan of care stating
“LVN to perform skilled observation . . . every shift and PRN.”) This daily
monitoring by a licensed medical professional should ensure that if any redness,
infection, or bed sores start to develop, B.L. will receive treatment quickly.
However, given that B.L. has not developed any bed sores, their occurrence is not
likely.
C. Synopsis on Attendant Care
In sum, California provides approximately 76 hours of care weekly to assist
Ms. Lerwick, including 40 hours of LVN care and 36 hours of unlicensed care.
Exhibit 107; Tr. 1112-14, 1253, 1424. The school district provides additional
LVN coverage. Ms. Lerwick has proposed to change this system so that she may
employ an LVN for 24 hours per day.
Ms. Lerwick has not established that B.L. reasonably requires an attendant
24 hours per day. She has not established that a home health aide for overnight
turning is reasonably necessary to prevent bed sores. She has also not established
that 24 hour coverage of an LVN is reasonably necessary. This request was based
upon the risk of seizures and risk of aspiration. But, the Secretary’s plan
adequately accounts for B.L.’s current and reasonably anticipated needs.13
12 Dr. Montoya testified that “[B.L.’s] at risk for skin infections because he is immobile.”
Tr. 1039. However, numerous records indicate that B.L. has an ability to move at least in some
ways. An example relevant to his risk of developing bed sores is that B.L. has the ability to roll
over. In light of these records, Dr. Montoya has not explained why he stated that B.L. is
“immobile.”
13 As discussed earlier, the school system provides LVN coverage while B.L. is attending
school. The Secretary does not have to provide compensation to duplicate this service.
However, the Secretary must provide sufficient compensation for Ms. Lerwick to retain an LVN
for eight hours per day on days when B.L. is not attending school. The “days when [B.L.] is not
attending school” includes not only the days in which the school is closed (weekends, holidays,
(continued…)
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V. Long-term Placement
The second disputed issue is where B.L. should live when he is older than
25. Ms. Lerwick maintains that B.L. should remain in her house where she would
care for him with assistance from licensed vocational nurses. For this proposition,
Ms. Lerwick cites to section 15(c) of the Vaccine Act: “The amount of any
compensation for residential and custodial care and services expenses under
subsection (a)(1) of this section shall be sufficient to enable the compensated
person to remain living at home.” 42 U.S.C. § 300aa—15(c). In contrast, the
Secretary has proposed a plan in which B.L. would live in a residential facility
eventually. The primary statutory basis for the Secretary’s position is a
requirement that the special master award compensation for various expenses,
including residential and custodial care and services expenses, that are “reasonably
necessary.” 42 U.S.C. § 300aa—15(a)(1)(A)(iii)(I). A secondary statutory basis
for the Secretary’s position is found in section 15(f).
Thus, the parties have a basic disagreement about the meaning of the
Vaccine Act. This question of law about how the statute should be interpreted is
resolved first. For the reasons explained in section A., the Secretary has not
presented any persuasive reason for going beyond the plain meaning. Thus, Ms.
Lerwick’s proposed interpretation is accepted and the award of compensation shall
be in accord with her request.
Nevertheless, an alternative factual analysis is presented in section B. This
evaluation assumes, simply for the sake of judicial efficiency, that the Secretary’s
proposed interpretation of the Vaccine Act is correct. Under this assumption, the
Secretary has presented a reasonable plan.
A. Whether the Vaccine Act Requires Sufficient Compensation for
B.L. to Remain in Ms. Lerwick’s Home
The parties’ competing arguments raise a question of statutory
interpretation. Although special masters are not entitled to any deference in
interpreting a statute, Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322,
portions of the summer) but also an estimated 30 days per school year that B.L. misses school.
See exhibit 135 at 2, 6.
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1330 (Fed. Cir. 2011) (en banc), the Federal Circuit has, in a series of cases
interpreting the Vaccine Act, offered instructions in how to interpret the Vaccine
Act.14 An interpretation of this statute, like all statutes, “must begin with the plain
language of the statute.” Id.
Here, section 15(c) is straightforward. Congress has directed special masters
to award compensation that “shall be sufficient to enable the compensated person
to remain living at home.” The simplicity of this phrasing presents an example
when “the language is clear and fits the case, the plain meaning of the statute will
be regarded as conclusive.” Schindler v. Sec'y of Health & Human Servs., 29 F.3d
607, 611 (Fed. Cir. 1994) (citation and internal quotation marks omitted).
The Secretary does not tackle directly section 15(c)’s seemingly plain
language. At best, the Secretary cites to the “reasonably necessary” phrase found
in section 15(a) and a series of cases implementing that provision. Resp’t’s Resp.
to Pet’r’s Mot. for Partial Summary Judgment, filed July 29, 2013, at 3-4. The
Secretary’s implicit argument is that the “reasonably necessary” qualification
restricts the compensation for residential care. However, the Secretary does not
explain why a limitation in section 15(a) should be read into section 15(c).
“It is a well-settled principle of statutory interpretation that a ‘statute is to be
construed in a way which gives meaning and effect to all of its parts.’”
Heinzelman v. Sec'y of Health & Human Servs., 681 F.3d 1374, 1377 (Fed. Cir.
2012) (citations omitted). The way to harmonize the two paragraphs is to interpret
them as a mandate to special masters to award compensation “reasonably
necessary” “to enable the compensated person to remain living at home.”
Here, the Secretary’s proposed plan in which the compensation would not
allow Ms. Lerwick to keep B.L. in her home after he reaches age 25 (exhibit F at
8) is contrary to the language in 15(c). While the Secretary’s plan accommodates
Ms. Lerwick’s wish that B.L. remain in her home for the next 15 years, the
Secretary seems to be adding a qualification to section 15(c) that is not present in
the statute’s text. In the Secretary’s view, the injured person may remain at home
as long as the injured person’s parent is (or parents are) capable of caring for the
person at home. But, judicial officials should not add words to a statute. Kyocera
Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1356 (Fed. Cir. 2008);
14 The parties’ briefs lack any well-developed arguments regarding how statutes should
be interpreted.
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Adam Sommerrock Holzbau, GmbH v. United States, 866 F.2d 427, 429 (Fed. Cir.
1989).
As a matter of policy, the Secretary’s proposal to award compensation to
permit vaccine-injured people to remain at home only as long as someone can care
for them makes some sense. But, as a matter of statutory interpretation, the
Secretary’s argument lacks force. A court’s “duty is limited to interpreting the
statute as it was enacted, not as it arguably should have been enacted.” Beck v.
Sec'y of Health & Human Servs., 924 F.2d 1029, 1034 (Fed. Cir. 1991).
Moreover, the Secretary has not presented any persuasive basis for
concluding that Congress intended a different result. The overall structure of
section 15 suggests that paragraph (a) is a general authorization of compensation.
See Heinzelman, 681 F.3d at 1379. Then, paragraph (c) authorizes compensation
in the specific context of living at home. See Griglock v. Sec'y of Health &
Human Servs., 687 F.3d 1371, 1376 (Fed. Cir. 2012) (different statutory provisions
have different purposes). Citing three Supreme Court cases, the Federal Circuit
has stated a “basic tenet of statutory construction is that a specific statute takes
precedence over a more general one.” Arzio v. Shinseki, 602 F.3d 1343, 1347
(Fed. Cir. 2010). The specificity of section 15(c) is another reason why the
Secretary’s reliance on section 15(a) is unavailing.
Even less helpful is the Secretary’s citation to section 15(f)(4)(A). See
Resp’t’s Resp., filed July 29, 2013, at 4-5. That paragraph discusses the forms
compensation may take. The particular portion on which the Secretary relies
authorizes a special master to order compensation be used “to purchase an annuity
or otherwise be used, with consent of the petitioner, in a manner determined by the
special master to be in the best interests of the petitioner.” Section 15(f)(4)(A).
The limited reference to the petitioner’s “best interest” in the very specific
circumstance contemplated by section 15(f)(4)(A) undermines the Secretary’s
attempt to view the “living at home” provision of section 15(c) as modified by the
“best interest” standard. See Slattery v. United States, 635 F.3d 1298, 1323 (Fed.
Cir. 2011) (en banc) (discussing the canon of statutory expressio unius est
exclusion alterius). The Act’s inclusion of petitioner’s “best interest” in section
15(f)(4)(A) supports an inference that Congress intentionally excluded the same
from section 15(c).
Thus, in terms of the text of the Vaccine Act, the language is plain. As such,
a judicial officer should follow the language as it is written.
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Despite the clarity of the language, the Secretary urges a review of the
legislative history. The legislative history is actually at the forefront of the
Secretary’s brief, appearing in the first paragraph of her argument. Resp’t’s Resp.,
filed July 29, 2013, at 2. The Secretary, however, does not offer any explanation
for why the legislative history should be considered.15 Although normally, “going
behind the plain language of a statute in search of a possibly contrary
congressional intent is ‘a step to be taken cautiously,’” the Federal Circuit has
sanctioned such investigations for the Vaccine Act because it is a complex
legislative scheme. Flowers v. Sec'y of Health & Human Servs., 49 F.3d 1558,
1560 (Fed. Cir. 1995).16
The Secretary relies upon this portion of the legislative history:
Residential and Custodial Care and Service.-Any
compensation award for residential and custodial care
and service expenses is to be sufficient to allow the
compensated person to remain living at home. This
provision is not intended to prevent injured persons from
receiving appropriate institutional care if they and their
families request such services; neither is it intended to
provide for the payment of family living expenses, the
purchase of a home, or the construction of a major
addition. The Committee intends that this provision
allow for in-home medical, rehabilitative, and custodial
care, and such modifications to existing physical
facilities (such as bathroom facilities) as are necessary to
15 At one point, the Secretary states “[w]hile the petitioner argues that the provision in
question [section 15(c)] is unambiguous, . . . the case law says otherwise.” Resp’t’s Resp., filed
July 29, 2013, at 5. This hint is the closest the Secretary comes to arguing that section 15(c) is
ambiguous. But, even if the Secretary had argued more directly that there is an ambiguity, the
Secretary’s argument, by itself, does not establish the ambiguity. See Heinzelman, 681 F.3d at
1382-83 (rejecting the government’s argument that section 15(a) of the Vaccine Act was
ambiguous with respect to whether Social Security Disability Insurance payments should offset a
petitioner’s claim for diminished earning capacity).
16 At issue in Flowers was the relationship between actions for compensation for
allegedly vaccine-caused injuries pending in state court and the opportunity to file a petition
seeking compensation through the Vaccine Act. The Federal Circuit has not discussed whether
section 15(c) is another aspect of the “complex legislative scheme” described in Flowers.
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ensure that injured persons are not required to be
institutionalized for purely economic reasons.
H.R. Rep. No. 99-908, at 3, 5 (1986), reprinted in 1986 U.S.C.C.A.N. at 6344,
6362.
Despite the prominence of the legislative history in the Secretary’s brief, the
Secretary does little to analyze this passage. Drawing on the final line, the
Secretary states that the “legislative history makes clear that the purpose of the
provision is to ensure that injured persons are not required to be institutionalized
for purely economic reasons.” Resp’t’s Resp., filed July 29, 2013, at 3. The
Secretary continues: “However, economic reasons can surely be considered by the
special master along with other factors bearing on the best interest of the child.
These factors have been applied by special masters since the inception of the
Vaccine Program.” Id. Here, the ground on which the Secretary stands is less
firm.
To the extent this legislative history differentiates between allowed and
disallowed items, the type of compensation Ms. Lerwick is requesting falls within
the allowed category. The committee interpreted the proposed legislation as not
permitting “payment of family living expenses, the purchase of a home, or the
construction of a major addition.” Ms. Lerwick is not requesting any of those
items. Instead, Ms. Lerwick is requesting that she receive compensation to pay for
assistants to help her in caring for B.L. at home.17 Whether nurses or home health
aides, these assistants fall within the permitted category of “in-home medical,
rehabilitative, and custodial care.”
Therefore, the legislative history tends to support the position of Ms.
Lerwick and tends to undermine the position of the Secretary. When the
legislative history is not clearly contrary to the words expressed by Congress, the
plain meaning of the statute controls. Youngblood v. Sec'y of Health & Human
Servs., 32 F.3d 552, 555-56 (Fed. Cir. 1994); see also Heinzelman, 681 F.3d at
1379-80 (“the legislative history does not alter our reading of the plain language of
the statute”).
17 As discussed in the preceding section, the parties dispute the qualification level of
these assistants. Ms. Lerwick prefers 24-hour coverage of licensed vocational nurses. The
Secretary supports a mixture of nursing care and home health aide care.
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In addition to the legislative history, the Secretary also relies upon four
decisions from special masters discussing section 15(c) written in 1990. See
Resp’t’s Resp., filed July 29, 2013, at 6-8. These decisions do not constitute
binding precedent. Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625,
630 (1998), aff’d in non-relevant part, 191 F.3d 1344 (Fed. Cir. 1999). These
decisions were issued before the Federal Circuit began interpreting the Vaccine
Act. These old decisions from special masters do not explain why the plain
meaning of section 15(c) should not be implemented, and, therefore, lack
persuasive value. Consequently, the undersigned respectfully declines to follow
them.
In sum, the statute authorizes that compensation “shall be sufficient to
enable the compensated person to remain living at home.” Ms. Lerwick has
demonstrated that for B.L. to remain living at home, she requires assistance from
nurses and home health aides for the remainder of B.L.’s life. She is awarded
compensation for this purpose.
B. Whether the Secretary’s Plan Would Provide “Reasonably
Necessary” Care for B.L, if a Different Ruling Were Made on the Legal
Issue Discussed Above.
As just recognized, this interpretation of the Vaccine Act is at odds with
previous cases. If an appellate court were to disagree with the preceding analysis
of the statute, then the parties and the higher tribunal might benefit from knowing
whether a different interpretation would affect the outcome for Ms. Lerwick. See
Zatuchni v. Sec’y of Health & Human Servs., 73 Fed. Cl. 451, 452 (2006) (noting
the special master “commendably” made alternative factual findings in the context
of a “difficult” legal question and adopting the special master’s findings), aff’d,
516 F.3d 1312 (Fed. Cir. 2008). Thus, the undersigned will address an alternative
scenario if the Secretary’s proffered interpretation of the Vaccine Act were correct.
Based on such an alternative interpretation of the statute, the outcome for Ms.
Lerwick would change. If compensation for the injured person to remain living at
home were limited to amounts that are “reasonably necessary,” then the
Secretary’s plan would be adopted.
What is “reasonably necessary” appears to be a very fact-intensive
determination. See section III., above. For example, B.L.’s current living
environment, which was described in section I., above, is an important
consideration. Other factors include the options the Secretary has proposed as
alternatives to living in Ms. Lerwick’s home. The Secretary’s plan attempts to
27

Case 1:06-vv-00847-MMS Document 246 Filed 07/29/14 Page 28 of 31
account for the inevitable physical changes that Ms. Lerwick and B.L. will
experience over the next decades. These considerations are reflected in the
recommendations from the doctors who have seen B.L. and the two life care
planners.
One important factor is the set of predictions about the child’s and his
parent’s life expectancies. Pursuant to an August 7, 2013 order, the Secretary
submitted information about the number of years B.L. is expected to live. Four
insurance companies calculated his rated age and the average of these estimates
was approximately 25 years. Exhibit R. Dr. Lubens similarly predicted that B.L.
may live another 30 years. Tr. 1317.18
The parties also presented information about Ms. Lerwick’s life expectancy.
(She was almost exactly 40 years old when she gave birth to B.L.) Her current life
expectancy is between 33 years (exhibit S, taken from National Vital Statistics
Report) and 36 years (exhibit 123, taken from Social Security Administration).
Under either prediction, Ms. Lerwick is expected to live longer than B.L.
Although Ms. Lerwick may remain alive, she will inevitably become weaker
and more infirm as she ages. The challenges for Ms. Lerwick in moving or
carrying B.L. will become greater as he ages through adolescence and into
adulthood. Everyone agreed that B.L. will gain weight. Dr. Montoya, for
example, was concerned that B.L.’s growth will interfere with his mother’s ability
to move him. Tr. 1074. Ms. Fox estimated that in a few years, B.L. would weigh
at least 75 pounds and Ms. Woodard did not dispute this assessment. Tr. 1532,
1590. Ms. Fox appeared particularly sensitive to the possibility that Ms. Lerwick
did not grasp how difficult moving a person of this weight will be. Tr. 1533.
Thus, the Secretary questions whether Ms. Lerwick will be able to care for all of
B.L.’s physical needs in her own twilight years and proposes B.L.’s placement in a
residential home. See Resp’t’s Posthr’g Br., filed Jan. 27, 2104, at 16.
Because the Lerwicks live in California, many options are available to them.
The Secretary presented the testimony of Michael Cutchshaw, a director of
operations for ResCare. ResCare operates homes for developmentally disabled
people throughout the country and Mr. Cutchshaw’s area of responsibility includes
18 Ms. Woodard, Ms. Lerwick’s life care planner, was unaware of B.L.'s life expectancy
until Dr. Lubens testified. Tr. 1592.
28

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California. Tr. 1361-62. Mr. Cutchshaw spoke knowledgeably about the different
arrangements available and his testimony greatly assisted in clarifying the issues.
California classifies different types of facilities. See exhibit 122. The most
relevant ones for B.L. are two closely-related types, intermediate care facilities /
developmentally disabled – nursing and intermediate care facilities /
developmentally disabled - habilitative.19 These are typically abbreviated ICF/DD-
N and ICF/DD-H. The differences between “-N” and “-H” primarily concern the
number of hours nurses are available. Tr. 1363.
The federal government certifies ICF/DD-N institutions and the State of
California licenses them. Typically, six individuals live in one residence.
Residents usually have no ability to walk, limited verbal abilities, and seizures. Tr.
1362-65.
The staff does not live with them, but there is 24-hour care. Employees at
these facilities are trained to provide medication even if they are not licensed
nurses. The staff can also suction residents as needed.
There are several advantages for placement at an ICF/DD-N institution.
Staff people, such as physical therapists and occupational therapists, get to know
the resident. Tr. 1373. B.L. would be in an environment with other people who
have abilities similar to his abilities. The structured environment of an established
facility may open new opportunities to B.L. Tr. 1534 (Ms. Fox). For example,
Mr. Cutchshaw stated that ResCare’s philosophy is that every person, regardless of
their limitations, possesses some ability to perform some work-like job. Tr. 1375,
1389-90. Ms. Fox has proposed that an ICF/DD-N is an appropriate level of care
for B.L. after he reaches age 25. Exhibit L at 3.
Ms. Lerwick, with support from Ms. Woodard, opposes a plan anticipating
placing B.L. in a residential home in approximately 15 years. Tr. 1235-43 (Ms.
Woodard), 1402 (Ms. Lerwick). The primary advantage for B.L. is that he will
continue his connection with his mother. Tr. 1235. Ms. Woodard maintains that
19 In exhibit 122, Ms. Lerwick proposed that if, contrary to her preference for in-home
nursing care, compensation funded a residential placement, then B.L. should be placed in a
nursing facility / acute hospital (“NF/AH”). However, as the Secretary noted, after the
respondent presented evidence about the criteria for admission to this type of facility, “petitioner
did not raise the suggestion of a continuous care facility.” Resp’t’s Posthr’g Br. at 19. Ms.
Lerwick’s reply also does not advocate for placement in an NF/AH facility.
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remaining with his mother will offer B.L. “the highest quality of life he’s going to
have.” Id.
If the standard for awarding compensation focused exclusively on the
absolutely best life for B.L., then Ms. Woodard’s approach might be more
creditable. However, if special masters are authorized to award compensation for
only “reasonably necessary” services, it is difficult to see how the additional costs
for 24-hour care at Ms. Lerwick’s home support the negligible, if any,
improvement anticipated in B.L.’s life. Although a transition to a residential home
may separate Ms. Lerwick and B.L. to some degree, Ms. Lerwick can ameliorate
any negative consequences by visiting B.L. as often as she would like. See Tr.
1373 (Mr. Cutchshaw).
Significantly, under Ms. Fox’s plan, B.L. would not leave Ms. Lerwick’s
house until he is 25 and she is 65. Ms. Fox considered that B.L. is eligible for
extended school support until he is age 23. The assistance from the school system
lightens Ms. Lerwick’s responsibility because for several hours a day, another
adult is responsible for B.L.’s immediate needs. Ms. Fox showed further
sensitivity to Ms. Lerwick’s position by proposing two transitional years during
which Ms. Lerwick would require more assistance to offset the lack of support
from the school system. Tr. 1532. In these two years, Ms. Lerwick would have
the benefit of 8 hours of an LVN as well as a live-in attendant. Exhibit L at 3.
This transitional stage, in Ms. Fox’s plan, ends coincidently when Ms.
Lerwick reaches age 65, which is traditionally an age for retirement. Thus, there is
a natural flow to the events in Ms. Fox’s plan.
In sum, if special masters may consider a variety of factors in considering
the long-term placement of a vaccine-injured person, then the Secretary’s plan
offers a reasonable alternative for B.L. Specific factors that show the
reasonableness of the Secretary’s approach include: (1) the plan allows for a
gradual (not abrupt) transition, (2) B.L.’s transition from living with his mother to
living in a residential facility occurs at an age when his mother is older, (3) the
residential facility is located in B.L.’s home state of California, which has devoted
resources to maintaining residential facilities for developmentally disabled people
for many years, and (4) the living environment will not greatly affect B.L.’s well-
being.
30

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C. Synopsis: Long-Term Placement
As previously stated, the Secretary’s plan is based upon her view that “the
care provided by a reputable California provider will meet the Act’s reasonably
necessary standard.” Resp’t’s Posthr’g Br. at 16-17. However, for the reasons
explained above in section A, the “reasonably necessary” standard is not the
standard used for determining the amount of compensation sufficient to enable the
injured person to live at home. Consequently, the Secretary’s plan is not adopted.
Instead, the plan proposed by Ms. Fox for when B.L. is age 23-24 is
continued for the remainder of his life. For attendant care, Ms. Lerwick will
receive sufficient compensation for her to retain an LVN for 8 hours and a live-in
attendant. Exhibit L at 3.
VI. Conclusion
This ruling is intended to resolve the disputes regarding the damages to
which Ms. Lerwick is entitled. The parties are ORDERED to incorporate this
ruling into a proffer that will be the basis for a decision awarding Ms. Lerwick
compensation.
To facilitate this process and to address any questions, a status conference
will be held on Monday, July 21, 2014 at 2:00 P.M. Eastern Time. The Office
of Special Masters will initiate the telephone call.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
31

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_06-vv-00847-3
Date issued/filed: 2014-09-08
Pages: 19
Docket text: PUBLIC DECISION (Originally filed: 8/15/2014) regarding 248 DECISION Proffer. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:06-vv-00847-MMS Document 249 Filed 09/08/14 Page 1 of 19
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
SHERRY LERWICK, legal *
representative of a minor child, * No. 06-847V
B.L., * Special Master Christian J. Moran
*
Petitioner, * Filed: August 15, 2014
*
v. * Damages; decision based on proffer;
* diphtheria-tetanus- acellular pertussis;
SECRETARY OF HEALTH * (“DTaP”); acute disseminated
AND HUMAN SERVICES, * encephalomyelitis (“ADEM”).
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Curtis Webb, Twin Falls, ID, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION AWARDING DAMAGES1
On December 12, 2006, Sherry Lerwick filed a petition on behalf of her
child, B.L., seeking compensation the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa—10 through 34 (2006). In her petition, Ms. Lerwick
alleged that the diphtheria-tetanus- acellular pertussis (“DTaP”) vaccination caused
B.L. to suffer acute disseminated encephalomyelitis (“ADEM”) and Sandifer’s
syndrome. Ms. Lerwick was found entitled to compensation under the Vaccine
Act. Ruling, 2011 WL 4537874 (Fed. Cl. Spec. Mstr. Sept. 8, 2011).
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:06-vv-00847-MMS Document 249 Filed 09/08/14 Page 2 of 19
A hearing was held in September 2013, to resolve the parties’ disputed
damages including B.L.’s attendant care needs. Ms. Lerwick was awarded interim
compensation for her undisputed unreimbursed medical expenses through August
30, 2013 and pain and suffering. Decision, 2014 WL 643708 (Fed. Cl. Spec. Mstr.
Jan. 23, 2014). The undersigned later ruled on B.L.’s disputed attendant care
needs and the parties were ordered to incorporate the ruling into a proffer for the
purpose of awarding Ms. Lerwick’s compensation. Ruling, 2014 WL 3720309
(Fed. Cl. Spec. Mstr. June 30, 2014).
On August 14, 2014, respondent filed a Proffer on Award of Compensation,
to which petitioner agrees. Based upon the record as a whole, the special master
finds the proffer reasonable and that petitioner is entitled to an award as stated in
the Proffer. Pursuant to the Proffer, with Tab A, attached hereto as “Appendix A,”
the court awards petitioner:
A. A lump sum payment of $988,480.53, representing compensation for
life care expenses expected to be incurred during the first year after
judgment ($293,290.44) and lost future earnings ($695,190.09), in the
form of a check payable to petitioner as guardian/conservator of
B.L., for the benefit B.L. No payments shall be made until petitioner
provides respondent with documentation establishing that she has
been appointed as the guardian/conservator of B.L.’s estate. If
petitioner is not authorized by a court of competent jurisdiction to
serve as guardian/conservator of the estate of B.L., any such
payment shall be made to the party or parties appointed by a court
of competent jurisdiction to serve as guardian/conservator of the
estate of B.L. upon submission of written documentation of such
appointment to the Secretary, and
B. A lump sum payment of $29,448.76, representing compensation for
additional past unreimbursable expenses, in the form of a check
payable to petitioner, Sherry Lerwick.
C. A lump sum payment of $92,007.21, representing compensation for
satisfaction of the State of California Medicaid lien, payable jointly
to petitioner and Petitioner agrees to endorse this payment to the
State of California.
2

Case 1:06-vv-00847-MMS Document 249 Filed 09/08/14 Page 3 of 19
D. An amount sufficient to purchase an annuity contract,2 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 company3 from
which the annuity will be purchased.4 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
(or any other party who is appointed) as guardian/conservator of the
estate of B.L., only so long as B.L. 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.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.
2 In respondent’s discretion, respondent may purchase one or more annuity contracts from
one or more life insurance companies.
3 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.
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.
3

Case 1:06-vv-00847-MMS Document 249 Filed 09/08/14 Page 4 of 19
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
4

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_______________________________________
)
SHERRY LERWICK, legal representative )
of a minor child, B.L. )
)
Petitioner, )
)
v. ) No. 06-847V ECF
) Special Master Moran
SECRETARY OF HEALTH AND 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, RN, CNCLP, and petitioner
engaged Helen Woodard, M.A. and Amy Weaver, M.A., to provide an estimation of B.L.’s
future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related”
is as described in the Special Master’s Ruling on Entitlement, filed September 8, 2011. All items
of compensation either identified in the life care plan, or otherwise ordered after adjudication of
several contested items of compensation by the Special Master in his Published Ruling
Regarding Compensation, filed June 30, 2014, are illustrated by the chart entitled Appendix A:
Items of Compensation for B.L., attached hereto at Tab A.1 Respondent proffers that B.L.
should be awarded all items of compensation set forth in the life care plan or otherwise ordered
by the Special Master and illustrated by the chart attached at Tab A. Petitioner agrees.
1 The chart at Tab A illustrates the annual benefits provided by the life care plan or otherwise ordered by
the Special Master. 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-

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B. Lost Future Earnings
The parties agree that based upon the evidence of record, B.L. will not be gainfully
employed in the future. Therefore, respondent proffers that B.L. should be awarded lost future
earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent
proffers that the appropriate award for B.L.’s lost future earnings is $695,190.09. Petitioner
agrees.
C. Pain and Suffering
On April 16, 2014, the Special Master issued a Published Decision, After Consideration
Awarding Compensation on an Interim Basis, awarding pain and suffering in the amount of
$250,000.00. This item of compensation has been paid. Therefore, respondent proffers that
petitioner is not entitled to any additional compensation for pain and suffering under 42 U.S.C. §
300aa-15(a)(4). Petitioner agrees.
D. Additional Past Unreimbursable Expenses
On April 16, 2014, the Special Master issued a Published Decision, After Consideration
Awarding Compensation on an Interim Basis, awarding past unreimbursable expenses through
August 31, 2013, in the amount of $75,000.00. Thus, a portion of this item of compensation has
been paid. Evidence recently supplied by petitioner documents petitioner’s expenditure of
additional past unreimbursable expenses related to B.L.’s vaccine-related injury after August 31,
2013. Respondent proffers that petitioner should be awarded additional past unreimbursable
expenses in the amount of $29,448.76. Petitioner agrees.
E. Medicaid Lien
Respondent proffers that B.L. should be awarded funds to satisfy the State of California
Medicaid lien in the amount of $92,007.21, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of California may have against
-2-

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any individual as a result of any Medicaid payments the State of California has made to, or on
behalf of, B.L. from the date of his eligibility for benefits through the date of judgment in this
case as a result of his vaccine-related injury suffered on or about August 3, 2004, under Title
XIX of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to B.L. should be made through a
combination of lump sum payments and future annuity payments as described below, and request
that the Special Master’s decision and the Court’s judgment award the following:2
A. A lump sum payment of $988,480.53, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($293,290.44) and lost
future earnings ($695,190.09), in the form of a check payable to petitioner as
guardian/conservator of B.L., for the benefit B.L. No payments shall be made until petitioner
provides respondent with documentation establishing that she has been appointed as the
guardian/conservator of B.L.’s estate. If petitioner is not authorized by a court of competent
jurisdiction to serve as guardian/conservator of the estate of B.L., any such payment shall be
made to the party or parties appointed by a court of competent jurisdiction to serve as
guardian/conservator of the estate of B.L. upon submission of written documentation of such
appointment to the Secretary.
B. A lump sum payment of $29,448.76, representing compensation for additional past
unreimbursable expenses, in the form of a check payable to petitioner, Sherry Lerwick.
C. A lump sum payment of $92,007.21, representing compensation for satisfaction of the
State of California Medicaid lien, payable jointly to petitioner and
2 Should B.L. 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 lost future earnings.
-3-

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State of California
Department of Health Care Services
Recovery Branch – MS 4720
P.O. 997421
Sacramento, CA 95899-7421
DHCS Account No: C963399332E-001T
Attn: Mr. Robert McKinney
Petitioner agrees to endorse this payment to the State of California.
D. 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
(or any other party who is appointed) as guardian/conservator of the estate of B.L., only so long
as B.L. 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
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.
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 (con’t)
System of Records, No. 09-15-0056.
-4-

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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 four percent (4%) growth rate should be applied to all non-
medical life care items, and 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: four percent (4%) compounded annually from the date of
judgment for non-medical items, and five percent (5%) compounded annually from the date of
judgment for medical items. Petitioner agrees.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as B.L. 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 B.L.’s death.
3. Guardianship
No payments shall be made until petitioner provides respondent with documentation
establishing that she has been appointed as the guardian/conservator of B.L.’s estate. If
petitioner is not authorized by a court of competent jurisdiction to serve as guardian/ conservator
of the estate of B.L., any such payment shall be made to the party or parties appointed by a court
of competent jurisdiction to serve as guardian/conservator of the estate of B.L. upon submission
of written documentation of such appointment to the Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner as guardian/conservator of
B.L.’s estate: $ 988,480.53
B. Lump Sum paid to petitioner, Sherry Lerwick: $ 29,448.76
-5-

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C. Medicaid Lien: $ 92,007.21
D. An amount sufficient to purchase the annuity contract described
above in section II. D.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
VORIS E. JOHNSON, JR.
Assistant Director
Torts Branch, Civil Division
/s/Darryl R. Wishard
DARRYL R. WISHARD
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) 616-4357
Dated: August 14, 2014
-6-

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Appendix A: Items of Compensation for B.L. Page 1 of 9
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-8 Year 9 Year 10
2014 2015 2016 2017 2018 2019-2021 2022 2023
TriCare MOP 5% 3 ,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00
Medicare Part B Premium 5% M
Medicare Part B Deductible 5% *
Pediatrician/ Internist 5% *
Pediatric Neurologist 5% *
Adult Neurologist 5% *
Gastroenterologist 5% *
Orthopaedic Surgery Eval 5% *
Ophthalmologist 5% *
Physical Medicine & Rehab 5% *
Addt'l Medical Visits 5% *
EEG 5% *
Swallow Study 5% *
Lab Work 5% *
Hospitalizations 5% *
Albuterol 5% * 2 5.00 25.00 25.00 25.00 25.00 25.00 25.00 25.00
Clonaze-pam 5% * 1 5.00 15.00 15.00 15.00 15.00 15.00 15.00 15.00
Diazepam 5% * 2 0.00 20.00 20.00 20.00 20.00 20.00 20.00 20.00
Periactin 5% * 6 0.00 60.00 60.00 60.00 60.00 60.00 60.00 60.00
Trileptical 5% * 2 38.00 238.00 238.00 238.00 238.00 238.00 238.00 238.00
Nexium 5% * 6 0.00 60.00 60.00 60.00 60.00 60.00 60.00 60.00
OTC Meds 4% 4 8.00 48.00 48.00 48.00 48.00 48.00 48.00 48.00
Diapers and Supplies 4% M 2 ,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00
Nebulizer Supplies 4% * 6 .00 6.00 6.00 6.00 6.00 6.00 6.00 6.00
Suctioning Supplies 4% * 4 7.60 47.60 47.60 47.60 47.60 47.60 47.60 47.60
Feeding Program 4% M 2 ,989.35 2,989.35 2,989.35 2,053.13 2,053.13 2,053.13 2,053.13 2,053.13
LVN/ Aide/ Respite 4% M 1 24,472.00 124,472.00 124,472.00 137,324.00 137,324.00 137,324.00 137,324.00 150,176.00
Case Mngt 4% M 2 ,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00
High Intensity PT 4% 7 ,000.00
PT 4% *

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Appendix A: Items of Compensation for B.L. Page 2 of 9
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-8 Year 9 Year 10
2014 2015 2016 2017 2018 2019-2021 2022 2023
OT 4% *
ST 4% *
Neuro-Motor Therapy 4% 16,000.00
Recreational Therapy & Camp 4% 1 ,250.00 1,250.00 1,250.00 1,250.00 1,250.00 1,250.00 1,250.00 1,250.00
Educational Advocate 4% 1 ,200.00 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00
Stander 4% *
Gait Trainer 4% *
Suction Machine 4% *
Nebulizer 4% * 4 .00 4.00 4.00 4.00 4.00 4.00 4.00 4.00
AFOs 4% *
Hand Splints 4% *
Collar 4% *
WC- Manual 4% *
Power WC 4% *
Lift System 4% *
Lift Maint 4% * 5 0.00 50.00 50.00 50.00 50.00 50.00 50.00 50.00
Hospital Bed 4% *
Positioning Wedges 4% 8 47.50 169.50 169.50 169.50 169.50 169.50 169.50 169.50
Sleep Safe Bed 4% 5 ,000.00
Glasses 4% *
Vestibular Swing 4% 3 ,195.00
Educational Games 4% 1 00.00 50.00 50.00 50.00 50.00 50.00 50.00 50.00
iPad 4% 6 89.99 689.99 689.99
Bath Chair 4% 5 60.00
Shower Chair 4% 1 ,200.00 300.00 300.00 300.00 300.00 300.00 300.00 300.00
Adaptive Trike 4% 1 ,390.00
Beach WC 4% 1 ,819.50
Food Thickener 4% 1 49.50 149.50 149.50 149.50 149.50 149.50 149.50 149.50
Modified Van 4% 4 8,424.00
Home Mods 0% 8 5,000.00

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Appendix A: Items of Compensation for B.L. Page 3 of 9
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-8 Year 9 Year 10
2014 2015 2016 2017 2018 2019-2021 2022 2023
Lost Future Earnings 6 95,190.09
Add. Past Expenses 2 9,448.76
Medicaid Lien 9 2,007.21
Annual Totals 1 ,109,936.50 138,583.95 154,583.95 150,499.73 151,189.72 150,499.73 151,189.72 163,351.73
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 the court-appointed guardian/
conservators of the estate of B.L. for the benefit of B.L., for lost future earnings ($695,190.09) and Yr 1 life care
expenses ($293,290.44): $988,480.53.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner, Sherry Lerwick,
for additional past un-reimbursable expenses: $29,448.76.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of California, as reimbursement of the state's Medicaid lien: $92,007.21.
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 in column "G.R." above, compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
In respondent's discretion, items denoted with an "M" payable in 12 monthly installments totaling annual amounts provided.

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Appendix A: Items of Compensation for B.L. Page 4 of 9
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 11 Year 12 Year 13 Years 14-16 Year 17 Years 18-19 Year 20 Year 21
2024 2025 2026 2027-2029 2030 2031-2032 2033 2034
TriCare MOP 5% 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00
Medicare Part B Premium 5% M 1,258.80 1,258.80
Medicare Part B Deductible 5% *
Pediatrician/ Internist 5% *
Pediatric Neurologist 5% *
Adult Neurologist 5% *
Gastroenterologist 5% *
Orthopaedic Surgery Eval 5% *
Ophthalmologist 5% *
Physical Medicine & Rehab 5% *
Addt'l Medical Visits 5% *
EEG 5% *
Swallow Study 5% *
Lab Work 5% *
Hospitalizations 5% *
Albuterol 5% * 25.00 25.00 25.00 25.00 25.00 25.00
Clonaze-pam 5% * 15.00 15.00 15.00 15.00 15.00 15.00 15.00 15.00
Diazepam 5% * 20.00 20.00 20.00 20.00 20.00 20.00 20.00 20.00
Periactin 5% * 60.00 60.00 60.00 60.00 60.00 60.00 60.00 60.00
Trileptical 5% * 238.00 238.00 238.00 238.00 238.00 238.00 238.00 238.00
Nexium 5% * 60.00 60.00 60.00 60.00 60.00 60.00 60.00 60.00
OTC Meds 4% 48.00 48.00 48.00 48.00 48.00 48.00 48.00 48.00
Diapers and Supplies 4% M 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00 2,030.00
Nebulizer Supplies 4% * 6.00 6.00 6.00 6.00 6.00 6.00
Suctioning Supplies 4% * 47.60 47.60 47.60 47.60 47.60 47.60
Feeding Program 4% M 2,053.13 2,053.13 2,053.13 2,053.13 2,053.13 2,053.13 2,053.13 2,053.13
LVN/ Aide/ Respite 4% M 150,176.00 150,176.00 150,176.00 173,738.00 173,738.00 173,738.00 173,738.00 173,738.00
Case Mngt 4% M 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 1,600.00 1,600.00 1,600.00
High Intensity PT 4%
PT 4% *

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Appendix A: Items of Compensation for B.L. Page 5 of 9
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 11 Year 12 Year 13 Years 14-16 Year 17 Years 18-19 Year 20 Year 21
2024 2025 2026 2027-2029 2030 2031-2032 2033 2034
OT 4% *
ST 4% *
Neuro-Motor Therapy 4%
Recreational Therapy & Camp 4% 1,250.00 500.00 500.00 500.00 500.00 500.00 500.00 500.00
Educational Advocate 4% 1,200.00 1,200.00 1,200.00
Stander 4% * 4,659.00 310.00 310.00 310.00 310.00 310.00
Gait Trainer 4% *
Suction Machine 4% *
Nebulizer 4% * 4.00 4.00 4.00 4.00 4.00 4.00
AFOs 4% *
Hand Splints 4% *
Collar 4% *
WC- Manual 4% *
Power WC 4% *
Lift System 4% *
Lift Maint 4% * 50.00 50.00 50.00 50.00 50.00 50.00 50.00 50.00
Hospital Bed 4% *
Positioning Wedges 4% 169.50 169.50 169.50 169.50 169.50 169.50 169.50 169.50
Sleep Safe Bed 4%
Glasses 4% *
Vestibular Swing 4%
Educational Games 4% 50.00 50.00 50.00 50.00 50.00 50.00 50.00 50.00
iPad 4% 689.99 689.99 689.99
Bath Chair 4%
Shower Chair 4% 300.00 300.00 300.00 300.00 300.00 300.00 300.00 300.00
Adaptive Trike 4%
Beach WC 4%
Food Thickener 4% 149.50 149.50 149.50 149.50 149.50 149.50 149.50 149.50
Modified Van 4% 42,420.00 4,242.00 4,242.00 4,242.00 4,242.00 4,242.00 4,242.00 4,242.00
Home Mods 0%

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Appendix A: Items of Compensation for B.L. Page 6 of 9
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 11 Year 12 Year 13 Years 14-16 Year 17 Years 18-19 Year 20 Year 21
2024 2025 2026 2027-2029 2030 2031-2032 2033 2034
Lost Future Earnings
Add. Past Expenses
Medicaid Lien
Annual Totals 205,771.73 166,843.73 172,192.72 189,515.73 190,205.72 188,715.73 186,891.93 187,581.92
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 the court-appointed guardian/
conservators of the estate of B.L. for the benefit of B.L., for lost future earnings ($695,190.09) and Yr 1 life care
expenses ($293,290.44): $988,480.53.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner, Sherry Lerwick,
for additional past un-reimbursable expenses: $29,448.76.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of California, as reimbursement of the state's Medicaid lien: $92,007.21.
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 in column "G.R." above, compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
In respondent's discretion, items denoted with an "M" payable in 12 monthly installments totaling annual amounts provided.

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Appendix A: Items of Compensation for B.L. Page 7 of 9
Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 22-30 Years 31-Life
2035-2043 2044-Life
TriCare MOP 5%
Medicare Part B Premium 5% M 1,258.80 1,258.80
Medicare Part B Deductible 5% *
Pediatrician/ Internist 5% *
Pediatric Neurologist 5% *
Adult Neurologist 5% *
Gastroenterologist 5% *
Orthopaedic Surgery Eval 5% *
Ophthalmologist 5% *
Physical Medicine & Rehab 5% *
Addt'l Medical Visits 5% *
EEG 5% *
Swallow Study 5% *
Lab Work 5% *
Hospitalizations 5% *
Albuterol 5% *
Clonaze-pam 5% * 15.00 15.00
Diazepam 5% * 20.00 20.00
Periactin 5% * 60.00 60.00
Trileptical 5% * 238.00 238.00
Nexium 5% * 60.00 60.00
OTC Meds 4% 48.00 48.00
Diapers and Supplies 4% M 2,030.00 2,030.00
Nebulizer Supplies 4% *
Suctioning Supplies 4% *
Feeding Program 4% M 2,053.13 2,053.13
LVN/ Aide/ Respite 4% M 173,738.00 173,738.00
Case Mngt 4% M 1,600.00 1,600.00
High Intensity PT 4%
PT 4% *

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Appendix A: Items of Compensation for B.L. Page 8 of 9
Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 22-30 Years 31-Life
2035-2043 2044-Life
OT 4% *
ST 4% *
Neuro-Motor Therapy 4%
Recreational Therapy & Camp 4% 500.00
Educational Advocate 4%
Stander 4% * 310.00 310.00
Gait Trainer 4% *
Suction Machine 4% *
Nebulizer 4% *
AFOs 4% *
Hand Splints 4% *
Collar 4% *
WC- Manual 4% *
Power WC 4% *
Lift System 4% *
Lift Maint 4% * 50.00 50.00
Hospital Bed 4% *
Positioning Wedges 4% 169.50 169.50
Sleep Safe Bed 4%
Glasses 4% *
Vestibular Swing 4%
Educational Games 4% 50.00 50.00
iPad 4% 172.50 172.50
Bath Chair 4%
Shower Chair 4% 300.00 300.00
Adaptive Trike 4%
Beach WC 4%
Food Thickener 4% 149.50 149.50
Modified Van 4% 4,242.00 4,242.00
Home Mods 0%

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Appendix A: Items of Compensation for B.L. Page 9 of 9
Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 22-30 Years 31-Life
2035-2043 2044-Life
Lost Future Earnings
Add. Past Expenses
Medicaid Lien
Annual Totals 187,064.43 186,564.43
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 the court-appointed guardian/
conservators of the estate of B.L. for the benefit of B.L., for lost future earnings ($695,190.09) and Yr 1 life care
expenses ($293,290.44): $988,480.53.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner, Sherry Lerwick,
for additional past un-reimbursable expenses: $29,448.76.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of California, as reimbursement of the state's Medicaid lien: $92,007.21.
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 in column "G.R." above, compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
In respondent's discretion, items denoted with an "M" payable in 12 monthly installments totaling annual amounts provided.

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_06-vv-00847-4
Date issued/filed: 2015-02-18
Pages: 8
Docket text: JUDGE VACCINE REPORTED OPINION reissuing 257 Order on Motion for Review. Signed by Judge Margaret M. Sweeney. (kb1)
--------------------------------------------------------------------------------
Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 1 of 8
In the United States Court of Federal Claims
No. 06-847V
(Filed Under Seal: January 30, 2015)
(Reissued for Publication: February 18, 2015)1
*************************************
SHERRY LERWICK, legal representative *
of a minor child, B.L., *
* Vaccine Act; Motion for Review;
Petitioner, * Compensation for Attendant Care
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
Curtis R. Webb, Twin Falls, ID, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
OPINION AND ORDER
SWEENEY, Judge
Petitioner Sherry Lerwick seeks an adjustment of the compensation awarded to her by the
special master under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42
U.S.C. §§ 300aa-1 to -34 (2012), for the ongoing treatment and care of her minor child, B.L.
That compensation award included the costs for an attendant to assist petitioner in caring for
B.L.; specifically, the special master awarded petitioner an amount sufficient to pay for eight
hours of care per day from a licensed vocational nurse (“LVN”), and additional hours of care per
day from a home health aide (“aide”). Petitioner contends, however, that the attendant care that
B.L. requires can only be provided by an LVN, and that the special master’s failure to account for
this fact in his decision awarding compensation was arbitrary and capricious. For the reasons set
1 Vaccine Rule 18(b), contained in Appendix B of the Rules of the United States Court of
Federal Claims, affords each party fourteen days in which to object to the disclosure of (1) trade
secrets or commercial or financial information that is privileged or confidential or (2) medical
information that would constitute “a clearly unwarranted invasion of privacy.” Neither party
objected to the public disclosure of any information contained in this opinion.

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 2 of 8
forth below, the court denies petitioner’s motion for review and sustains the decision of the
special master.
I. BACKGROUND
B.L., who is currently ten years old, suffers from severe cerebral palsy and treatment-
resistant epilepsy, and as a result, requires assistance with all activities of daily living.2 In a
September 8, 2011 decision, the special master found that B.L.’s profound neurological
disabilities were the result of vaccine-caused acute disseminated encephalomyelitis, and that
petitioner was therefore entitled to compensation under the Vaccine Act.
To assist them in assessing the amount of compensation that would be necessary for the
continued treatment and care of B.L., the parties retained life care planners, consulted with
various other individuals, and gathered supporting documentation. Ultimately, the parties were
able to agree on all but two elements of compensation. One dispute concerned where B.L.
should reside, and the other dispute concerned the amount and type of attendant care that B.L.
should receive. It is this second dispute that provides the basis for petitioner’s motion for review.
B.L. currently receives attendant care through several programs administered by the State
of California. Under two of those programs, the state provides B.L. with approximately forty
hours per week of care from an LVN (in addition to the care that he receives from an LVN while
at school). The LVN provides skilled care, and may, among other things, administer medications
to B.L. and suction B.L.’s airway in response to aspiration. Under a third program, petitioner
receives funds sufficient to pay for approximately thirty-six hours per week of unlicensed care for
B.L. An unlicensed individual, such as an aide, can provide nonskilled care, such as
repositioning, grooming, and bathing, but cannot perform skilled tasks, such as administering
medication or suctioning an airway. Petitioner uses the funds provided by the state to pay herself
to care for B.L.
Petitioner’s position before the special master was that B.L. should receive care from an
LVN twenty-four hours per day, every day. In support of her position, petitioner noted that some
of the care that B.L. requires–medications and suctioning–can only be provided in her absence by
a licensed health care professional. Respondent, in contrast, asserted that LVN care should be
limited to eight hours per day, and that additional care could be provided by an aide.
2 The court derives most of the facts and procedural history in this section from the
special master’s decision regarding compensation and the exhibits referenced in that decision.
See generally Lerwick v. Sec’y of HHS, No. 06-847V, 2014 WL 3720309 (Fed. Cl. Spec. Mstr.
June 30, 2014). The court derives additional facts and procedural history from the special
master’s decision awarding compensation. See generally Lerwick v. Sec’y of HHS, No. 06-
847V, 2014 WL 4403044 (Fed. Cl. Spec. Mstr. Aug. 15, 2014). All of the facts in this section
are undisputed.
2

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 3 of 8
Specifically, respondent proposed that B.L. should receive four hours of aide care per day
through age twelve, six hours of aide care per day between ages thirteen and eighteen, eight hours
of aide care per day between ages nineteen and twenty-two, and live-in aide care until age
twenty-four.3 Respondent’s proposal was based on, and improved upon, the level of attendant
care that B.L. currently receives.
The special master evaluated the evidence presented by the parties and, in a June 30, 2014
decision, concluded that petitioner had not established that B.L. should receive around-the-clock
care from an LVN. Instead, the special master found that the attendant care plan proposed by
respondent would satisfy B.L.’s needs. In other words, the special master determined that
petitioner should receive compensation sufficient to pay for eight hours of LVN care per day, at
$37 per hour, and four (then six, then eight) hours of aide care per day, at $18 per hour.4
With the outstanding compensation issues resolved, the only step remaining was the
finalization of the award of compensation to petitioner. At the special master’s direction,
respondent submitted a proffer regarding compensation–reflecting petitioner’s agreement–that
incorporated the special master’s decision on the two disputed elements of compensation. In an
August 15, 2014 decision, the special master awarded petitioner the compensation described in
the proffer and directed the entry of judgment.
One month later, petitioner filed a motion for review of the special master’s decision
awarding compensation. Her sole objection to the decision relates to the compensation that the
special master awarded for aide care. Petitioner does not object to the number of hours
designated for aide care; rather, she contends that those hours should be compensated at the LVN
rate of $37 per hour. Petitioner argues that care from an LVN is necessary during these hours
because the parties agreed that all care should be provided by a home health agency, and such an
agency would refuse to send an aide to care for an individual with B.L.’s needs. Respondent
opposes petitioner’s motion, and the court heard argument on January 28, 2015.
II. DISCUSSION
The United States Court of Federal Claims possesses jurisdiction to review the record of
the proceedings before a special master, and upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
3 In the portion of his decision not challenged by petitioner, the special master ruled that
B.L. should receive live-in aide care beginning at age twenty-three and lasting for the remainder
of his life. See Lerwick, 2014 WL 3720309, at *19.
4 Compensation for the live-in aide who would help care for B.L. after he reached the age
of twenty-three would be based on a daily, not an hourly, rate.
3

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 4 of 8
(B) set aside any findings of fact or conclusion 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). In the instant case, petitioner argues that the special master’s
decision not to compensate all of the attendant care hours at the LVN rate of $37 per hour was
arbitrary and capricious. The “arbitrary and capricious” standard “is a highly deferential standard
of review. If the special master has considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision, reversible error will be extremely
difficult to demonstrate.” Hines v. Sec’y of HHS, 940 F.2d 1518, 1528 (Fed. Cir. 1991); accord
Lampe v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed. Cir. 2000) (“The arbitrary and capricious
standard of review is difficult for an appellant to satisfy with respect to any issue . . . .”).
A. The Evidence Before the Special Master
As previously noted, petitioner’s position that all attendant care hours should be
compensated at the LVN rate of $37 per hour is based on her contention that a home health
agency would refuse to send an aide to care for an individual with B.L.’s needs. This contention
rests on three undisputed facts that are amply supported in the record. First, B.L.’s attendant care
should be provided through a home health agency. Tr. 1231 (Woodard), 1560 (Fox). Second, in
California, aides are not permitted to perform functions that must be performed by a licensed
health care professional, such as administering medication and suctioning an airway. Pet’r Ex.
115 at 19; accord Resp’t Ex. H; Tr. 1560 (Fox), 1588 (Woodard). And third, the home health
agency currently providing attendant care for B.L.–Premier Healthcare Services–only provides
care from an LVN, who is supervised by a registered nurse (“RN”). Pet’r Ex. 107 at 10; Pet’r
Ex. 134 at 4; accord Tr. 1112 (Lerwick).
From these three undisputed, well-supported facts, petitioner reasons that only an LVN
can provide the care that B.L. needs. This conclusion, petitioner asserts, is further supported by
other evidence in the record. For example, petitioner cites a letter from another home health
agency, Maxim Healthcare Services, which provides:
Based on our clinical assessment of [B.L.], Maxim will recommend if necessary
to his primary care physician[] that his home health service provided to him by a
home health care agency be provided by a Licensed Vocational Nurse (LVN) or a
provider with greater skill and licensure[] (such as a Registered Nurse). [B.L.]’s
seizure activity and risk of aspiration during feedings require continuous
monitoring. Moreover, he has medications which require daily administration and
also as needed for prolonged seizure activity. Based on the foregoing, at this time
4

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 5 of 8
[B.L.]’s care should be provided by either his parent, a licensed vocational nurse
or provider with greater skill and licensure.
Pet’r Ex. 113 at 2; see also Tr. 1596-97 (Woodard) (noting that “in most states,” only a parent or
a nurse can administer seizure medications). Petitioner also relies on the testimony of a pediatric
neurologist retained by respondent, Perry R. Lubens, MD. Dr. Lubens testified that only an LVN
can administer medication to B.L. Tr. 1278 (Lubens). However, it bears noting that Dr. Lubens
made this statement while expressing his agreement with the attendant care plan proposed by
respondent’s life care planner, Laura E. Fox, MSN, RN, as the following excerpt from the
hearing transcript demonstrates:
Q. . . . Ms. Fox has recommended nursing care for now through age twelve at
eight hours per day.
A. Correct.
Q. And then aide-level care at four hours per day–
A. Correct.
Q. –for a total of twelve hours.
. . . .
Q. . . . [A]re those care recommendations consistent with a child with [B.L.]’s
needs?
A. I think so, yes.
Q. Why?
A. Well, first of all, I think . . . he’s getting this kind of LVN care now, and he’s
. . . getting the LVN care during the day when he takes his medication. . . . I
think that it’s reasonable to give him LVN care, especially if he goes through an
agency, because no other care provider could give him medication except an
LVN-level person. . . .
Q. . . . [W]hat level of care would you recommend for the remaining twelve
hours?
A. I think that he needs somebody that’s attentive to his care, a parent substitute.
It has to be a responsible adult. It has to be somebody who understands his
problems. It has to be somebody that’s going to be available to take care of him.
5

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 6 of 8
But I don’t think it needs to be a licensed person. It needs to be a responsible
adult who understands [B.L.]’s problems.
Id. at 1277-78 (Lubens). In other words, Dr. Lubens recognized both that some tasks necessary
for the care of B.L. would need to be performed by an LVN, and that the aide care recommended
by Ms. Fox for B.L. was appropriate.
Finally, petitioner relies on the testimony of her life care planner, Helen M. Woodard,
MA. In response to a question regarding the need for the around-the-clock LVN care that she
recommended in her life care plan, Ms. Woodard stated: “If [B.L.] gets his care through a home
health agency, they will send only licensed care providers, because he has to have medication.
He has to be assessed. He has to be given as-needed medication. And they can’t send unlicensed
people to do that.” Id. at 1231 (Woodard); accord id. at 1576 (Woodard) (“An agency wouldn’t
send an aide if the mother wasn’t going to be at home. And in all likelihood, they wouldn’t staff
[B.L.] with an aide even then.”); see also id. at 1231 (Woodard) (explaining that by “licensed,”
she meant an LVN or RN). Ms. Woodard further testified: “[I]f somebody is sent from a home
health agency to do this care, it has to be from an LVN. They will not send–and I think everyone
agrees–they are not going to send an aide to administer medications or do suctioning . . . .” Id. at
1588 (Woodard).
Respondent acknowledges that B.L.’s attendant care should be provided through a home
health agency, that an aide cannot administer medication or suction an airway, and that B.L.’s
current home health agency only provides care for B.L. using an LVN and an RN. However,
respondent contends that the evidence in the record does not support petitioner’s contention that
a home health agency would not provide an aide to help care for B.L.
In support of her position, respondent notes that aide care is available from home health
agencies in California. See Resp’t Ex. H.5 Respondent further relies on Ms. Fox’s life care plan
and testimony. In developing her recommendations for the amount and types of attendant care
that B.L. would need in the future, Ms. Fox considered the amount and types of attendant care
that B.L. currently receives from the State of California. Tr. 1516-17, 1520-21 (Fox). She
testified that B.L.’s current attendant care plan reflects a determination that B.L. requires care
from an LVN when petitioner is not present, but that when B.L. is at home with his family, the
presence of an LVN is not necessary because family members can administer his medications and
suction his airway. Id. at 1519 (Fox); accord Pet’r Ex. 107 at 10 (noting that petitioner would
“provide all care, including medications and treatment, when Premier Health Services employee
is not on duty”). Accordingly, in her life care plan, Ms. Fox recommended that only some of
5 In her response to petitioner’s motion for review, respondent asserts that the websites of
Premier Healthcare Services and Maxim Healthcare Services reflect that aide care is available
from home health agencies in California. However, because there is no indication that the
content of these websites was before the special master when he rendered his decision, the court
will not consider them.
6

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 7 of 8
B.L.’s attendant care be provided by an LVN, and that other attendant care could be provided by
an aide. Resp’t Ex. L at 1-3; see also Tr. 1519 (Fox) (remarking that the “majority” of B.L.’s
care “can be done by an aide”). In both her life care plan and her testimony, Ms. Fox indicated
that all of the attendant care that she recommended for B.L., whether from an LVN or from an
aide, should be provided through a home health agency. Tr. 1289 (respondent’s counsel)
(relaying Ms. Fox’s statement that her life care plan was “based on cost and care provided
through an agency”), 1560 (Fox) (agreeing that all of the aide-level care that she recommended
should be provided through an agency).
B. The Special Master’s Decision Was Not Arbitrary or Capricious
As reflected in his comprehensive, well-written decision, the special master considered
the evidence presented by the parties in support of their positions on B.L.’s attendant care needs.
See, e.g., Lerwick, 2014 WL 3720309, at *4, 6-7, 13. Upon reviewing that evidence, the special
master rejected petitioner’s contentions that B.L.’s seizures, risk of aspiration, and risk of skin
infections required around-the-clock care from an LVN, id. at *8-13, and instead found that the
attendant care plan proposed by respondent–amended to provide B.L. with a live-in aide past age
twenty-four–would satisfy B.L.’s current and future needs, id. at *13. In discussing respondent’s
plan, which was prepared by Ms. Fox, the special master explained:
The starting point for Ms. Fox is the level of care that B.L. is receiving from
various California programs. Because Ms. Fox concluded that B.L.’s 2013 care
plan was reasonable, her goal was either to continue that plan or to increase it.
Under B.L.’s current plan, an LVN needs to be present for B.L. when Ms. Lerwick
is absent because B.L. may need medication. But, when Ms. Lerwick is with
B.L., there is a need for support services only. If B.L. needs medication, Ms.
Lerwick can provide it to her son.
Id. at *6 (citations omitted). The special master further remarked on the attendant care that B.L.
receives through the State of California, which formed the basis of respondent’s plan:
California does not currently provide an LVN to watch B.L. 24 hours per
day. If B.L. required continual monitoring from a licensed nurse, then it seems
likely that the plan of care developed through the California Regional Centers
would have given Ms. Lerwick this assistance. Instead, California is providing
170 hours of LVN assistance per month, and approximately 195 hours of
aide-level care. With approximately 12 hours of assistance per day, B.L. has done
about as well as possible. . . .
California’s provision of LVN care plus aide care is influential. By all
accounts, California has established an admirable system to care for
developmentally disabled individuals. Ms. Fox testified about the California
system and Ms. Woodard did not contradict Ms. Fox’s assessment.
7

Case 1:06-vv-00847-MMS Document 259 Filed 02/18/15 Page 8 of 8
Id. at *7-8 (footnote and citations omitted). And, the special master found Ms. Fox to be
“particularly knowledgeable because she is a nurse licensed in California and has supervised
home health aides in California.” Id. at *7.
There is sufficient evidence in the record to support the special master’s acceptance of
respondent’s attendant care plan. Although an LVN must provide some of B.L.’s care, the
evidence reflects that much of the assistance that B.L. requires could be provided by an aide. Ms.
Fox testified that the aide care that she recommended for B.L. was to be provided by a home
health agency, and as a nurse licensed in California who has supervised aides, she would know
whether a home health agency could provide an aide to help care for B.L. Indeed, it would be
illogical and irresponsible for Ms. Fox, an experienced life care planner and registered nurse, to
recommend an attendant care plan for B.L. that included the use of an aide supplied by a home
health agency if she knew that a home health agency would decline to provide an aide to help
care for B.L. Given this evidence, it is of no consequence that neither Ms. Fox, nor any other
witness, affirmatively testified that a home health agency would supply an aide to care for B.L.
Petitioner has cited only one piece of evidence that supports her position that a home
health agency would refuse to provide an aide to help care for B.L.: Ms. Woodard testified that
“in all likelihood,” a home health agency would not “staff [B.L.] with an aide” even if petitioner
were present to supervise the aide. Tr. 1576 (Woodward). The phrase “in all likelihood” is not
equivalent to the words “must” or “required.” The remaining evidence that petitioner relies upon
reflects only that a home health agency would not send an aide to administer medications to B.L.
or to suction B.L.’s airway. See, e.g., id. at 1231 (Woodard), 1278 (Lubens), 1588, 1596-97
(Woodard); Pet’r Ex. 113 at 2. Thus, it was not error for the special master to credit Ms. Fox’s
testimony and life care plan over the evidence cited by petitioner. The special master considered
the relevant evidence, drew the plausible inference that a home health agency would provide both
LVN care and aide care for B.L., and articulated a rational basis for his decision to award
petitioner compensation based on respondent’s attendant care plan, which provided for a
combination of LVN care and aide care for B.L. Accordingly, the special master’s decision was
not arbitrary or capricious.
III. CONCLUSION
For the reasons stated above, the court DENIES petitioner’s motion for review and
SUSTAINS the decision of the special master. The clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
8

================================================================================
DOCUMENT 5: USCOURTS-cofc-1_06-vv-00847-5
Date issued/filed: 2015-04-23
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 03/31/2015) regarding 262 DECISION Fees Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:06-vv-00847-MMS Document 265 Filed 04/23/15 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
SHERRY LERWICK, * No. 06-847V
legal representative of a minor child, * Special Master Christian J. Moran
B.L., *
* Filed: March 31, 2015
Petitioner, *
*
v. * Attorneys’ fees and costs; award
* in the amount to which
SECRETARY OF HEALTH * respondent does not object.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On March 24, 2015, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
informally submitted a draft application for attorneys’ fees and costs to respondent
for review. Upon review of petitioner’s application, respondent raised objections
to certain items. Based on subsequent discussions, petitioner amended her
application to request $94,000.00, an amount to which respondent does not object.
The Court awards this amount.
On December 12, 2006, Sherry Lerwick filed a petition for compensation on
behalf of her minor son, B.L, alleging that the diphtheria, tetanus, acellular
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:06-vv-00847-MMS Document 265 Filed 04/23/15 Page 2 of 3
2
pertussis (DTaP) vaccine that B.L. received on August 3, 2004, caused him to
suffer acute disseminated encephalomyelitis, also known as ADEM. Ms. Lerwick
was found entitled to compensation and was later awarded damages. See
Entitlement Ruling, 2011 WL 4537874 (Fed. Cl. Spec. Mstr. Sept. 8, 2011),
Decision Awarding Interim Compensation, 2014 WL 1897656 (Fed. Cl. Spec.
Mstr. Apr. 16, 2014), Ruling Regarding Compensation, 2014 WL 3720309 (Fed.
Cl. Spec. Mstr. June 30, 2014), Decision Awarding Damages, 2014 WL 4403044
(Fed. Cl. Spec. Mstr. Aug. 15, 2014), mot. for rev. denied, 2015 WL 682405 (Fed.
Cl. Jan. 30, 2015). Because petitioner was found to be entitled to compensation,
she is entitled to an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).
Ms. Lerwick was previously awarded interim attorneys’ fees and costs in the
total amount of $300,000.00. See Decisions, issued May 26, 2010 and Jan. 23,
2014. Ms. Lerwick’s pending application begins after her most recent application
for interim fees ended. Activities performed during this timeframe include the
preparation of a post-hearing reply brief following a September 2013 damages
hearing, the preparation of a reply to her motion for interim compensation, the
preparation of a response to a motion for reconsideration of the decision awarding
compensation on an interim basis, as well as the preparation and oral argument of
petitioner’s motion for review of the undersigned’s August 15, 2014 decision
awarding damages on proffer. In addition, petitioner retained a separate attorney
to assist with probate matters in California.
After negotiations, petitioner seeks a total of $69,406.00, in final attorneys’
fees and costs for her counsel. Additionally, in compliance with General Order
No. 9, petitioner states that she incurred $24,594.00, in out-of-pocket litigation
expenses while pursuing this claim. This sum represents the amount of the bond
the probate court required when it appointed Ms. Lerwick the guardian of B.L.’s
estate. Respondent has no objection to the amount requested for attorneys’ fees
and costs.
After reviewing the request, the Court awards the following:
a. A lump sum of $69,406.00, in the form of a check made payable to
petitioner, Sherry Lerwick, and petitioner’s attorney, Curtis R.
Webb, Esq., for attorneys’ fees and other litigation costs available
under 42 U.S.C. § 300aa-15(e).

Case 1:06-vv-00847-MMS Document 265 Filed 04/23/15 Page 3 of 3
3
b. A lump sum of $24,594.00, payable to petitioner, Sherry Lerwick, for
costs she incurred in pursuit of her petition.
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.2
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.